text:
    Benedict vs. Stevens.
    The statute, (Rev. Stat., tit. L, chap, xi., sec. 150,) which authorizes a recovery against a part of the defendants, in a suit brought against two or more persons, where á case is made out against a part and not against all, applies to the case of defendants sued as copartners, under a copartnership name.
    Whether, under the statute, a recovery can be had against one of several defendants, whose liability is that of a partner with a person not a party to the suit — qu.
    This was an action of book debt, against Nathaniel B. Stevens and Augustus P. Lawrence, described in the writ as partners under the name of N. B. Stevens & Company.
    The suit was brought to recover the price of certain castings ordered by the defendant Stevens, and charged by the plaintiff to the firm of N. B. Stevens & Company, for whom he supposed they were ordered. It appeared that this firm had been previously dissolved, and the castings were procured by Stevens as a partner in, and for the benefit of, the firm of Lawrence & Stevens, a new firm, consisting of himself and one E. G. Lawrence. The plaintiff had had no previous dealings with the first-named firm, and due notice of its dissolution had been given. Stevens did not state, at the time he ordered the castings, for whom they were procured.
    The case came before the superior court for the county of Litchfield, at its March term, 1856, on the special finding of an auditor. The court, under the statute, (Rev. Stat., tit. i., chap, xi., sec. 150), rendered judgment against the defendant Stevens individually, for the amount due the plaintiff, and in favor of the defendant Lawrence, for his costs; upon which the defendant Stevens filed a motion in error, assigning as error the rendering of such judgment against him individually, while the declaration alleged an indebtedness of the copartnership of N. B. Stevens & Company.

      Granger and Peck, for the plaintiff in error.
    The statute authorizing a recovery against part of the defendants, on a failure to make out a case against all, does not apply to a case like the present. The case intended was one where two persons are sued as jointly liable, and it proves that but one of them is liable, and he liable individually. Here the defendants are sued as partners; the copartnership, which is a unit, being really the defendant. Barnum v. Landon, 25 Conn., 137. And Stevens, against whom judgment was rendered, is not individually liable, but only as a member of the firm of Lawrence & Stevens. That firm should have been sued, and Stevens ought not to be subjected in any suit not brought against that firm. The plaintiff has failed to make out a case against either defendant as a sole promisor, and therefore can not recover against either under the statute.

      Hubbard and Woodruff, for defendant in error.
    The case falls directly within both the object and the letter of the statute in question.
    The description of the defendants as “ copartners under the name of N. B. Stevens & Company,” does not make the suit an action against the copartnership as such. It is a mere description of the defendants, and of no importance.
    Although Lawrence & Stevens might have been sued, yet Stevens, as a member of that firm, is liable individually, and judgment could be recovered against him individually, where he does not plead thé nonjoinder of his partner. Besides, he ordered the castings without informing the plaintiff that they were for the firm ; so that, on ordinary principles of agency, he would be individually liable.

      The statute referred to is as follows:

        " In all actions against two or more defendants, if the plaintiff shall fail to sustain a good cause of action against any defendant or defendants, he shall not, for that reason, be prevented from recovering judgment against the other defendant or defendants; and the defendant or defendants against whom no recovery is obtained, shall be entitled to judgment for costs,”

   Hinman, J.

The defendant, one of the firm of Lawrence & Stevens, ordered of the plaintiff certain castings, which were sent to Norfolk, according to the defendant’s directions, not informing him for whom they were ordered. The plaintiff supposed that they were intended for the firm of N. B. Stevens & Co., which had consisted of the defendant and Augustus P. Lawrence, and he accordingly charged them to that firm, and commenced his suit against them as partners. But in April, 1851, previous to the ordering of the castings, the old firm was dissolved, and a .new copartnership formed between the defendant and E. Grove Lawrence, under the name of Lawrence & Stevens; and, as due notice of the dissolution of the old firm was given, and the plaintiff, moreover, had never had any dealings with that firm, he of course could not recover against Augustus P. Lawrence. Stevens, however, was undoubtedly liable, as the goods were ordered by him personally, so that we need not consider what would be the effect if he were liable only as partner with E. G. Lawrence; and the statute, tit. i., chap, xi., sec. 150, made it the duty of the court to render judgment against him, because, against him, the plaintiff sustained his case. Accordingly, judgment was so rendered, and Lawrence, who was sued as his partner, had judgment for costs. This is in strict conformity to the statute, and is correct. The original plaintiff is, therefore, entitled to judgment against Stevens, on his motion in error.

In this opinion Storrs, J., concurred. Waite, C. J., was not present.

Judgment affirmed.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Clark vs. Terry.
    A., in February, agreed by parol to labor for B. for one year from the 1st day of April next following, at a specified price per day, payable at the end of each half year. He commenced laboring under the contract on the 1st day of April, and continued till the 11th day of June, when, without sufficient cause, he left the service of B., and in July next following, brought an action of assumpsit to recover for the labor performed, claiming that the contract was inoperative by reason of the statute of frauds. Held, that the terms of the contract were nevertheless to be considered, in determining the time when payment was to be made, and that the suit, having been instituted before the time when, by the contract, the first payment was to be made, was prematurely brought.
    The case of Comes v. Lamson, 16 Conn. U., 246, commented on.
    It is decided in that case, that a claim otherwise legal and just, can not be defeated by setting up a contract inoperative under the statute of frauds.
    But this does not imply that services performed under such a contract, stand on the same ground as if no contract had been made.
    Where the performance of the contract is a condition precedent of the right to recover, there can be no recovery until the contract is performed.
    And the condition does not become void, merely because it constitutes a part of the terms of a contract which can not be enforced by action.
    Where, in such cases, there is a right of recovery, the rule determining the amount to be recovered, is the same that prevails where services have been performed under a special contract, the terms of which have not been complied with, but which services have been of benefit to, and accepted by, the party for whom they were rendered ; in which case, the amountof the benefit, rather than the ordinary value of such services, furnishes the rule of compensation.
    And in determining the amount of such compensation, all the circumstances under which the services were rendered, are to be taken into consideration, and among them the existence and terms of the contract.
    This was an action of assumpsit, tried upon the general issue, closed to the court, at the term of the superior court for the county of New London, holden in August, 1856.
    On the trial, the plaintiff sought to recover for fifty-nine and three-fourths days’ labor performed by him between the 1st day of April and the 11th day of June in the year 1856, at the rate of $>1.62-|- per day. The suit was brought on the 26th day of July, 1856.
    It was found by the court, that the labor was performed under a parol contract made on .the 18th day of February, 1856, by which the plaintiff agreed to work for the defendant for one year from the 1st day of April, 1856, for fj> 1.62J per day, to be paid semi-annually on the first days of October, 1856, and April, 1857 ; and that the plaintiff left the service of the defendant on the 11th day of June, 1856, without the consent of the defendant, and solely because he was offered higher wages elsewhere.
    The plaintiff claimed that as this contract was not to be performed within one year from the time it was made, it was inoperative under the statute of frauds; and that he was entitled to recover what his work was reasonably worth to the defendant, making a reasonable deduction for any damage sustained by the defendant in consequence of his leaving his service before the expiration of the year.
    The defendant claimed that the performance of the contract was a condition precedent of the plaintiff’s right of recovery, and that not having performed, he was not entitled to recover.
    He also claimed that, if the plaintiff was entitled to a reasonable compensation, no right of action accrued therefor until the time fixed by the contract for payment.

      The court held, that the defendant was not precluded, by the parol character of the contract, from showing that the plaintiff’s labor was performed under it; and that the contract being entire, and not having been performed by the plaintiff, he could not recover; and rendered judgment for the defendant. ,
    The plaintiff moved for a new trial, upon sundry exceptions. Other questions made, are not of importance in the view of the case taken by this court.

      Me Curdy and Crosby, in support of the motion.
    1. A contract void under the statute of frauds can not be used as a defense. Comes v. Lamson, 16 Conn. R., 246. 1 Sw. Dig., 262. Smith on Master and Servant, 72 Law Lib., 17, 20.
    2. This contract, not being to be performed within a year, is clearly within the statute of frauds. Lower v. Winters, 7 Cowen, 263. Russell v. Slade, 12 Conn. R., 456. Boydell v. Drummonds 11 East., 142. Bracegirdle v. Heald, 1 B. & A., 722. Drummond v. Burrell, 13 Wend., 367. Shute v. Dorr, 5 Wend., 204, and authorities supra.
    3. Part performance does not take it out of the statute. Comes v. Lamson, 16 Conn. R., 246. Eaton v. Whitaker, 18 Conn. R., 222, and authorities supra.
    4. Even if there was a valid contract between the parties, the plaintiff has not forfeited his right to compensation by leaving, and may still recover so much as his services were reasonably worth.
    This point is expressly decided in Britton v. Turner, 6 N. Hamp., 481, and this decision is referred to with special approbation by Parsons, in his recent work on contracts. 1 Pars. on Cont., 524, 525, notes p. and q. See also 2 Pars. on Cont., 35, note d. Chitty on Cont., 6 Am. ed., 580, note, 2 Smith’s Lead. Cas., 14. Snow v. Inhabitants of Ware, 13 Met., 49. Oxendale v. Wetherell, 9 B. & C., 386. Reed v. Rann, 10 B. & C., 439. Bowher v. Hoyt, 18 Pick., 555. Hayward v. Leonard, 7 Pick., 181. Smith v. Lowell, 8 Pick., 178.

      Halsey, contra.
    1. The contract in this case was entire, and the plaintiff, having left the defendant’s service without cause, before the expiration of the year, and before the time of payment, can not recover. 1 Pars, on Cont., 522, and note. Chit, on Cont., 501, note 1. Notes to Cutter v. Powell, 2 Smith’s Lead. Cas., 41. Such has always been the rule in Connecticut.
    2. The parol character of the contract does not render it unavailable as a defense to the plaintiff’s action. 1st. The statute of frauds operates as a rule of evidence. Here the evidence was received without objection, both parties offering parol evidence to prove the contract. The contract being proved, the court was bound to give it the legal effect which the defendant claimed. 2d. The statute does not declare contracts within it void, but that no action shall be maintained upon them. Contracts good at common law, remain good for all purposes except those expressly negatived by the statute. 2 Pars. on Cont., 337. Leroux v. Brown, 14 Eng. L. & E., 247. The contract may, therefore, be shown for many purposes. Stone v. Dennison, 13 Pick., 1. Larkin v. Avery, 23 Conn. R., 304. 10 Pet. Abr., 95, note. Richardson v. Gifford, 1 A. & E., 52, (28 E. C. L., 35.) 3d. It should regulate the amount and time of payment. The plaintiff could not recover, therefore, for the reason that the action was prematurely brought. The time for payment had not arrived. Hatwell v. Jewett, 9 N. Hamp. K., 249.
    3. The stipulation for payment on the 1st of October, was not within the statute. Moore v. Fox, 10 John., 244. Notes to Peters v. Compton, 1 Smith’s Lead. Cas., 376.
    4. If the contract can not be shown, then the law presumes the hiring to be by the year. Chit, on Cont., 501. Parsons on Cont., 518, note.
   Hinman, J.

This action was commenced in July, 1856, and in it the plaintiff claims to recover for fifty-nine and three-fourths days’ labor performed for the defendant, at the rate of $1.62J per day.

The labor was performed under a parol contract for a year’s labor at that rate, which was made in February, 185S, and was to commence the 1st day of April then next, and the wages to be paid semi-annually, on the 1st day of October and the 1st day of April next after the service was to commence. After the plaintiff had worked for the time for which he claims to recover, he left the service without cause, and merely because he was offered higher wages, and thus refused to perform his contract.

The superior court was of opinion that he was not entitled to recover, on the ground that the contract was entire, for a year’s service, which the plaintiff refused to perform, and was not, therefore, entitled to anything for what he had done under it. Were it not for the statute of frauds and perjuries, there could be no doubt as to the correctness of this opinion. 2 Phil. Ev., 115.

But the plaintiff relies upon that clause of the statute which provides that no suit in law or equity shall be brought or maintained upon any contract or agreement that is not to be performed for the space of one year from the making thereof, unless the agreement shall be made in writing, &c.; and upon the case of Gomes v. Lamson, 16 Conn. R., 246, in which it was held that a claim for labor, otherwise legal and just, could not be defeated, by setting up the non-performance of a contract on which no action could be maintained under this clause of the statute.

We do not feel called upon to decide this point in the case, because it appears to us, from the facts found by the superior court, that the suit was commenced before the debt was due, even if the plaintiff can maintain an action for the wages earned before he left the defendant’s service.

It is true, that if the plaintiff can recover at all, it must be for a quantum meruit, or so much as he deserves to have, for the service performed. But this is not to be measured by the value of such services alone, as if no contract had been made between the parties. Nor can the time of payment for the service, as it was agreed to in the contract, be disregarded. It would obviously be unjust for a party to contract to labor for a year and a day, at a stipulated rate of wages, to be paid at the end of the term, and, after he had labored half the time, refuse to go on, and demand immediate payment for the wages earned, before the expiration of the time.

The case of Comes v. Lamson shows that a just and legal claim can not be resisted, on the ground that the service was performed under a contract which is inoperative by reason of the statute; but this does not imply that services performed under such a contract, stand upon the same footing in respect to the compensation to be paid therefor, as if no such contract had been made. On the contrary, it is said in that case, that where a person has entered into a contract for service, and has made the performance on his part a condition precedent to his right to recover, he can not enforce payment till he has performed the service. And it may be added that, so long as there is nothing illegal in the condition, it does not become void merely because it constitutes part of the terms of a contract which can not be enforced by action.

In respect to the amount of compensation for such services, the rule must be the same as that which prevails where services have been performed under a special contract, the terms of which have not been complied with, but the services have nevertheless been of benefit to the other party, and he has accepted them by receiving the benefit. In this class of cases, we suppose the amount of such benefit, rather than the ordinary value of such services, is the rule. 2 Sm. L. C., 35,42.

In the case of Comes v. Lamson, it was said the parties contracted with full knowledge of the law which entered into and formed a part of the contract; and on the ground that they knew that no suit could be maintained on it, if it was not performed, the court would not presume that the intention was that nothing should be paid for any service less than the full term, which might be rendered under it. But had the contract been of such a nature as to exclude the idea of any compensation, unless the party served the full term, the fair inference is that nothing would have been recovered in that case.

That decision, then, does not go to the extent claimed for it on the part of the plaintiff, — that the terms of such a contract are to be wholly disregarded in a suit for wages earned under it; and that they can not be shown for any purpose. On the contrary, the reasoning of the court is based on the assumption that, for the purpose of showing that the claim for wages is unjust, the contract may be proved.

Now in respect to the question whether wages have been earned, which ought to be paid for, and if so to what extent or amount, and when the payment ought to be made, it appears to us that all the circumstances under which they are claimed to have been earned, including the contract under which the service was performed, although it may be one that can not be enforced by any action directly upon it, may and ought to be considered.

A person agrees to labor for another for a longer period than a year, at a low rate of wages: can he leave just before the expiration of the time, and then demand the ordinary rate? And, in such a case, can not the employer show the contract, in order to regulate the rate ? And if he can do it for this purpose, can he not also do it for the purpose of showing when, by the terms of the contract, he was to pay the wages ?

Where a person, who had been a slave in the West Indies, performed service for his master in England, where he was free, it was held that he could not recover for such service, unless he could show some subsequent express contract. Alfred v. Marquis of Fitzjames, 3 Esp. R., 3. Chit. on Cont., 575.

In Hartwell v. Jewett, 9 N. Hamp., 249, it was held, that though a servant may recover on a quantum, meruit, for part of the service performed under a hiring for a year, yet the action could not be brought until, by the terms of the contract, the wages would be due.

Now, by the terms of this contract, the first payment of the plaintiff’s wages was to be on the 1st day of October, but the suit was commenced in the previous July. We think, therefore, whatever may be the plaintiff’s right to recover after the wages became due, that this suit was prematurely commenced;" ¡and,although the case was not decided below on this point, yet as the facts expressly appear in the finding, and must be fatal to the plaintiff’s recovery on another trial, it is obvious that a new trial can be of no benefit to the plaintiff, in any event; and we therefore, without making any decision upon the point on which the case seems to have turned in the superior court, do not advise a new trial.

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

New trial not to be granted.


author: Waite, C. J.

text:
    The Norwich and Worcester Railroad Company vs. The Town of Killingly.
    The charter of a railroad company provided that where any highway was so located that the railroad could not be judiciously laid out without interfering therewith, the company might, with the consent of the commissioners, cause the highway to be so altered that the railroad might he made on the best site of ground for that purpose ; also that the company should maintain all bridges which they should construct for the purpose of conducting any highway over the road. The company, having made their road through a deep cut in a ridge, across the line of a highway which traversed the ridge, for the purpose of avoiding the expense of constructing a bridge for the highway, changed the location o*f the same, with the consent of the commissioners, to a place where it could cross the railroad at the grade. Held, that the charter did not authorize such change of location, as the object of it was wholly to save the expense of a bridge, and not to malte a more judicious location of the railroad; and that the portion of the old highway between the points.of junction with the new location, was not thereby discontinued.

      This was a writ of error, brought to obtain a reversal of a decree of the superior court, made upon a petition of the town of Killingly against the Norwich and Worcester railroad company.
    The petition alleged that by the fourteenth section of the charter of the railroad company, granted in 1832, it is provided that the company shall maintain in good repair all bridges, with the abutments and embankments, which they may construct for the purpose of conducting a highway over their railroad; that in constructing their railroad through the town of Killingly, it became necessary to construct the same across a certain public highway, located upon and along a high ridge of land, so that in constructing the railroad it was necessary to make a deep cut through the ridge, and also to construct and maintain a bridge across the cut, for the purpose of conducting the highway over the railroad, as by the terms of their charter the company were obliged to do ; that to avoid the expense of building and maintaining the bridge, embankments and abutments, the company, claiming to act under the twelfth section of their charter,’ did, by their engineer, change the location of the highway (so far as their acts in the premises would change the same) for a short distance around the cut, so that the highway crossed the railroad at the grade ; that the highway, so changed, had been used by the public until the time of bringing the suit; and that the county court, in 1854, upon a petition duly brought, changed the road (so far as their action could change the same) back to its original location. The plaintiffs below further alleged that the railroad company had no right, by virtue of their charter, to change the highway from its original location, in the manner stated, and that justice, equity and law required the company to build and maintain the bridge, with its embankments and abutments, which they had neglected and refused to do; and prayed for a decree, that the company should construct and maintain the bridge, with its abutments and embankments.
    The suit was brought by the petitioners, under the provisions of a resolution passed by the general assembly in 1855, authorizing the superior court to hear the parties, and make such decree with regard to the erecting and maintaining of the bridge in question, as the rights of the parties growing out of the charter of the railroad company might require.
    The cause came on for trial before the superior court for Windham county, at the January term, 1856, when the defendants below failed to appear. That court found the allegations in the petition to be true, and made a decree in conformity with the prayer thereof.

      Wait and E. Perkins, for plaintiffs in error.
    1. The railroad company found it necessary, in the construction of their road, to change the location of the highway in question, and to that end, by their engineer, first having procured the consent of the commissioners to the change, constructed the highway now existing across their railroad, all in strict accordance with the provisions of their charter. Charter N. & W. B. B. Co., sec. 12.
    2. The decree of the county court of Windham county, in 1854, was nothing more than the laying out of a new highway, the old one having been by due process of law discontinued.
    3. There is nothing in the charter of this railroad company, or in the general laws of the state, which imposes upon this corporation the duty of constructing bridges over their road, whenever the selectmen of a town, or the county court, may lay out a highway across it.

      A. A. Burnham, for defendants in error.
    The petition alleges, with sufficient certainty, all that is necessary to lay the foundation for a decree in favor of the petitioners. If there was anything of fact, or any provision in the charter of the railroad company, which the respondents wished to avail themselves of, by way of defense, it was for them to have set it forth in their answer.
    The allegations in the petition being sufficient, and having been found true by the court, the decree can not be reversed on a writ of error.
    If the question is open for the consideration of this court, then we say, that the railroad company had no authority to make the alteration in the highway which they attempted. The change had no reference to a judicious location of the railroad, but wholly to the saving of the expense of the bridge. This the charter does not authorize: the approval of the commissioners can make no difference, as they were acting out of their jurisdiction. Having no right to make the alteration, the old highway is not discontinued, and the duty to make the bridge still attaches to the company.

       The sections in the charter, referred to in the petition, are the following:
      “ Section 12. That in all-cases where any road or public highway is so located that said railroad can not be judiciously laid out and made without interfering therewith, in such case or cases, such corporation may, by their engineer, cause such road or roads to be so changed or altered, as that said railroad may be made on the best site of ground for the purpose. Provided, that when the location of any road or highway is altered, the consent of the commissioners be first had to the said alteration,” áse.
      “ Section 14. That said railroad company shall constantly maintain, in good repair, all bridges, with their abutments and embankments, which they may construct for the purpose of conducting their railroad over any canal, turnpike, or other highway, or any private way, or for conducting such private way, turnpike or other highway over said railroad.”

   Waite, C. J.

It is claimed by the plaintiffs in error, that the superior court had no power to make the order and decree of which they complain; that they were authorized by their charter to alter and change highways that interfered with the location of their road, and having altered the highway in question, in the manner prescribed by the legislature, the road along the ridge became discontinued, and the company absolved from the duty of making a bridge over their railroad ; and that, although the county court subsequently laid out a highway where the old one was, their charter does not require them to build bridges on highways laid out after the railroad was completed.

It is undoubtedly true that the obligation imposed upon the company to make and maintain bridges on public highways, applies only to such highways as were in existence when the railroad was built, and not to such as might thereafter be laid out, either by the county court or towns; yet if the old highway upon the ridge has never been legally discontinued, but still continues a public highway, as it was before the railroad was built, then the obligation upon the company to build a bridge across the cut which they have made, still remains.

The power, conferred upon the company by the charter, of changing and altering highways, is not unlimited, giving them the right at their pleasure to alter any and all highways interfering with the location of their railroad, however inconvenient such alterations might be to the public, and expensive to the towns in which the highways are situated; especially as the charter does not require any notice to be given, either to the town or the public, that they may have an opportunity of being heard upon the legality and propriety of the change.

The charter provides that when a public highway is so located that the railroad can not be judiciously laid out without interfering with the highway, the corporation may cause the highway to be altered. The power of making the alteration can, therefore, be exercised only when it becomes necessary for the judicious location of the railroad.

It is obvious that cases may arise where the exercise of this power becomes indispensable; as where a railroad can not be judiciously laid out except upon and along a portion of a highway; then, as both roads can not have the same location, an alteration of the highway becomes necessary.

But the company have no power to make such alteration, merely for the purpose of avoiding the expense of making bridges, embankments and abutments, and thereby throw an additional burden upon the town where the road is situated.

In this case, the town, claiming that the railroad company had not legally discontinued the old highway, nor exonerated themselves from their liability to build the bridge rendered necessary by their acts, applied to the legislature for relief. That body, having doubts whether any judicial court had power to grant the relief, passed a resolution authorizing the town to prefer their petition to the superior court, setting forth the facts upon which they relied, and giving the usual notice to the company; and further authorizing that court to hear the same, and make such order and decree upon the parties, as to the building and maintaining the bridge, with its embankments and abutments, as the rights of the parties growing out of the charter of the company required.

In pursuance of this resolution, the town of Killingly, upon which the expense of building the bridge devolved, unless the company were liable therefor, preferred their petition to the superior court, alleging that the company, for the purpose of avoiding the expense of building and maintaining the bridge, embankments and abutments, changed the location of the highwayand that they had no right or authority by virtue of any provision in their charter, to make such change; and that the law required them to build and maintain the bridge, embankments and abutments.

The cause came on for hearing before the court, and the court found these allegations to be true, and thereupon made the order and decree of which the company now complain. It is not for this court, upon a writ of error, to review that finding. The power to.make it was conferred upon the superior court, and it was for that tribunal to say, upon the evidence, whether the case was one in which the company could legally make the alteration which they attempted.

The facts being as thus found, we see no objection to the decree, and of course no error.

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

Judgment affirmed.


text:
    Skinner vs. Town of Woodstock.
    The statute (Rev, Stat., tit. lv., sec. 38) which provides that the assessors of a town shall be entitled to receive as a compensation for their services, one dollar on each thousand dollars of the amount of the assessment list of such town, does not create sucha joint interest in such compensation, where there are more assessors than one, as to make it necessary that all the assessors should join in an action for its recovery.
    This was an action of assumpsit, brought originally before a justice of the peace, and appealed by the defendants to the superior court, where it was tried on the general issue closed to the jury, at the session of said court in the county of Windham, holden in August, 1856.
    The plaintiff claimed to recover for his services as an assessor of the town of Woodstock for the year 1854. It appeared in evidence that the plaintiff and two other electors of the town were legally chosen assessors of said town for that year, and that all accepted the office and acted as such assessors during the year. The defendants thereupon claim, ed, and asked the court to charge the jury, that as matter of law, by force of the statute providing for the compensation of assessors, the three assessors must join in an action to recover their common compensation ; and that the plaintiff alone could not sustain an action to recover his separate portion thereof. The statute referred to is as follows : “ The assessors shall be entitled to receive as a compensation for their services, one dollar on each thousand dollars of the amount of the assessment-list of such town, and such further sum as the selectmen of the town may deem reasonable.” It was not claimed that the selectmen had agreed to allow any other compensation than the percentage provided by the statute. The court did not charge the jury as requested, but instructed them that it was a question of fact for them to pass upon, whether there was any ground for the claim that the two assessors named should have been joined with the plaintiff in the suit; and that in the absence of proof that the plaintiff was in partnership with the other assessors, or jointly contracted, or acted jointly with them in performing the services for which the action was brought, the law was not, as claimed by the defendants, that by mere force of the statute the action must be joint in favor of all the assessors.
    The jury having returned a verdict for the plaintiff, the defendants moved for a new trial.
    Burnham, in support of the motion.
    1. The interest of the assessors in the compensation proved by the statute, is joint. The statute gives them as a board a percentage on the amount of the assessment list. Stat, ed. 1854, p. 848, sec. 88.
    2. All the action of the assessors was joint. They act as a board in performing all their duties, and can act legally only in this manner. Stat., p. 836. Middletown v. Berlin, 18 Conn., 189,
    3. Such being the fact, neither can sue alone for his share of the compensation. 1 Chit. Pl. 8, 9. Russell v. Stocking, 8 Conn., 237, 242.
    4. The promise proved is variant from that averred. Willoughby v. Raymond, 4 Conn., 131, 133.
    No counsel appeared for the defendant in error.
   Hinman, J.

The plaintiff sued the town for his services as an assessor; and as there were three assessors for the year when the services were rendered, and the compensation for the whole service is, by statute, made to depend for the most part on the amount of the assessment list, (Rev. Stat, tit. lv., sec. 38,) the defendants claimed that the action should have been brought in the names of all the assessors jointly, and that it can not be sustained by the plaintiff alone. The court put it to the jury to find whether there was any partnership, or any joint interest in the claim between the assessors, or whether the plaintiff acted jointly with the other assessors ; and told the jury that, by the mere force of the statute, the action need not be joint in favor of all the assessors ; and the jury found a verdict for the plaintiff.

We have not been satisfied that the defendants can justly complain of this. The course adopted seems to be sanctioned by the rule that where the interest or cause of action is several, each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint. 1 Saund., 154, n. 1. We do not, therefore, advise a new trial.

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

New trial not advised.


author: Storrs, J.

text:
    Bolton vs. Cummings and others.
    A conveyance of real estate, the proper subject of record, may be proved in a suit to which the grantee is a stranger, by a copy of the record of the deed certified by the recording officer; and it is not necessary that the non-production of the original deed should be first accounted for. And such copy is equivalent to proof of the execution and contents of the deed by common law evidence.
    In a suit by a sheriff, on a bond that an imprisoned debtor should remain within the liberties of the prison, the defendants, on the trial, offered in evidence in mitigation of damages, a discharge from all demands given to the debtor by the judgment creditor, after the commencement of the suit, they having pleaded the general issue, with no notice that they should offer such evidence. Held, that as such discharge, by reducing the damages to a merely nominal sum, would have substantially the same effect as if used as a bar to the action, it ought not to be admitted in evidence without notice.
    Where, on such trial, it appeared that the debtor, after a departure from the prison limits, had returned within the same, and remained therein for about two months, at the end of which time he was informed by the plaintiff that he should not longer stand charged with his custody; and the plaintiff offered evidence to prove, that he had not consented to receive him back, and had given him the notice stated immediately on being informed of the fact of his previous departure, but did not introduce the testimony of the jailer, who was within the jurisdiction of the court; and the defendants claimed that the facts raised a presumption that the plaintiff had consented to receive the debtor back, and that the plaintiff’s omission to introduce the testimony of the jailer on the subject, and especially with reference to the jailer’s own conduct in the matter, left the presumption unremoved, and requested the court so to charge the jury; and the court instructed them that the facts did raise such presumption, but that it might be rebutted by any proper evidence, and submitted to them the question of fact, on all the evidence, whether the plaintiff had consented to receive the debtor back, — it was held, that such course was correct, and that the plaintiff was not bound to introduce the testimony of the jailer, who might have been called on by the defendants if they had desired.
    Where, on such trial, it appeared that the debtor, while at large within the prison limits, had been employed by the jailer to render sundry services in connection with the care of the jail, being sometimes entrusted with the keys 9 and sometimes taking charge of the prisoners when conducted to or from the jail, but which services were rendered under the supervision of the jailer, and all within the prison liberties, — it was held, that such employment of the debtor by the jailer did not constitute a voluntary escape.
    Where a limit of the jail liberties, as established by the county commissioners, was the west line of a certain highway, and after the limit was so established, a house was erected on the west side of the highway, and the fence carried around the rear of the house, leaving the space around it open to the highway* — it was held, that such open space and the house therein were not thereby brought within the prison liberties.
    Also, that any change of the west line of the highway, would not alter the line of the prison liberties, where the commissioners, in establishing the liberties, had made no provision for subsequent alterations of the line of the highway.
    This was an action of debt, on a bond given to the plaintiff as sheriff of the county of Tolland, by the defendants, in the sum of twelve hundred dollars, the condition of which was that John P. Cummings, one of the defendants, then imprisoned in the county jail of said county, on an execution in favor of one Earl Cummings, should remain a faithful prisoner within the limits of the liberties of said jail until lawfully discharged.
    The declaration, after setting out the bond and condition, alleged that the plaintiff, on the receipt of the bond, permitted the said John P. Cummings to go at large within the liberties of said jail, and that the said Cummings, without the consent or knowledge of the plaintiff, and without being lawfully discharged, at sundry times mentioned in the declaration, departed from and went without and beyond the limits of said liberties.
    The defendants pleaded the general issue, with notice that they should offer evidence to prove that said John P. Cummings had in good faith endeavored to fulfill and perform the condition of the bond, and had used due diligence to ascertain the limits of said liberties, but had been unable to do so ; and had often requested the plaintiff, as sheriff of said county, and as keeper of said jail, to make them known to him, but that he had always neglected and refused to do so ; and that if the said John P. Cummings had gone beyond the limits of said liberties, he had done so unintentionally, and in consequence of his ignorance of the limits : also that the plaintiff had voluntarily allowed the said Cummings to escape from said jail and depart from said liberties: also that the said Cummings, after said alleged departure from said liberties, had voluntarily returned to said jail, and to the custody of the plaintiff, and that the plaintiff, knowing all the facts, had received him back, and held him in custody for a long time thereafter.
    The ease was tried at the term of the superior court holden in the county of Tolland, in April, 1856.
    On the trial, the plaintiff offered in evidence the original record of the limits of the liberties of the prison in said county, as established by the county court in the year 1820, and extended in the years 1825 and 1830; and claimed that while the said John P. Cummings was legally confined within said limits, in the manner alleged in the declaration, and was at large within the same under said bond, he had on three several occasions departed therefrom, over that portion of the southern and western line thereof that was described in said record as follows, viz.: “ Then following the road leading from said mills, to the court-house by the burying-ground and Daniel Griggs’s, to the south line of a lot of land lately purchased by Jeduthan Paulk of Daniel Benton, then westerly in the south line of said lot to the southwest corner, thence northerly,” &c.
    For the purpose of showing what land was referred to as “lately purchased by Jeduthan Paulk of Daniel Benton,” the plaintiff offered in evidence a copy of a deed from Daniel Benton to said Paulk, dated January 22d, 1825, certified by the town-clerk of the town of Tolland to be a true copy from the records of deeds of land in said town, accompanied with evidence that the land described in said deed was the only land ever sold by said Benton to said Paulk, and other evidence tending to identify the same. The defendants objected to the admission of this copy in evidence, and insisted that the plaintiff' was bound to produce the original deed, or account for its rion-produetion. But the court overruled the objection, and admitted the copy to be read for the purpose for which it was offered.
    The defendants offered to prove, by sundry witnesses, that while the said John P. Cummings was so confined within said limits, and both before and after the alleged departures therefrom, he made inquiries of the clerk of the court in said Tolland county, and of sundry other persons, for the record of said jail limits, and that he was informed by said clerk and the others, in every instance, that there were no such records. To the admission of this evidence the plaintiff objected, and the court refused to admit it, except so far as it might relate to inquiries made of the plaintiff, as sheriff of the county, or of the jailer for the time being.
    The defendants offered in evidence a receipt, signed by Earl Cummings, the creditor on whose execution the said John P. Cummings was imprisoned, purporting to be in full of all demands in his favor against John P. Cummings, and dated subsequently to the commencement of the pres ent suit, and claimed that said receipt should be received, to reduce the damages that might be found for the plaintiff in this suit. To the admission of this receipt in evidence the plaintiff objected, because no notice was given in writing at the time of filing the plea, that the defendants would offer any such defense. The court sustained the objection, and the receipt was not read in evidence.
    The plaintiff introduced evidence to prove that said John P. Cummings had, on three occasions, between the 1st day of October and the 9th day of November, 1855, departed from the liberties of the prison without the consent or knowledge of the plaintiff, and that, as soon as the plaintiff had knowledge of said departures, he refused to stand charged with his custody, and gave him immediate notice thereof. The defendants offered evidence to prove that if said Cummings had departed from the limits of the liberties of said prison, as claimed by the plaintiff, yet he immediately thereafter returned to said limits, and before any action was brought against the plaintiff for said alleged escape, and remained within said limits until the 4th day of January, 1856, when he was discharged therefrom by the plaintiff; and thereupon requested the court to charge the jury that, if the fact was so, the plaintiff could not recover in this action. But the court did not so charge the jury, but instructed them that if Cummings had departed from the limits of the liberties of the prison, as claimed by the plaintiff, and had returned before any suit was commenced against the sheriff, yet such a departure was a breach of the bond of the defendants, and the sheriff might sustain this* suit thereon if he had not consented to receive said Cummings as his prisoner after his said return, but had given him notice immediately upon his knowing of his departure, as he claimed to have done, that he would stand no longer charged with his custody.
    The defendants claimed that the fact that Cummings had returned to, and remained within, said limits, for nearly two months after said pretended departure, raised a strong presumption that the sheriff had consented to receive him again as a prisoner, and that although the sheriff had testified that he had not consented so to receive him, and had no knowledge of said departure until the day he notified him that he should no longer stand charged with his custody, yet the jury should find the sheriff had so received said Cummings because the plaintiff had not introduced Joshua Griggs, the jailer, to testify that he as such jailer had not consented to receive him back into custody ; and the defendants requested the court so to charge the jury. But the court instructed them that the return of Cummings to the limits, and his continuance within the same, as claimed by the defendants, was presumptive evidence that the sheriff had consented to receive him, and would justify them to find such consent, unless the effect of this presumption was rebutted by legal evidence. But that it was competent for the plaintiff to rebut this presumption by any legal evidence, and if the jury should be satisfied, from all the evidence in the case, that neither the sheriff nor the jailer knew of these departures until the day the sheriff notified Cummings he should no longer stand charged with his custody, and that such notice was given immediately upon his having knowledge of the facts, the plaintiff was entitled to recover in this suit, although he had not introduced the testimony of Mr. Griggs.
    The defendants offered evidence to prove that after the date of said bond, and while said Cummings was at large upon the jail limits, he boarded for several months in the family of the jailer, Mr. Griggs, and was often during that time employed by him to labor about his house, barn and the jail, all of which were within the liberties of the prison, and while so employed was at times entrusted by said Griggs with the keys of the jail, to go in and out of the prison, to wait upon the prisoners, and to do such things as were necessary to be done in the prison; that he sometimes went into the prison with persons who were being committed to prison, and sometimes was sent for prisoners who were to be discharged from prison; and that these acts were done by him both in the presence and in the absence of said jailer; and the defendants thereupon requested the court to charge the jury that, if they should find the facts to be in this respect as claimed by them, they constituted a voluntary escape, and that the sheriff could not after such an escape sustain any action upon the bond in question.
    The court instructed the jury that if the sheriff should appoint an imprisoned debtor to be the jailer, it would be a voluntary escape ; also if the jailer should abandon the prison and leave it in the custody of a prisoner, such act would be a voluntary escape; and in either event no suit could be sustained by the sheriff upon any bond he might take, conditioned that the prisoner therein named should remain a faithful prisoner; but that the permitting a prisoner to do those acts about the prison that are necessary for the comfort and support of the prisoners, under the direction and eye of the jailer, without any abandonment of the prison on his part, would not amount to a voluntary escape. That if, therefore, the jury should find that the sheriff had appointed Cummings jailer during the time named, or if they should find that Mr. Griggs, the jailer, had during the time named abandoned his office, or gone away and left the prison in charge of Cummings, in either case there would be a voluntary escape and this suit could not be sustained; but if the jury should find that all the acts done by Cummings in relation to the prison were done by him under the direction and supervision of the jailer, and were within the limits of said prison, then there would have been no voluntary escape and the suit might be sustained.
    The defendants claimed that it was the duty of the sheriff, at the time he admitted said Cummings to the liberties of the prison, to inform him of the boundaries of said limits^ which he admitted he had not done; but the defendants did not claim that said Cummings made any direct request of the sheriff, to describe to him the limits. They, however, offered evidence to prove that, soon after his admission to said limits, he inquired of the jailer as to said boundaries, and was informed by him generally where they were, but the jailer was not able to describe them with exactness. The defendants thereupon requested the court to charge the jury that the omission of the plaintiff to describe said limits to said Cummings, was such a dereliction of duty that he could not recover in the present suit. But the court did not so instruct the jury, but informed them that it was the duty of the sheriff to describe to an imprisoned debtor, admitted to the liberties of the prison, the true limits of said liberties, as near as he was able, on request, andthatif said debtor should not depart from said liberties as so described by said sheriff’, although he might go out of the real limits of said prison, the sheriff could not sustain a suit upon his bond; but that the sheriff was not bound to describe said liberties, unless he was requested by the prisoner so to do ; that if Cummings made no such request of the plaintiff, or if the description given him by the jailer did not mislead him, and was not the cause of his departure from said liberties, the sheriff might recover upon his bond, if he proved that the prisoner had actually departed from the liberties of the prison.
    One of the departures from the liberties of the prison claimed by the plaintiff, consisted in said Cummings going into the dwelling-house of Daniel Benton, which the defendants claimed stood within said liberties. It was agreed that said house had been built within the last ten years, and was situated on the west side of the highway, at a point where the line of the prison limits is described in the” record before referred to, as “ following the road from said mills to the court house,” the east side of said road being the one within said limits ; and that the front of the house extended about one foot east of the fence in the west line of the highway, as the fence stood when the prison limits were established ; that the fence north of the house had been removed from the line in which it formerly stood, a few feet to the east, and came near to the north-east corner of the house, then extended westwardly to a point in the rear of the house, thence southward in a line nearly parallel with the highway, leaving a space between the fence and the rear of the house, and thence eastwardly to where the fence stood when the. boundaries of the jail limits were established; that the house was not inclosed by any fence, and that the only entrance to it from the road was by a gangway at the south end leading to the rear thereof. And the defendants claimed that inasmuch as the house was no otherwise inclosed than as above stated, it stood within the highway, and was practically within the liberties of the prison, and requested the court so to charge the jury. But .the court instructed them that the western boundary of said liberties at the point in question, was the line of the fence on the west side of the highway as it stood when said liberties were established ; and that the removal of the fence to the east or to the west of the place where it then stood, would not contract or enlarge said limits, and that if the jury should find that said Cummings went west of said line, it was a departure from said limits, although he might not have gone west of the fence as it then stood; and that it was a breach of the bond if he had actually departed from the prison liberties, even if he had done so inadvertently.
    The jury having returned a verdict for the plaintiff, the defendants moved for a new trial, for errors in the rulings and charge of the court.

      H. K. W. Welch and Calhoun, in support of the motion.
    I. The copy of the deed from Benton to Paulk should not have been admitted without proof of the original being lost. 1 Greenl. Ev., sec. 558 and note. Kelsey v. Hammer, 18 Conn., 311.
    2. The evidence should have been admitted, of the debt- or’s search for the records of the jail limits, and the declarations of the clerk of the court respecting them.
    3. There was no breach of the bond in this case, because no intent to commit a breach. Baxter v. Taber, 4 Mass., 369. Commonwealth v. Alden, 14 Mass., 389. Dole v. Moulton, 2 John. Cas., 205. “ Statute creating jail liberties was passed for humane purposes.” Dash v. Vankleeck, 7 John., 511. Seymour v. Harvey, 8 Conn., 69. The bond should therefore be construed so as to secure the end contemplated by the statute, and not so as to entrap the prisoner.
    4. The discharge should have been admitted; being offered only in mitigation of damages, it was not necessary to plead it. Joy v. Hull, 4 Vermont, 455. No notice need be given, unless the matter of defense relied upon must have been pleaded specially at common law. But this could not be the subject of a special plea, because it does not profess to be an answer to the whole of any one count in the declaration. Com. Dig. Plead., E. 4. Steph. on Plead., 215. Herries v. Jamieson, 5 Term R., 557. Atkinson v. Stephens, 14 Eng. L. & Eq. R., 407. Guardians of the Poor, &c. v. British Guarantee Association, 14 Eng. L. & Eq. R., 504. The receipt was admissible even in bar of the action under the general issue. 1 Chit. Pl., 482. Minton v. Woodworth, 11 John., 474. Brown v. Littlefield, 7 Wend., 454.
    5. The debtor’s voluntary return before suit against the sheriff, healed the breach. Anonymous — 1 Strange, 423. Dole v. Moulton, 2 John. Cas., 205.
    6. The court erred in its charge as to the presumption of the prisoner’s having been received back in the absence of the jailer’s testimony. The law presumes the sheriff to have received him. Drake v. Chester, 2 Conn., 476. This presumption attaches to the jailer, as he is vested with all the power of the sheriff in these matters. Huntington v. Williams, 3 Conn., 430. The jailer should therefore have been called by the plaintiff, and as he failed to do so or account for his absence, the presumption of a reception still exists, and can not be rebutted by other evidence. Kelsey v. Hanmer, supra.
    7. The employment of the debtor by the jailer, in the manner stated in the motion, constitutes a voluntary escape. Wilkinson v. Salter & Perry, Hard. Cas., 310. Colby v. Sampson, 5 Mass., 310. Skinner v. White, 9 N. Hamp., 205. Steere v. Field, 2 Mason, 526. 1 Sw. Dig., 545. Wilkes v. Slaughter, 3 Hawk., 211. The fact of the debtor being on the limits, can make no difference, for the limits are but an extension of the walls of the prison ; and the law of escapes applies to the limits in the same manner as to the walls of the prison itself. Drake v. Chester, 2 Conn., 476. Seymour v. Harvey, 8 Conn., 69, Peters & Gedney v. Henry, 6 Johns., 121. Huntington v. Williams, 3 Conn., 429, 430. Dole v. Moulton, 2 John. Ca., 205, and Steere v. Field, supra. A voluntary escape in the jailer is a voluntary escape in the sheriff. Rev. Stat., tit. 47, sec. 17. Huntington v. Williams, supra. Commonwealth v. Drew, 4 Mass., 395,

      8. As to duty of the sheriff to inform the debtor of the jail limits. Ely & Parsons v. Parsons, 2 Conn., 385.
    9. As to the alleged departure by going into Benton’s house. The house was within the practical limits of the highway, which it is agreed was within the liberties. Ely & Parsons v. Parsons, supra. Unimportant variations in the road fence should not be allowed to entrap those who conform to the very letter of the record.

      Brockway and Hyde, against the motion.
    1. The copy of the deed from Benton to Paulk was admissible. Kelsey v. Hanmer, 18 Conn., 311. 1 Greenl. Ev., sec. 483, 484. Scanlan v. Wright, 13 Pick., 523. Clark v. Mix, 15 Conn., 174.
    2. Declarations of clerks and others that there was no record of jail limits were not admissible. 1st. It is not provided by law that the limits should be matter of record. 2d. If it were, and the records were lost or destroyed, they might be proved by parol. 3d.-Misconduct of clerk or other persons can not charge sheriff. Farley v. Randall, 22 Pick., 146.
    3. The debtor’s intention to commit no breach, does not affect the case. It is not a question of intention. 1 Sw. Dig., 544. Burroughs v. Lowder, 8 Mass., 373. Cargill v. Taylor, 10 Mass., 206.
    4. Receipt of Earl Cummings properly rejected, for want of notice. Rev. Stat., tit. i., sec. 90; and see rules, in 18 Conn., 576.
    5. A voluntary return of a prisoner within the limits, before suit brought against the sheriff, does not purge the ' escape. Seymour v. Harvey, 8 Conn., 64. Drake v. Chester, 2 Conn., 473.
    6. The charge in relation to the question whether the sheriff had received the prisoner back, was correct.
    7. The employment of the debtor by the jailer, in the manner stated, does not constitute a voluntary escape. Though it might be an escape to entrust a prisoner who was not entitled to the liberties, with the keys of the outer doors, so as to remove all obstructions to his departure, it by no means follows that it would be such an escape in the case of a prisoner entitled to the liberties. The cases cited in 2 Mason, 526, and 5 Mass., 310, are both where the prisoners were not entitled to the liberties; and that of Huntington v. Williams, 3 Conn., 427, rests on the ground of agency.
    8. Neither sheriff nor jailer is bound to inform a prisoner of the precise limits. Farley v. Randall, 22 Pick., 146. The sheriff, in admitting a prisoner to the liberties, is merely performing a duty devolved upon him by law. He has no power to establish or define the limits. Those acts are done by other officers of the law, whose doings are as accessible to the prisoner as to the sheriff.
    9. The removal of the fence could not alter the limits as once defined. Ely v. Parsons, 2 Conn., 382.
   Storrs, J.

1. If the deed, offered in evidence by the plaintiff, had been given to the defendant, or was presumably in his possession, secondary evidence of its contents would not be admissible, unless the latter had been notified to produce it and refused to do so ; or, if it had been given to the plaintiff, such evidence would not be allowed without proof of its loss. Commonwealth v. Emery, 2 Gray, 80. But neither of these was the case here. The deed was given to a stranger to the suit, and was presumably in his possession, as it is the universal practice here for every grantee of real estate to retain his title-deeds when he conveys the property, and not, as in England, to pass them to his grantee. In view of this practice, which would oftentimes render it extremely inconvenient to produce remote original title-deeds of lands, and of the provisions of our registry system, which requires those deeds to be recorded, and upon official copies of the records of which, reliance may safely be placed as to the contents of those deeds, our courts have departed from the common law rule in regard to the admission of secondary evidence of their contents, and held that where a conveyance of real estate, which is required to be recorded, is to a person not a party to the suit, it is competent, and sufficient in the first instance, to prove the contents of it by a copy certified by the recording officer, without laying a foundation for such proof by first accounting for the non-production of the original deed, and that such copy is equivalent to proof of the execution and contents of the deed by common law evidence; and such is now the established rule. Kelsey v. Hanmer, 18 Conn., 311. Talcott v. Goodwin, 3 Day, 267. Clark v. Mix, 15 Conn., 174. The superior court therefore properly admitted the copy of the deed offered by the plaintiff.

2. The discharge offered by the defendants was properly excluded. It clearly could not, under our statute allowing matters in avoidance to be given in evidence under the general issue, (Rev. Stat., tit, i., sec. 90,) have been used as a complete defense, without previous notice to the plaintiff. Nor is it very obvious on what ground a discharge, which extinguishes the right of action, can in any case be allowed in evidence only in mitigation of damages. But, without determining that point, if it may be used for that purpose, its effect would be to reduce the damages to a merely nominal sum, and it would therefore have substantially the same effect as if it were used as a bar to the action. Justice to the plaintiff therefore requires that he should have notice of its introduction, as well when it is to be used for the first of these purposes as for the other; and he might be easily and fatally entrapped, if it could be introduced in mitigation of damages without notice, because a defendant, for the sake of the advantage of springing upon the plaintiff a discharge which he would have no reason to expect, and would not therefore be prepared to meet, might be willing to submit to a judgment for nominal damages only. It would therefore be sanctioning a mere evasion of the statute, to permit a discharge to be thus used without notice.

3. There is no foundation for the claim of the defendants, that it was incumbent on the plaintiff to introduce the jailer as a witness, to prove that the plaintiff refused to receive Cummings back into custody after his escape. The defendants, by the ruling of the court, had the benefit of the presumption that the plaintiff so received him on his return to the jail limits ; and if the jailer had authority to receive him back in behalf of the plaintiff, it was competent for the latter to remove that presumption by any evidence which was in its character proper to disprove it, and the proof adduced by him was plainly proper for that purpose. There is no rule requiring such proof to come from one person rather than another who is a competent witness. The jailer, moreover, was as competent a witness for the defendants as for the plaintiff, on the question whether the latter received Cummings back into his custody.

4. We are of the opinion that the services which the defendant claimed that the jailer employed Cummings to perform in and about the jail, did not constitute an escape in him, as the defendants insist. If they did, it was clearly a voluntary escape on the part of the plaintiff, and would therefore be a bar to this suit; as there could afterward be no return or recaption of Cummings which would reinstate him in the custody of the plaintiff, and consequently there could be no subsequent escape by him. Those services were performed by him within the limits of the jail liberties, as designated by the county commissioners, while he was at large within those liberties, under the bond on which the present suit is brought; and the jury have found that they were performed under the direction and supervision of the jailer, and that the latter did not abandon his office.

The defendants derive no aid from the authorities adduced by them in support of their claim on this point. They are all cases where the question relates to the effect upon a sheriff, of his allowing a prisoner to enjoy the liberties of the jail, without requiring the bond provided by the statute; or of permitting him, while in close custody, and without having given such a bond, to do certain acts incompatible with that custody of him which is essential in order to constitute an imprisonment. The first of these classes of cases is obviously inapplicable to the present case, in which the prisoner was at large within the liberties of the jail, on a bond given pursuant to the statute, and the acts relied on by the defendants were done within those limits. Those liberties are considered only as an extension of the walls of the jail, and a departure by a prisoner from those walls is therefore plainly not an escape, so long as he keeps within the liberties. Seymour v. Hawley, 8 Conn., 70. 2 John. Cas., 207. 2 T. R., 131. This disposes of the claim of the defendants so far as it rests upon the acts of Cummings which were done without the walls of the jail. In regard to the other class of cases cited, whatever might be thought of their applicability to a case where the prisoner is at large within the liberties, on a bond executed according to the statute, they furnish no ground for the claim that the acts which, in the present case, were claimed to have been done by the prisoner, with the allowance.of the sheriff, amounted to an escape of such prisoner. He was not in the custody of the sheriff within the walls of the jail, and there was plainly nothing in the employment of him by the sheriff under his direction and supervision, to perform the acts which he did, which was incompatible with the custody in which he was held by the sheriff. Nor did such employment imply any permission to him to leave the jail liberties, or furnish him any facility for doing so which he did not previously have, (even if these would have any effect on the sheriff so long as he did not avail himself of them,) or, in short, evince any relinquishment by the sheriff of his previous authority over him as his prisoner. The main object of the statute which provides jail liberties for imprisoned debtors, was to enable them to obtain employment by which they might earn a livelihood for themselves and their families; and it would practically go far toward frustrating that humane purpose, especially in some of the places where jails are located, if they were not allowed to engage in such services as Cummings was employed to perform. We can perceive no imaginable reason why a jailer or sheriff might not, without a violation of duty, employ him as well as any other person, to perform those services.

5. It is unnecessary to consider what would have been the effect, if the county commissioners, when they designated the liberties of the jail, and determined that opposite the residence of Benton they should embrace the highway, had provided that the liberties should be contracted or enlarged according as the highway might afterward be narrowed or widened ; because, on the facts conceded in this case, there was no such provision. Such is not the true construction of the designation of the liberties by the commissioners. They fixed the lines of the highway as they then existed, as the limits of the liberties. By no rule of construction would such a designation import that they should change with subsequent alterations of the lines of the highway. Whatever alteration therefore might subsequently be made, the limits of the jail liberties remained as originally designated. But it did not appear that there had since been any alteration of the limits of the highway, either practically or otherwise. Nor did it appear that there was any change in the location of the fence for any other purpose than to accommodate the occupants of Benton’s house, or that it was designed as an alteration of the highway. The ease of Ely v. Parsons, 2 Conn., 382, is not applicable to the present, as the point there involved related to the construction of the original designation of the liberties, which were not claimed to have been subsequently altered. The charge on this point was therefore correct.

On the other points made by the defendants on the argument, the rulings complained of were too plainly correct to require argument in their support.

A new trial should not be advised.

In this opinion Hinman, J., concurred. Waite, C. J., was not present.

New trial not advised.


text:
    Judson vs. The City of Bridgeport.
    It being .provided by the charter of the city of Bridgeport, that the damages caused by the laying out of streets by the common council, shall be assessed by three disinterested freeholders of the city, to be appointed by the mayor, whose certificate of such appointment shall be recorded in the city records; it is necessary to the validity of such an assessment that it should appear, by the record of spch appointment, that the committee making the assessment were disinterested freeholders of the city.
    And the invalidity of such assessment of damages renders invalid an assessment of benefits, authorized by the charter for the payment of such damages.
    This was an action of general assumpsit, brought to recover of the city of Bridgeport a sum of money received by the city from a sale of the plaintiff’s property, under a warrant of the mayor, for the collection of an assessment of benefits in widening a street, tried on an issue closed to the court at the term of the superior court for the county of Fairfield, holden in March, 1856.
    The defendants pleaded the general issue, with notice that they should offer proof of the proceedings of the common council of the city in widening said street, and assessing damages and benefits therefor, of the warrant of the mayor, and of the proceedings under the same for the collection of the sum assessed against the plaintiff, all which were claimed to be according to law.
    Sundry questions were made on the trial with regard to the regularity of these proceedings, none of which are important in the view of the case taken by this court, except that with regard to the committee appointed to assess the damages caused by the widening of the street.
    The 38th section of the charter of the city provides that whenever the court of common council shall lay out or alter any street, (which by a previous section it is empowered to do, and by a later section, to assess the benefits, for the purpose of paying the damages caused thereby,) and can not agree with the parties injured by such laying out or alteration, as to the damages sustained by them, “ such damages shall be estimated by three judicious disinterested freeholders of said city, who shall be appointed and sworn by the mayor, or in his absence by the senior alderman of said city, and a certificate thereof shall be made and recorded in the records of said city; and it shall be the duty of said freeholders to make a return of their doings to the clerk of said city, who shall record the same.”
    The record of the appointment of said committee was as follows:
    “Fairfield Co., ss. City of Bridgeport, April 25,1848.
    “ To Russell Tomlinson, Ira Sherman, and Samuel B. Ferguson : — You are hereby appointed appraisers to estimate the damages to the several proprietors owning land in said city, in consequence of the altering, widening and laying out Middle street, laid out by the committee of the court of com. mon council on the 15th day of April, 1848, and accepted by said court, April 18th, 1848, with the survey and the particular description of the same, and perform all the duties required of you by the statute in such cases made and provided. Given under my hand in said city, on the 25th day of April, 1848. Sherwood Sterling, Mayor.
    “ Personally appeared, the above-named appraisers, and were sworn by me on the 25th day of April, 1848.
    Sherwood Sterling, Mayor.”
    The return of the committee was as follows :
    “ The committee appointed to estimate the damages to property owned by different individuals, caused by the widening of Middle street, on the 15th day of April, 1848, do report as follows, viz.: The committee have attended to the duties of their appointment, and the following are the only persons damaged by the widening of said street, viz.:
    “Charles T. Nichols, three hundred dollars, $>300.00
    “Alexander Hamilton, five dollars, 5.00
    “Bridgeport, June 8th, 1848. $>305.00

    The plaintiff claimed that the assessment of damages was illegal, because it did not appear on the face of the proceedings that'the committee were disinterested freeholders of the city. They were such in fact, and the damages assessed had been paid by the city.
    Previously to the appointment of the committee in question, a committee had reported to the common council that they had not agreed with the proprietors whose lands were taken in widening the street, as to the damages sustained by them. Neither of the persons in whose favor damages were assessed, had ever claimed that the proceedings of the common council in the widening of the street were in any respect illegal.
    The court made a special finding of the facts, and reserved the case for the advice of this court.

      Hawley and Beardsley, for the plaintiff,
    contended that the defendants, to justify themselves, must show that they have complied with every requirement of the city charter; that the charter requires that the committee,, to assess damages in a case like the present, must be disinterested freeholders of the city; that this fact does not appear from the record, and can not be supplied by parol evidence ; and that there being no legal assessment of damages, there can be no assessment of benefits to pay such damages ; citing Nichols v. Bridgeport, 23 Conn., 189, and cases there referred to. Mitchell v. Kirtland, 7 Conn., 229. Booth v. Booth, 7 Conn., 350.

      Dutton and Loomis, for the defendants,
    contended, 1. That the damages were properly assessed, the appraisers being in fact indifferent freeholders of the city, and that parol evidence was admissible to prove that fact. 2. That the damages in the circumstances might be regarded as agreed upon between the city and the persons injured. 3. That the damages were assessed “ by a regular finding of a competent board.” Nichols v. Bridgeport, 23 Conn., 189, and remarks of Hinman, J., p. 211. Charter of city of Bridgeport, sec. 38. 4. That the assessment of benefits was in accordance with the charter, and can not be attacked collaterally. Sec. 41.
   Hinman, J.

Several questions have been made in this case, but We shall notice only one of them, as that is of a character which is decisive of it, and must, we think, under the facts found by the court, preclude the defendants from successfully making any defense to the plaintiff’s action.

The plaintiff’s property has been levied upon and sold, under a warrant issued by the mayor of Bridgeport, for the purpose of collecting an assessment of benefits received by the plaintiff, in the laying out and widening of one of the streets of the city, and in order to raise the money to pay for the damages assessed to certain individuals, by reason of said alteration and improvement of the street.

Now, in the case of Nichols v. The City of Bridgeport, 23 Conn., 189, we held that the record of the proceedings under which property is attempted to be taken for such a purpose, must show the legal right of the city authorities thus to take it; and that before damages can be required to be paid by the persons benefited by the improvement, they must, under the city charter, be assessed by “ three judicious and disinterested freeholders of the city,” unless the court of common council agree with the parties injured as to such damages. In this case the court of common council did not agree with the persons injured, and it does not appear, by the appointment of the appraisers to estimate the damages, that the persons appointed were either freeholders or inhabitants of the city. In the case of Nichols v. Bridgeport, a similar difficulty was obviated by the fact that large benefits were regularly assessed to the party claiming to be injured, on account of the same improvement by which he claimed to be injured; the court holding, under the circumstances of that case, that the assessment of benefits meant only the benefit which he received, over and above any damage to him by reason of the same improvement. On which ground it was held to be immaterial whether any damages, as such, were in fact assessed in that case or not. Here, however, the assessment of benefits to the plaintiff was made for the purpose of raising the money to pay the damages assessed to other persons. There can be no pretense, therefore, that these damages have, in effect, been assessed by the assessment of benefits received by the plaintiff, because the parties for whom the money was raised, were not parties, in any sense, to the proceedings under which the benefits were assessed. Nor is there any room to presume that the damages were legally assessed, even if such a presumption could arise in the absence of any facts to show how they were assessed, because it appears here, upon the face of the proceedings, that they were not assessed by indifferent freeholders as required by the charter. The right to assess benefits received by the plaintiff, of course depends upon whether there are damages to be paid for the improvement, as well as upon whether the plaintiff was benefited thereby ; and it can not be known that there are any such damages until they are agreed to, or assessed in the mode prescribed by the charter. As this has not been done in this instance, the assessment against the plaintiff was premature and of course illegal, and the money collected of him under it must be repaid to him.

We therefore advise the superior court to render judgment for the plaintiff.

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

Judgment for plaintiff advised.