text:
    Strong against Crosby and others.

      New-London,

    July, 1851.
    A parol lease of land for three years, being void by the statute of frauds, the tenancy, if continued beyond a year, becomes a tenancy from year to year.
    Where the tenants under such lease were three partners, who, during the second year, dissolved their partnership, and two of them claimed to have put an end to their tenancy, at that time, and consequently to their liability for rent; it was held, that this might be done, by any words or acts of theirs fairly importing a surrender of the premises; and whether they had so done, was altogether a question of fact for the jury, upon the evidence before them, to determine.
    Where it appeared from the evidence in such case, that on the dissolution of the partnership, two of the lessees, after giving notice to the lessor of their surrender, added, that they had given the leased premises to the other lessee, as his share of the company effects, and that he must pay the rent himself; to which the lessor immediately objected; it was held that such giving of the leased premises to the other lessee, as his share, instead of proving a termination of the lease by them, was rather an act of affirmance or ratification, and was very far from a renunciation of the lease, or of possession upon the terms of it.
    This was an action of assumpsit, to recover the rent of a factory and the buildings connected therewith; tried on the general issue, at Norwich, August adjourned term, 1850.
    On the trial, the plaintiff claimed, and introduced evidence to prove, that the defendants leased of him a factory situated in Norwich, together with two dwelling-houses, for one year, from the first of April, 1846, to the first of April, 1847; the factory at 1,500 dollars a year, one house at 80 dollars, and one at 30 dollars; all which was proved and admitted, except as to the last mentioned house, which was submitted to the jury.
    The plaintiff then claimed, and introduced evidence to prove, that in February, 1847, the defendants agreed with the plaintiff for a new lease of the factory at 1,650 dollars a year, for three years from the 1st of April, 1847; and that the defendants continued to possess the premises until the 1st of November, 1848, when, as they claimed, they surrendered them to the plaintiff, and he discharged them from any further liability.
    The defendants denied, that they hired the premises, except for the year ending 1st of April, 1847, though they continued to possess and enjoy the premises as before, until the 1st of June, 1847, without notice to the plaintiff of any change.
    The defendants claimed and introduced evidence to shew that the new lease was made by Hale, one of the defendants, and though in the company name, without and against the consent of the other defendants; and that Hale was in fact forbidden to do it; of all which the plaintiff had notice before the contract was closed; and further, that on the 1st day of June, 1847, the defendants dissolved partnership, and Hale took, as his share, the interest in the lease and premises, when the other defendants (as they claimed) no longer had possession and enjoyment thereof; that the lease being by parol, was void, and the tenancy only from year to year; and therefore, that any continuance of occupation and possession by Hale, or any one holding over by him, since the partnership was dissolved in June, 1847, and the withdrawal of the other defendants at that time, (as they claimed,) was not their possession, and could not subject them to pay rent, but Hale alone was liable. The defendants insisted, that in September, 1847, they informed the plaintiff of their dissolution in June previous, and that they had left the premises to Hale, as his part, and had had since then nothing to do with them, but Hale was running the factory for himself.
    The plaintiff introduced evidence, and claimed, that the second lease was made by and for the company of Crosby, Hale & Conkey, and in the company name; that it was made with their knowledge and consent; and that it was ratified and actually enjoyed, by them personally, as a company, until the period of their dissolution; and the plaintiff insisted, that he had no knowledge or notice whatever before September, 1847, of any dissatisfaction of Crosby and Conkey about the lease; that at that time, Crosby and Conkey did inform him, they had been dissatisfied, and that the company was dissolved in June previous, and they had given the premises to Hale, as his share, and they were no longer connected with them, and Hale was running the factory, and he would pay the rent; to which the plaintiff immediately replied, he had leased the factory to Crosby, Hale & Conkey, and should not take Hale alone for the future rent. And the plaintiff claimed, that he never knew of any other change in the business, controul or possession of the factory until November,
      1848, when Hale stopped the factory, and delivered the key to the plaintiff.
    The plaintiff claimed to the court, that as he had leased the factory to Crosby, Hale Conkey, two of the defendants could not terminate their relation to the plaintiff, as landlord in the premises, unless all of that former company should restore possession.
    The defendants did not claim, that Hale had done it, or abandoned the lease, but conceded he had not, but they claimed, that Crosby and Conkey, could, at the end of any year, (though Hale would not,) abandon the premises to the plaintiff, and cease to be tenants.
    The court, pro forma, charged the jury in accordance with the defendants’ claim, but left the fact to the jury, whether Crosby and Conkey had in fact for themselves abandoned and surrendered possession to and for the plaintiff, or only to and for Hale, for his controul and enjoyment under the lease; which last the plaintiff claimed was the fact; contending that if only the latter, they had not ceased to be liable as tenants; if the former, they had.
    The court said, the dissolution and notice of it, was no surrender; nor was the personal absence of Crosby and Conkey from the factory, nor Hale's taking the lease as his portion, though these were circumstances to be considered upon the main fact. Fairness required the plaintiff should have notice from Crosby and Conkey, that they did surrender their possession and controul to the plaintiff. This they could do, and be freed. Did they do it? The law prescribes no form. A delivery of the key would answer; and so any words and acts, which, fairly interpreted, are a surrender to the plaintiff of their possession.
    The plaintiff admitted, and the jury were instructed, that the lease for three years being by parol, was void, and therefore the tenancy was from year to year; and both parties agreed, that the holding over by a tenant, was a renewal of the former lease for another year. The plaintiff admitted, and the court held, and charged the jury, that Hale's continuing to possess the factory, or holding over, was not of course the holding over of all the defendants; and that he could not continue Crosby and Conkey tenants against their will; but whether the possession and controul of all the defendants had terminated, or were continued as at the first, and so the defendants remained liable as tenants, must depend upon whether Crosby and Conkey had, or had not, surrendered their possession to the plaintiff as aforesaid.
    All questions of fact were left to the jury.
    The court instructed the jury, if they found, as claimed by the plaintiff, that the second lease was made by the firm, or ratified by them as their own, by all of the defendants, and that they did possess or controul the premises under it, and did not surrender possession to the plaintiff until November, 1848, under the principles laid down by the court, their verdict should be for the plaintiff, and to recover any balance of rent down to that time; but otherwise, for the defendants Crosby and Conkey. But if they found that Crosby and Conkey had, at or before the end of any year of their occupancy, abandoned and surrendered their possession of the premises to the plaintiff, according to the principles laid down by the court, then Crosby and Conkey are not liable after that year.
    The jury returned a verdict for the plaintiff against all the defendants for rent down to November, 1848; and the defendants moved for a new trial for a misdirection.

      Wait and E. Perkins, in support of the motion,
    contended, 1. That the lease from the plaintiff to the defendants, for three years from April 1, 1847, to April 1, 1850, was void, by the statute of frauds. Stat. 405, § 1. Eaton v. Whitaker, 18 Conn. R. 222. 1 Sw. Dig. 260.
    2. That if the defendants entered into the occupancy of the mill, under the lease, it was but a tenancy from year to year, to be terminated, at the expiration of each year, as either party elected, or continued, by the acquiescence of both.
    3. That the lease being void by the statute of frauds, and the occupancy of the premises by the defendants, a tenancy from year to year only, then if either of the three defendants, (the partnership being dissolved,) on going out of the firm, abandoned, during the year, the actual occupancy of the mill, and notified the plaintiff both of the dissolution and such abandonment, the holding over of the third defendant into the next year, would not be a holding over against the other two defendants, and they would not be subjected to the payment of rent. It has been held, that where there is a parol lease a certain time, either party may determine it, at the end of term without notice. Ellis v. Paige, 2 Pick. 71. in notis. Moshier v. Reding, 3 Fairf. 478. Hamit v. Lawrence, 2 A. K. Marsh. 366. This being a parol lease for a certain time, all that Crosby and Conkey had to do, to exonerate themselves, was, to walk out of the premises, on the last day of March, 1848, or on any prior day during the year “Fairness” might require notice from them to the plaintiff, but law did not.
    4. That Crosby and Conkey gave up the premises to the plaintiff in June, 1847, when the firm of Crosby, Hale & Conkey was dissolved. The letter from Crosby and Conkey to the plaintiff, in September, 1847, and other evidence, constituted a legal abandonment to the plaintiff; and it was the duty of the judge so to instruct the jury.
    5. That where a lessee holds over, the law implies a new contract similar to the former lease; but there is no such renewal of the original contract, that an action can be maintained upon it for rent; the only remedy being upon the new implied contract. Brewer v. Knapp & al. 1 Pick. 332.
    6. That Hale’s holding over, under the circumstances of the case, was a trespass; and his former partners were not liable for his tortious acts.

      Strong and Foster, contra.
    The plaintiff claimed, that he had proved a letting to all the defendants, and a use and occupation by them for the whole time. The defendants denied it. They admitted a hiring for the year ending April 1st, 1847, and a possession till 1st of June, 1847, without notice of change. The defendants claimed, that the second lease was by Hale alone. The plaintiff claimed it was by all.
    The claim as to delivery of possession, by two out of three partners, as made by the defendants, was sustained by the court. This law is questionable at least; but the defendants cannot complain. As there was a dispute on the facts between the parties, the court could do no less than to leave the question of fact, of abandonment or no abandonment, to the jury. That dissolution of partnership was no surrender. That the personal absence of Crosby and Conkey was no surrender, is unquestionable law. The defendants indeed did not claim otherwise. The court went quite far enough in saying to the jury, that these were circumstances to be considered on the main fact.
    The charge of the court as to parol letting for three years, was according to the admission of the parties on both sides, and is unexceptionable. So also as to the claim of the holding over, by Hale alone; that such a holding was not of course a holding of all the defendants. Of this, at all events, the defendants cannot complain. The disputed question of fact, whether Crosby and Conkey did continue to hold or not, was properly submitted to the jury.
    The instruction given to the jury, as detailed at the close of the motion, is strictly correct.
    There is no question of law on this motion, which was not decided in favour of the defendants.
   Ellsworth, J.

The questions of law which were made in this case, being ruled in favour of the defendants, they can have no cause of complaint on account of the law. Most evidently, the cause was one for the consideration of the jury; and so far as the evidence before them, is detailed in the motion, we think the jury have come to a correct conclusion in their verdict.

The motion shows, that the defendants, as partners, under the name of Crosby, Hale & Conkey, occupied the plaintiff’s mill, under a lease from April, 1846, to April, 1847, at an annual rent of 1,500 dollars; that in February, 1847, a short time before the termination of the lease just mentioned, a new lease was obtained in the company name, to continue for three years from the time when the first ended, at the farther annual rent of 1,650 dollars. Crosby and Conkey, on the trial below, claimed, that Hale, who personally procured the new lease, although then a partner with them, had no authority to take such a lease, in the name and behalf of Crosby, Hale & Conkey; that he had no authority at first, and they had never ratified the lease, by any subsequent assent or acquiescence. Here the plaintiff and defendants were at issue; the plaintiff insisting, that the evidence before the jury fully proved, that Hale was not only authorized, as a partner, to enter into the contract, and so bound the company, but that they afterwards ratified and confirmed it, especially by transferring the lease, and the possession under it, to Hale, as his share of the partnership effects, when the partnership was dissolved, in July, 1849. The jury found this issue in favour of the plaintiff.

Crosby and Conkey further claimed, that the lease, being only by parol, it must be held to be a lease from year to year; and hence, that they could put an end to its continuance, and terminate their tenancy, at the end of the second year; for up to that time, they admitted their liability had continued, since the company were actually in possession during the whole of the first year, and up to the month of July, in the second year. The court concurred in this claim of the two defendants, and instructed the jury, that Crosby and Conkey could terminate their tenancy of the mill, provided they took proper steps to accomplish it, at the end of the second year, and so could put an end to their liability for rent after that time; but that it was, upon the proof in the case, altogether a question of fact, if they had. The jury must say, whether the two defendants had actually done anything of this character or not. The plaintiff denied that they had; the two defendants asserted they had; and here the matter was left with the jury. The court was not asked to put a construction on the evidence offered upon this point; nor would it have been proper for the court so to have done, had such request been made. But it was not made; and the whole evidence went together to the jury. In commenting upon this evidence, in its bearing upon the contested point, the court very properly, as it seems to us, illustrates its meaning, by stating certain specific acts, which, if fairly and openly done by the two defendants, might be held to put an end to their relation as tenants, notwithstanding the lease and the continued personal occupancy of Hale under it. The general rule which was laid down, by the court, for deciding whether all the defendants, or only Hale, actually held under the lease, notwithstanding the dissolution of the partnership, was as fair and liberal towards the two defendants, as they could, with any propriety, ask from the court: “any words or acts of the two defendants, which, fairly interpreted, are a surrender to the plaintiff, by Crosby and Conkey, of their possession,” is the language of the charge. Is this rule too stringent? We think not. If in truth all the defendants continued to be tenants, as the plaintiff insisted was the fact, until the possession was finally ended, and the key returned to the plaintiff, in October, 1848, whether the mill was personally occupied, by one more of the number, under the lease, it is manifestly just, that all should remain liable for the rent. The jury must have found, that the defendants had never repudiated the lease. Crosby and Conkey had given notice, it is true, in September, 1847, that they were no longer connected with the mill themselves, and should not hold themselves liable for future rent; but this notice was accompanied with this reason for their unwillingness to continue liable, that they had been dissatisfied, and upon their late dissolution, had given the leased premises to Hale as his share of the company effects, and that Hale would pay the rent himself, to which the plaintiff immediately replied, and objected; and there the business was left. Their giving up the lease as his share, instead of putting an end to its continuance, is rather an act of affirmance and ratification, than otherwise. The plaintiff most justly insists, on his part, that the original lessees shall be held liable for rent until they, or their assignee, by some open and unequivocal act, put an end to the tenancy and give up possession; and that each lessee, if he will separately claim exemption, shall do whatever, he can do, both by words and acts, towards putting an end to the existing lease, and any possession under it, by the lessees, or some of them: assigning the lease to one partner, and declaring that that partner will alone pay the rent, because he takes the lease as his share, and runs the mill on his own account, is very far from a renunciation of the lease, or of possession upon the terms of it.

We are not called upon to revise that portion of the charge, which was in the two defendants’ favour, that two of three joint lessees can be held to have given up to their landlord their possession, and so terminated their relation as tenants, while one of their number insists upon the continuance of the lease, and actually holds the plaintiff out of possession by virtue of it. This is a very grave question worthy of much consideration. It is forcibly said, by the plaintiff’s counsel, the defendants were let into possession jointly, and they must jointly surrender it, or not at all. Perhaps however, as the lease is good only for one year, a part of the lessees may be permitted to withdraw and give up possession, as far as they are able, to their landlord, although their co-lessee will not unite with them in the act, but obstinately continues his possession, in defiance of their common landlord. This question, however, is now unimportant, because the court, proforma, ruled in favour of the defendants.

In this opinion the other judges concurred.

New trial denied.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Rodman against Denison and another.
    Where the plaintiff, in an action against the indorser of a promissory note, with special counts, to which was added the common count for money paid, laid out and expended, by the plaintiff, for the use of the defendant, failed to prove any demand of the maker, in consequence of which he could not recover on the special counts; but the plaintiff proved, that after the indorsement of the note by the defendant, he had himself indorsed it, at the request and for the sole accommodation of the defendant, under a promise of indemnity; that the defendant thereupon procured the note to be discounted, and after it came to maturity, the plaintiff had to pay it; it was held, that the plaintiff was entitled to recover on the money count.
    This was an action of assumpsit, by the indorsee against the indorsers of two promissory notes, made by George Randolph. There were four or five special counts, to which was added the common count for money paid, laid out and expended, by the plaintiff, for the use and benefit of the defendants, and at their special instance and request.
    The cause was tried at New-London, September term, 1850.
    On the trial, it was proved, that the notes were made and endorsed as alleged in the declaration; that they were discounted by the Mystic Bank, and transmitted thence to the Bank of the State of New-York for collection; that not being paid, they were handed to a notary public for demand and protest, who, as the protest stated, made diligent enquiry for the maker thereof, but was unable to find him or any person, to pay said notes, The defendants then claimed and offered evidence to prove, that before and ever since the giving of the notes, the maker had resided in Chicago, Illinois; which was known to the defendants; but it was not claimed or proved, that it was known to the other parties. The defendants therefore claimed, that the notes should have been sent to Chicago for demand, and that a demand sought to be made in the city of New-York was not a legal demand, and the indorsers were therefore discharged. The court charged the jury, pro forma, that there had not been a legal demand, so as to hold the indorsers, and as such, the defendants were not liable.

      New-London,

    July, 1851.
    The plaintiff insisted, that whatever legal difficulties attended his claim as indorsee merely, the defendants, with full knowledge of the facts, had since, waiving all objections, absolutely promised, that all the plaintiff had done, before and since the dishonour of the notes, in paying the notes, was done at their request, for their exclusive benefit, and under their solemn and unqualified assurances, that the plaintiff should be kept harmless and indemnified. The court instructed the jury, that if the facts so claimed by the plaintiff were proved, although the defendants could not be liable as indorsers merely, they were liable, on this declaration, for the money paid by the plaintiff, which he was entitled to recover; but if otherwise, he could not recover.
    The jury returned a verdict for the plaintiff; and the defendant thereupon moved for a new trial for a misdirection.

      Foster, in support of the motion.

      Strong and Pomeroy, contra.
   Hinman, J.

In this action, there were counts against the defendants, as indorsers of two promissory notes, made by one Randolph, together with the ordinary money counts.

The plaintiff was not able to prove any demand of the maker, Randolph, and, therefore, failed to sustain his special counts; but he did prove, that the notes were made by Randolph, and indorsed by himself, for the sole accommodation of the defendants, who had procured the money on them. at the Mystic Bank; and that the plaintiff had paid the amount, which he recovered in this suit, to the bank, and the defendants had promised to repay it. This, surely, was enough to enable the plaintiff to recover, on the money counts, even if it did not excuse the want of demand on the maker.

The verdict was right, and no new trial is advised.

In this opinion the other judges concurred.

New trial denied.


author: Waite, J.

text:
    Culver against Parish.
    Where it appeared on a scire-facias in a process of foreign attachment, that the defendant was indebted to F, the absconding debtor, by a promissory note, payable to F, or order, on demand, with interest, and secured by mortgage; that F, while the holder of such note, demanded payment of the maker, several times, which he failed to make, after which this process was commenced; and that subsequently, on the same day, and twenty-one days after the making of the note, F, for a full and valuable consideration, indorsed it to G, who had notice of the service of process on the defendant; it was held, 1. that the note had become due, and of course, was over-due, when it was indorsed to G; 2. that being so over-due, the transfer of it did not vacate the plaintiff's lien; 3. that the circumstance that the note was collaterally secured by mortgage, did not vary the case in favour of the defendant; 4. that though the equities to which a negotiable note, negotiated after due, is subject, are limited to such as attach to the note itself, and not to claims arising out of collateral matters, yet this doctrine is not applicable to the attachment of such note, by process of foreign attachment; the only case excepted from the operation of this process being where the note is negotiated before it becomes payable.
    This was a scire-facias in a process of foreign attachment, brought to recover the amount of a judgment obtained against Isaac G. Ford.

    The cause was tried before the superior court for New-London county, at the March term, 1851. The court found the following facts, and reserved the case for the advice of this court.

      New-London,

    July, 1851.
    The defendant and his wife, on the 31st day of March, 1848, made and delivered to Ford, their promissory note, for the sum of one thousand dollars, payable to him, or order, on demand, with interest, and, at the same time, executed and delivered to him a mortgage deed of certain lands, to secure the payment of the note. Ford, while the holder of the note, and before the service of the original process, at several times, and particularly, on the 1st and 21st days of April, 1848, demanded of the makers payment of the note. The copy was left in service with him, on the 21st day of April, 1848; and he afterwards, and on the same day, for a full and valuable consideration, endorsed and transferred the note to Edwin B. Gardner, who, at the time, had notice of the attachment made by the plaintiff.
    The question was, whether upon these facts, the plaintiff was entitled to recover.

      Foster, for the plaintiff,
    contended, 1. That the note in question being made payable on demand, and passed, by the payee, to Gardner, twenty-one days after date, was then dishonoured paper. In analogy to the law as to the dishonour of bills and notes payable on time, twenty-one days is quite too long not to effect the dishonour of a note payable on demand. Cases may be found, it is true, where a note has not been considered as dishonoured, though put in circulation a longer time after date; but a more strict rule would be a furtherance of justice. In Massachusetts, by statute, in actions by indorsees against the makers of notes payable on demand, any matter is deemed a defence and may be given in evidence, which would be a defence, if the action were brought by the promisee. Here, the note was actually dishonoured, by a refusal to pay, and that after repeated demands of payment; one of those demands having been made twenty days before the note was put in circulation. This is sufficient, whether it was dishonoured, by mere lapse of time, or not.
    2. That the note, when passed to Gardner, being dishonoured paper, he took it subject to every infirmity, equity and defence, to which it was liable in the hands of Ford, the payee. Robinson v. Lyman, 10 Conn. R. 30. Stedman v. Jillson, Id. 55. In the hands of Ford, he was clearly liable to
    the defence of this process of foreign attachment. Stat. 115. 117. § 229. 232.

      Ford passed this note, and Gardner took it, with notice of the service of the process of foreign attachment on the defendant. It would operate a fraud on the plaintiff, if his lien could thus be defeated. Sylvester v. Crapo, 15 Pick. 92.

      Gardner was a creditor of Ford, and took this note on account. He does not stand here as an innocent purchaser for value. It is a contest between two creditors of Ford. The plaintiff has attached this debt, and done every thing required by law to perfect his lien. It would be unjust to allow Gardner—especially with full knowledge of the facts—now to come in, and defeat or postpone the plaintiff’s lien.

      E. Perkins, for the defendant,
    contended, 1. That this note of the defendant, being payable to Ford, or order, on demand, with interest, and secured by mortgage, carried with it, on the 21st day of April, 1848, the legal presumption that it was not then dishonoured, or paid, and that it was not liable, in the hands of any bona fide indorsee, for value, to any equities or defence existing between the original parties. Wethey v. Andrews, 3 Hill, 582. Ranger v. Cary & al. 1 Metc. 369. Sylvester v. Crapo, 15 Pick. 92. Lockwood v. Crawford, 18 Conn. R. 361. American Bank v. Jenness & al. 2 Metc. 288. Stedman v. Jillson, 10 Conn. R. 55.
    2. That the fact that payment had been actually demanded and refused, before the indorsement, will not, as between these parties, under the circumstances of this case, authorize this note to be treated as one negotiated after dishonoured. Neither Ford nor Parish, nor any person claiming through them, is now at liberty, as against the indorsee, to claim that it was dishonoured paper. Pease & al. v. Hirst & al. 10 B. & Cres. 122. (21 E. C. L. 38.) Sanford v. Mickles & al. 4 Johns. R. 224. Field v. Nickerson, 13 Mass. R. 131.
    3. That Gardner's knowledge of the fact that a copy of the original writ had been left with the defendant, before the indorsement, makes no difference. The title is no more affected, by such knowledge, than it would be, if he had purchased from Ford household furniture, or any other property exempt by law from attachment, knowing that it had been previously attached.
    4. That if, however, this note is to be treated as over-due, when negotiated; yet the indorsement defeated the attachment, and the indorsee is entitled to hold the note free from any such incumbrance. The indorsee of an over-due bill or note is liable to such equities only, as existed against or attached to the bill or note itself, and not to claims arising out of collateral matters. Robinson v. Lyman, 10 Conn. R. 31. Burroughs v. Moss, 10 B. & Cress. 558. (21 E. C. L. 128.) Robertson v. Breedlove, 7 Porter, 541. Britton v. Bishop, 11 Verm. R. 70. Walbridge v. Kibbee, 20 Verm. R. 543. Odiorne v. Howard, 10 N. Hamp. 343. Hughes v. Larges, 2 Barr, 103.
   Waite, J.

At the time when the copy was left in service with the defendant, he was indebted to Ford, the absconding debtor, by a promissory note, made by the defendant and his wife, in the sum of one thousand dollars, payable to him, or order, on demand, with interest.

While this note remained the property of Ford, it was competent for the plaintiff, under the provisions of our statute relating to foreign attachments, to attach the debt thus due from the defendant; and that attachment could only be defeated, by a transfer of the note before it became due. Enos v. Tuttle, 3 Conn. R. 27.

Was the transfer in the present case, so made? If it was, then the effect was to defeat the plaintiff’s lien; otherwise, it will remain. Precisely how long the payee of a negotiable promissory note, payable on demand, may retain it, and then indorse it, before it becomes over-due, does not appear to have been determined.

In order to charge an indorser, in such case, payment must be demanded and notice of the dishonour given, within a reasonable time. Lockwood v. Crawford, 18 Conn. R. 362.

In the present case, when the attachment was made, the payee continued the holder of the note. A period of more than twenty days had elapsed after the making of the note; and payment had been several times demanded of the defendant. Under such circumstances, we think, that the transfer which was subsequently made, was not made before the note became due, and consequently, did not vacate the plaintiff’s lien.

The circumstance that a mortgage was given as collateral security, does not, in our opinion, vary the case in favour of the defendant. It would rather seem to indicate an understanding of the parties, that the debt should be suffered to lie, and not that the note, although in form negotiable, should be put in circulation as mercantile paper.

It is however said, that if the note were negotiated after it became due, yet as the indorsement passed the legal title, it is liable, in the hands of the indorsees, only to such equities as attach to the note itself, and not to claims arising out of collateral matters. And this is undoubtedly so. Thus, if a debt be due from the payee to the maker, it cannot be set off against the note in a suit by the indorsees. Robinson v. Lyman, 10 Conn. R. 31. Stedman v. Jillson, Id. 55. Burrough v. Moss & al. 10 B. & C. 558. (21 E. C. L. 128.)

But this rule does not apply to an attachment of a debt under our foreign attachment laws. They provide, that any debt due to the absconding debtor may be attached; and there is no exception in our laws, as there is in those of Massachusetts, in favour of debtors upon negotiable securities. Cushman v. Haynes & Truse, 20 Pick. 132.

A debt due upon a negotiable promissory note, is as much liable to attachment as any other debt, with this qualification, that when the note is negotiated before it becomes due, it will defeat the attachment. Enos v. Tuttle, ubi sup. This qualification is allowed, for the purpose of giving effect to the law making such instruments negotiable, that indorsees may take them, before they become payable, without enquiring whether any liens have been created upon them, while in the possession of previous holders. But where they take them after they become payable, their situation is different; and it is for them to enquire, whether they still remain valid securities. Thus, if a promissory note is paid, and then indorsed before it becomes due, such payment will not avail the maker in a suit in favour of an indorsee without notice.

But if the payment was made to a holder, after the note became due, it will bar any suit in favour of any subsequent indorsee.

Our advice therefore is, that the plaintiff is entitled to judgment.

In this opinion the other judges concurred.

Judgment for the plaintiff.


author: Storrs, J.

text:
    Waldo Comins, executor of Josiah Comins, against Simon D. Comins.
    Where it appeared merely, that the defendant had been in possession of the land in question, by virtue of a parol gift from the owner; it was held, that his possession was to be deemed constructively to have been in subordination to the legal title, and therefore under, and not adverse to, such owner.
    But where it further appeared, that to the possession of the defendant was superadded the fact, that it was exercised by him under a claim of title in himself; it was held, that this fact rebutted the presumption that he occupied under the owner, or any other person, and shewed, therefore, that the possession was adverse.
    An entry and possession, by a party, under a claim of title in himself, by virtue of a void grant, whether by parol or otherwise, is not less adverse, than if possession were taken and held, without any colour of title whatever.
    Where the question between the parties was, whether the defendant had been in the adverse possession of the land in controversy, involving two enquiries, first, whether the acts of the defendant on the land were such as properly to constitute a possession by him, and secondly, if they were, whether such possession was, in its character, adverse to the owner; it was held, 1. that acts of the owner, regarding the management and care of the premises, with his declarations accompanying such acts, as to what he had done or intended to do upon or with the premises, were admissible upon the subject of enquiry; 2. that other declarations of the owner, which accompanied no act of his, being mere statements of what he had done, or intended to do, respecting the premises, were inadmissible.
    This was an action of ejectment for a barn-yard and the barn and carriage-house thereon standing, in the town of Thompson.

    The cause was tried, on the general issue, at Brooklyn, January term, 1851.
    On the trial, the plaintiff claimed to recover the seisin and possession of the barn-yard and buildings standing thereon, mentioned in the declaration; claiming title as executor of the last will and testament of Josiah Comins, who, it was admitted, was, in 1833, the owner of a farm of about eighty acres, with a dwelling-house and other buildings thereon, and of which, the demanded premises constituted a part; and that he so continued to be the owner thereof, up to the time of his death, in May, 1849; unless the defendant had acquired title, by fifteen years, adverse possession. The defendant claimed and offered evidence to prove, that in the spring of 1833, Josiah Comins, the father of both the parties, gave the barn and yard to him, the defendant, to induce him to remain in Thompson, and not move out of the state, as he was then intending to do; that immediately thereafter, he went into possession of said barn and yard, repaired the barn, and used the premises as his own, from that time to the commencement of this suit, a period of more than fifteen years; during all which time he claimed, that he had exclusively occupied the premises as his own, adversely to said Josiah Comins and all others; and thereupon he claimed, that such use was a bar to the plaintiff’s recovery.
    Windham,
    July, 1851.
    The plaintiff claimed, that, as it was admitted, that the defendant entered under a parol gift, and not under any deed or instrument in writing, such an entry was in subordination to the title of the true owner, and was not adverse; and that by his remaining in possession under such entry, he gained no title, although he had been in possession for a period of more than fifteen years: and so he requested the court to charge the jury.
    On this point, the court charged the jury, that the case depended upon the character of the defendant’s possession; that in order to gain a title by possession, his possession must have been adverse, exclusive and uninterrupted, for the period of fifteen years; that by adverse possession was meant a possession as owner, under such circumstances as evinced a claim of right, and not as a mere occupier, by the sufferance or permission of the owner; that he must have possessed it, as in his own right, and not by the license of the owner; that if he occupied as owner, because his father gave him the property, that was enough; but if he occupied it merely because his father permitted him to use it, that was not enough; and that if he went in, or held the property as his father’s, his possession was not adverse.
    During the trial, many acts of said Josiah and declarations of his accompanying them, were introduced by the plaintiff, for the purpose of rebutting the defendant’s claim of adverse possession. Such of his declarations as were unaccompanied by any act of his, were objected to; and it was not claimed, that they were admissible. Many such were, however, received, under an understanding that the court would instruct the jury, in reference to evidence of this description. It appeared, that said Josiah had a pile of shingles near, or by the side of, the barn, and on some unenclosed land between it and the highway, which the plaintiff claimed, and offered evidence to prove, were procured for the purpose of shingling the barn; and that the deceased had agreed with a carpenter to shingle it. A witness testified, that at his own house, a few rods from the barn, said Josiah, a month or two before his death, told the carpenter, that the shingles were procured for the purpose of shingling the barn. It appeared, that the barn and yard was bounded in part by highway, and on all other parts, by lands of said Josiah.

    The court said to the jury, on this subject, that declarations of said Josiah, which acco mpanied and characterized any act of his, in reference to this property, were admissible ; and that all his declarations, while in or about the barn or yard, tending to characterize the object for which he was there, were admissible evidence ; but that naked declarations of his, while away from the premises, either in reference to what he was going to do, or which narrated what he had done, as that he was going to the barn, or that he had permitted the defendant to occupy without paying rent, were not admissible.
    The defendant obtained a verdict; and the plaintiff moved for a new trial for a misdirection.

      Foster and T. E. Graves, for the plaintiff,
    contended, 1. That as it was agreed, that the defendant went into possession under a parol gift, and not under a deed or instrument in writing, the jury should have been instructed, that his title was in subordination to that of Josiah Comins, and not adverse thereto; and that, by remaining in possession, under such an entry, he gained no title, though he remained in possession more than fifteen years. Bryan v. Atwater, 5 Day, 181. French v. Pearce, 8 Conn. R. 443. Angell on Water-C. § 210. 1 Greenl. Ev. 20. Higgins v. Gill, 1 McMullan's R. 329. Wallace v. Maxwell, 1 Ired. 185. Sumner v. Stevens, 6 Metc. 337.
    2. That the declarations of Josiah Comins were not admissible. In the first place, they were not part of the res gestae, and were accompanied by no act, and tended to characterize none. 1 Greenl. Ev. 120, 1. 1 Stark. Ev. 47. (3rd Am. ed.) Enos v. Tuttle, 3 Conn. R. 250. Pool v. Bridges, 4 Pick. 378. Avery v. Clemons, 18 Conn. R. 306. Russell v. Frisbie, 19 Conn. R. 205. 209. Secondly, the declarations in question were not admissible, as they were in favour of the person making them. Smith v. Martin, 17 Conn. R. 399. Peaceable d. Uncle v. Watson, 4 Taun. 17. 1 Greenl. Ev. 203. § 171. Higham & ux. v. Ridgway, 10 East, 109. 117. Roe d. Brune v. Rawlings, 7 East, 279. 289.

      Welch and Honey, contra.
   Storrs, J.

As this case has been submitted to us without argument, and no brief has been presented on one side, we are not aware on what ground the plaintiff would vindicate the first claim made by him, on the trial, that, although the defendant, while he occupied the demanded premises, claimed title thereto in himself, yet, that, as he so occupied by virtue of a parol gift only from the owner, (who was his father and the plaintiff’s testator,) such possession was not adverse to the owner, but was to be deemed in law subordinate to his title. If indeed nothing had appeared in the case, excepting merely that the defendant had been in the possession of the land, his possession would be deemed constructively to have been in subordination to the legal title, and therefore under, and not adverse to, the true owner; but when to the fact of his possession is superadded the fact, that it was exercised by him under a claim of title in himself, the latter fact rebuts the presumption that he occupied under the owner, or any other person, and shews therefore, that the possession was adverse. Indeed, it is the claim of title with which a possession is accompanied, which shews that the possessor occupied the land as his own, and not as tenant, or recognizing the title, of another; and for that reason such possession is adverse. There is frequently no little difficulty in determining as to what evidence is sufficient to prove such a claim; but we are not now called upon to consider that topic; because, in the present case, it is conceded, that it was established. It would have been sufficient, in this case, for the defendant to shew, that he was in possession of the premises for the period of fifteen years, under such claim of title, or as his own, without adducing any grant, or other colour of title under which he claimed to hold. The parol gift to him was void, under our statute of frauds, for the purpose of conveying a title, although it was evidence to shew the ground or claim under which he entered and occupied, and that he thus entered and occupied the land under it, as his own and claiming title to it in himself, as though the grant were valid; and such an entry and possession would preclude the idea that he held in subordination to, or recognizing the title of, the owner, or as his tenant. And we cannot perceive how an entry and possession, under a claim of title in himself, by virtue of a void grant, whether by parol or deed, is less adverse, than if taken and held without any colour of title whatever. There is the same possession under a claim of title, and the same entire destitution of a regular valid title, in both cases.

The question in Sumner v. Stearns, 6 Metc. 337, was precisely like the present; and the views which were then taken by the court, are such as we have expressed. The charge below on this point, which was in accordance with them, was therefore unexceptionable.

The remaining point respects the correctness of the rule laid down to the jury, in the charge below, in regard to the declarations of Simon Comins, the father of the defendant, and the owner of the demanded premises.

The question between the parties was, whether the defendant had been in the adverse possession of the land. This involved two enquiries: first, whether the acts of the defendant on the land, were such as properly to constitute a possession by him; and secondly, if they were, whether such possession was, in its character, adverse to the said owner. In order to rebut the evidence which has been adduced by the defendant, to shew the fact of such possession and that it was adverse, the plaintiff adduced in evidence the acts of his testator, (the owner,) in and about the premises, in reference to and connected with their management and care, with his declarations accompanying such acts, and also other declarations of the owner, while away from the premises, as to what he intended to do, or narrating what he had done, as, for instance, that he was going to repair the barn on the premises, or that he had permitted the defendant to occupy them without paying rent. Such acts, and the declarations accompanying them, were not objected to, by the defendant; and the jury were instructed, that they were admissible for the purpose for which they were introduced. This was plainly correct. Those acts were admissible, not only for the purpose of rebutting the claim of the defendant, that the owner did not retain the possession of the premises, but had been ousted therefrom; but, if the defendant succeeded, in shewing that he had acquired possession, for the further purpose of rebutting his claim that it was taken and held under a claim of title in himself, and not in subserviency to the title of the owner; and the declarations accompanying those acts, were admissible, on a principle too familiar to require authorities, for the purpose of explaining and shewing their true character. But as to the other declarations of the owner, made while he was absent from the premises, and which accompanied no act, but which were mere statements of what he had done, or intended to do, respecting the premises, the jury were instructed, that they were inadmissible for the purpose for which they were offered. To this part of the charge we see no objection. These were mere naked declarations, and were no part of a res gesta, because they accompanied no act, and therefore could not tend to explain or characterize any. It did not appear, nor was it claimed, that they were made in the hearing of the defendant, so that they could be construed into any admissions by him; indeed, they stood upon no higher ground than a bare statement, by any other person than the owner, as to what the latter intended to do, or had done, and therefore come within the general objection to mere hearsay.

A new trial is not advised.

In this opinion the other judges concurred.

New trial denied.


text:
    Goodell and wife against Williams.
    On a certain day, A failed in business, and in contemplation thereof, executed and delivered an instrument in writing, whereby it purported to convey all his personal estate to E and four other persons, jointly, for the purposes therein after specified; to have and to hold such estate to them and their assigns forever; authorizing and empowering W, in behalf of the grantees, to take immediate possession of all said estate, and apply the avails, first, to extinguish the claim of E, and then successively, in the order specified, the several claims of the other grantees; and the balance of the estate to deliver over to A. By virtue of this instrument, W took possession of the estate so conveyed, and had it in his possession, when the plaintiff, a creditor of A, attached it, by process of foreign attachment. The persons named in such instrument as assignees, were creditors of A, and had just claims against him, of different amounts, as therein described. They had all assented to said conveyance, before the plaintiff’s attachment was made. From the avails of the estate W has since extinguished all the debts specified therein, except a part of one, thereby exhausting the property in his hands. Held, 1. that the instrument in question, being an assignment of property; made by a person in failing circumstances, with a view to his insolvency, and in trust for his creditors, was within the statute of 1828, and governed by its provisions; 2. that not having been made for the benefit of all his creditors, nor in proportion to their respective claims, it was, as against his creditors, fraudulent and void; 3. that consequently, it gave W no right to hold the property, as against them, and he was liable therefor in this process; 4. that if the assignment be considered as made to the assignees named therein, and W acting as their agent, it would not vary the result, as W would still have in his hands the property of A, under a void assignment. [One judge dissenting.]
    In a process of foreign attachment, it is not necessary to shew a return of the execution against the absconding debtor, before the commencement of the scire-facias against the garnishee.
    This was a suit, by scire-facias, brought to recover the amount of a judgment rendered in an action commenced, by process of foreign attachment, against Carpenter & Elliott.

      Windham,

    July, 1851.
    Upon the trial of the cause, to the jury, at the January term of the superior court for the county of Windham, in 1851, the principal question was, whether the defendant was the trustee or debtor of Carpenter & Elliott, or had property of theirs, in his hands, liable to be attached, on the 5th day of August, 1848, when the copy of the original process was left with him.

      Carpenter & Elliott, on that day, failed in business, and in contemplation thereof, executed and delivered to the defendant an instrument in writing, the material parts of which are as follows:
    “We, Jesse Carpenter and William D. Elliott, partners in business, under the name and firm of Carpenter & Elliott, for the consideration of one dollar, and for the purposes hereinafter specified, do give, grant, bargain, sell and convey unto Ebenezer Elliott, Williams, Ely & Co., Sylvester Elliott, and Linus Elliott, and Coleman & Larned, jointly, and for the purposes hereinafter specified, all the personal estate of the co-partnership of Carpenter Elliott, except such as may be by law exempted from execution, meaning hereby all the cotton in the various stages of manufacture, (and other personal property and choses in action therein described,) and hereby transfer to the grantees our lease of the cotton mill, now in our occupation, and to them give power therein immediately to enter, and to use for the purpose of manufacturing goods.
    “To have and to hold the above described estate to them and their assigns forever, for the following purposes, and on the following conditions.
    “Whereas we are indebted to said Williams, Ely & Co., by notes and books, in about the sum of 414 dollars, and to Clemens & Larned, by book, in about the sum of 125 dollars; and whereas Ebenezer Elliott has endorsed our note for the sum of 500 dollars, and Sylvester & Lewis Elliott have, for our accommodation, become receipts-men in about the sum of 800 dollars, for certain goods attached; Nathan Williams, Jun., is hereby authorized and empowered, in the name and behalf of the grantees, to enter into the immediate use of the said cotton factory, and take possession of all the estate above named, and make as perfect an inventory of the same as may be, and may use said mill to manufacture into goods all the cotton now in process of manufacture, and collect such sums as may be due, sell and dispose of any and all of said estate, as may be best, in his belief; and the amount shall be applied to extinguish the note indorsed by Ebenezer Elliott; second, the notes and book debt of Ely & Co.; third, to pay such liabilities as may fall on Sylvester and Linus Elliott, in consequence of their being receipts-men as aforesaid; and fourth, to pay the debt of Clemens & Larned; and the balance of the estate, or cash, to deliver over to us; he keeping a full and accurate account of all the expenses and sales.
    “In witness whereof, we have hereunto set our hands and seals, this 5th day of August, 1848.

      Jesse Carpenter.

      Wm. D. Elliott.”

    By virtue of this instrument, the defendant took possession of personal estate, to the value of 1061 dollars, 10 cents, which had previously belonged to the firm, and had the same in his hands, when he was copied as trustee.
    It appeared, that the persons named as assignees in said instrument, were creditors, and liable substantially as therein described. Some of them were present, at the time of the execution of said instrument; and all had knowledge of it, and assented to the same, before the plaintiff’s attachment was made.
    The defendant, from the avails of the property, has since extinguished and paid all the liabilities and debts mentioned in said document, except the debt of Clemens & Larned, upon which he has only paid the sum of 44 dollars, 81 cents, having, by his previous payments, and by his expenses and charges, for services in the management of the business, amounting to 102 dollars, 44 cents, exhausted the avails of the property.
    Upon these facts, the plaintiffs claimed, that the conveyance to the defendant was void, as against them, as creditors of Carpenter & Elliott. The defendant claimed, that it was not void; and the court, pro forma, charged the jury in conformity with the defendant’s claim.
    It further appeared, on the trial, that the execution, upon which demand was made of the defendant, had not been returned to the office of the clerk of the court from whence it issued, until after the issuing of the writ of scire-facias; and therefore, the defendant claimed, that the plaintiffs had failed to prove a material allegation in their declaration; and consequently, that he was entitled to a verdict. But the court charged the jury, that the time of the return of the execution was not a material fact; and that whether returned before or after the issuing of the writ of scire-facias, it made no difference in respect to the plaintiffs’ right to recover.
    The jury returned a verdict in favour of the defendant; and the plaintiffs thereupon moved for a new trial; and the case was reserved for the advice of this court, and was now submitted, by counsel, without argument.

      Welch, in support of the motion.

      T. E. Graves, contra.
   Waite, J.

The statute relating to the settlement of insolvent estates, assigned for the benefit of creditors, provides, that all assignments of property, made by any person, in failing circumstances, with a view to his insolvency, to any person or persons, in trust for his creditors, or any of them, shall, as against the person making such conveyance, be deemed and adjudged fraudulent and utterly void, unless made for the benefit of all the creditors, in proportion to their respective claims. Stat. 363. c. 4. § 66.

Was the assignment under which the defendant claimed a right to hold the property of the absconding debtors, made in violation of the provisions of this statute? It is found, that the assignors, on the day on which it was executed, failed in business, and in contemplation thereof, made the conveyance. Upon its face, it appears not to have been made for the benefit of all the creditors. And even among those that are named in the instrument, the conveyance is not made to them, in proportion to their respective claims. Some are to be paid in full, before others are entitled to any share; and there is no equality among them.

The conveyance therefore clearly falls within every provision of the statute, provided a trust was thereby created. Although the first part of the instrument purports to convey the property to the assignees, yet the latter part explains the manner in which they were to take. Nathan Williams, Jun., was authorized and empowered to take possession of all the property, sell and dispose of the same, and apply the avails in payment of the several claims of the creditors, in the order specified. They having assented to the conveyance, as made, could take only in the manner therein specified—that is, through Williams, as trustee, to sell the property and pay the avails to them.

When he received the property, he took it merely as trustee for the creditors named; and while it remained in his hands, and was attached by the plaintiffs, it was in his possession and under his controul, as such trustee.

The conveyance being declared, by the statute, to be void, as against the plaintiff's, the creditors of the assignors, it gave the defendant no right to hold the property, as against them, and placed him in the same situation as he would have been in, had no such conveyance ever been made.

But were the conveyance to be treated as one made directly to the assignees, and Williams merely constituted their agent to sell and dispose of the property for them; still the result would not be materially varied. Upon that construction, the conveyance would operate as creating a trust in them, to sell and dispose of the property, and apply the avails in payment of their several claims, in the order specified in the conveyance, and account with the assignor for the balance.

Clemens & Larned, the creditors last to be paid, although taking a legal title jointly with the other assignees, could have no beneficial interest, until all the other claims had been satisfied; and as trustees, all would be accountable for the faithful execution of the trust. In that view of the case, the assignment would be invalid, as against these plaintiffs, and furnish no protection for the property, while in their hands, or in the hands of their agents.

Another question is presented in the motion, and that is, was it unnecessary for the plaintiffs to shew a return of the execution before the commencement of the present suit? The opinion already expressed renders a consideration of this question unnecessary. We therefore merely observe, in relation to this matter, that we concur in the opinion expressed by the judge in the court below. But upon the other ground, we advise a new trial.

In this opinion the other judges concurred, except Ellsworth, J, who dissented.

New trial granted.


author: Church, Ch. J.

text:
    Walbridge against Arnold and another.
    Where the declaration, in an action on a promissory note, alleged, that the defendants, in and by a certain writing or note, under their hands, by them well executed, promised, &c.; and the proof was, that one of the defendants having signed the note in his proper hand-writing, the other defendant, acting freely and voluntarily, made his mark, between his name, written by another, at the bottom of the note, and the word “mark”—thus, “E. A’s X mark;" it was held, that there was no essential variance.
    Nor did it make any difference, that in making such mark, the hand of the writer was guided by the hand of another person.
    Where the defence, in an action on a promissory note, was, want of consideration; the plaintiff claimed, that a violent assault and battery had been committed upon him, by several persons, with whom the defendant A was confederate, and who were influenced by him to commit the assault, and that the note in question was understandingly given by A, on a settlement, and as a compromise of the damages claimed of him by the plaintiff; to substantiate this claim the plaintiff offered testimony to shew, that there had been a narration of the facts, stating all the circumstances, in the presence and hearing of A, by one of the confederates in the assault; to which narration A offered no contradiction or explanation; it was held, 1. that the testimony offered was admissible to establish the plaintiff's claim; 2. that the facts claimed by the plaintiff, shewed a sufficient consideration.
    Where a further defence was, that when the note was given by A, he was blind, and could not read it; that he was then under arrest and held in custody, on a criminal prosecution; and that, in that condition, he was overcome by threats, and was not a free and voluntary agent in giving the note. In view of all the evidence upon the point, the court charged the jury, that the threats in question, in order to avoid the note, must have been such as would intimidate a man of ordinary firmness; adding, that if A had mind enough fairly and fully to comprehend the cause and object of the note, and the nature and extent of it; and if he acted as a free and voluntary agent in executing it, it would be good,—otherwise, it would be absolutely void; after a verdict for the plaintiff, it was held, that the charge was unexceptionable.

      Hartford,

    June, 1852.
    Where a further defence to such action was, that the note was given under the pressure of a criminal prosecution, and to induce a suppression of it; which was denied, by the plaintiff, who claimed, that the pendency of the criminal process had no influence, and was not intended to have any, in procuring the note; and the court charged the jury, that if the note was given freely, to satisfy the plaintiff’s private claim for damages, it was good; but void, if it was given, in whole or in part, to suppress an enquiry into the commission of an offence, or to prevent, in any measure, the administration of criminal justice; it was held, that the charge was not erroneous.
    This was an action on a promissory note, alleging, that the defendants, in and by a certain writing or note, under their hand, by them well executed, dated the 16th day of June, 1849, promised the plaintiff to pay him, sixty days after said date, for value received, the sum of 200 dollars and 12 cents, with interest; with a profert of the note. To this were added the common counts.
    The defendants pleaded the general issue, with notice of special matter to be given in evidence.
    The cause was tried at Hartford, January term, 1852.
    On the trial, the plaintiff offered in evidence a note, the body of which was in the hand-writing of Ralph R. Phelps, Esq., signed by Marvin Bunce, one of the defendants, to which the other defendant, Ethan Arnold, had affixed his mark, between his name and the word “mark;—thus, “Ethan Arnold's X mark.” It appeared, that the words in writing were written by said Phelps, at the time of the alleged execution. The defendants objected to the reading of this note, under the special count in the declaration, because, as they claimed, it varied from the note described therein. The court overruled the objection; and the note was read to the jury.
    The defendants claimed, that the note had not been delivered to the plaintiff, and was not, therefore, the note of the defendants. The court instructed the jury, that the note was of no validity, unless it had been delivered.
    The defendants further claimed, that at the time that Arnold affixed his mark to the note, he was blind, and had not intelligence enough to comprehend its import, and therefore it was void. The court instructed the jury, that the mere inability of Arnold to read the note, was no objection to it, if it was fairly and fully read to him, and signed by him, and he clearly understood the nature and contents of it; otherwise, it was absolutely void. And as to intelligence, the court instructed them, that if Arnold, at the time, had mind enough fairly and fully to comprehend the cause and object of the note, (claimed to be the settlement of a private suit for damages,) and the nature and extent of it, this was sufficient to make it a good note; otherwise, it would be absolutely void.
    The defendants further claimed, that at the time when Arnold put his mark on the note, he was not a free and voluntary agent, but was under an arrest and detention, and in duress, by an abuse of criminal process, and was overcome by threats; and therefore, the note was void. The court instructed the jury, that the defendant Arnold must have acted as a free and voluntary agent; that his being under an arrest and detention, (if indeed he was,) was no objection, provided it was, as the plaintiff insisted, a lawful arrest and detention, and no abuse of process, by detention or otherwise; if this was not so, the note would be void; and further, that a legal arrest and detention was no duress; and threats, in order to be sufficient to avoid the note, must be such as would intimidate a man of ordinary firmness.
    The defendants further contended, and offered evidence to prove, that a few days previous to the execution of said note, Arnold and five others had been arrested, upon a grand-juror’s complaint, for having broken the public peace, by assaulting, tarring and feathering the plaintiff Walbridge, and stood bound over, for a further investigation before the magistrate; that on the day to which the examination was postponed, the grand-juror agreed with Arnold and the others, that if they would plead guilty to the charge, and submit to a fine of seven dollars, each, and costs, and pay Walbridge the sum he demanded for damages, being the amount mentioned in the note, the prosecution should be stopped, if the court was satisfied, and no further proceedings had therein, beside said costs and damages; that they did accordingly plead guilty, were fined seven dollars, each, and costs, to the acceptance of the court, for which they gave their notes respectively to the treasurer of the town; that no further proceedings were had on the complaint; and that Arnold, under these circumstances, gave said note to Walbridge. The defendants therefore insisted, that the consideration of the note was parcel of the settlement, and in part at least for the suppression of a criminal prosecution, and was therefore void.
    The plaintiff, on the other hand, denied these facts, and claimed to have proved, that the termination of the criminal proceedings was a matter entirely distinct, and constituted no part of the consideration of the note; but that the note was given upon a separate promise to Walbridge to satisfy his private claim.
    Upon this poin, thet court instructed the jury, that there was such a principle of law as that claimed by the defendants, viz., that a note founded upon an agreement or understanding, in whole or in part, to suppress an enquiry into the commission of an offence, or to prevent, in any measure, the progress and administration of criminal justice, or to shield an offender from punishment, would render the note void; but that it did not follow, that a person who was accused of a crime, could not give his note to the person injured in satisfaction of the private injury; and if, in the present case, the jury were satisfied, that the note was given to Walbridge freely, and not under the use of criminal process, but solely by way of settlement with him, for his private injury, it would be good.

      Arnold claimed, that, if the jury found, that the criminal process was, in any manner, used to obtain the note, the note was void.
    The plaintiff denied it was used at all, for that purpose, and claimed, that said Arnold acted freely and voluntarily in giving the note; and wished the settlement to be made, to stop the civil suit; and that the grand-juror made use of the criminal process for public purposes alone.
    The court instructed the jury, that if it was so, as the plaintiff claimed, and further, that the note was given freely for the private claim only, it was good; but if as the defendant claimed, it was not good.
    The defendants further claimed, that if the note was given, as they insisted, for the purpose of breaking up the defendant, Arnold, in his business of selling liquor, there was no consideration for it, and it was void.
    This the plaintiff denied. He insisted, the note was not exacted or given for any such purpose at all, but freely and exclusively to settle the private claim and suit of the plaintiff.
    This fact was left to the jury, the court instructing them, that if the note was given solely for the purpose, and in consideration of said private settlement, as in this motion before claimed by him to be true, and in the manner claimed, the note was good; but if, as the defendant claimed, to break up his business, it was not good.
    The defendants further claimed, that the grand-juror, in bringing about the settlement of said criminal proceeding, was to receive from Arnold and others, the sum of fifteen dollars, for the discharge of his public duty; and that said sum was embraced in the note to Walbridge.

    The court instructed the jury, that if this was so, said note was void, and this action could not be maintained.
    In the progress of the trial, the plaintiff offered R. R. Phelps, Esq., as a witness, who testified to a narration, by one of the associates of Arnold in the assault upon the plaintiff, given in the presence of Arnold, and within his hearing and with his approval, stating particularly the manner in which he, and Arnold, and the others, made the assault; and that Arnold, during the narration, produced a letter from Porter, one of their associates, then absent, shewing the more active part Porter had taken in the affair. This narration, the plaintiff claimed, was given on the occasion of making the note; and he offered the evidence, not for the purpose of proving that the assault had actually been made, but as shewing the cause, occasion and circumstances of Arnold’s giving the note, and that he understood the nature and object of the settlement with the plaintiff for which it was given.
    The defendants objected to the admission of this evidence; but the court overruled the objection and received it.
    The jury returned a verdict for the plaintiff; and the defendants moved for a new trial.

      Fellowes and H. Sherman, in support of the motion,
    contended, 1. That the court erred, in ruling that there was no variance between the note offered in evidence and that described in the declaration. Chitt. on Bills, 570. Levy v. Wilson, 5 Esp. 180. Rossiter v. Marsh, 4 Conn. R. 196. Fullerton v. Seymour, 5 Verm. 249. Child v. Moore, 6 N. Hamp. 33. Strader v. Alexander, 9 Port. 441. Pease & al. v. Morgan, 7 Johns. R. 468.
    2. That the court erred also, in instructing the jury, that the threats, in order to be sufficient to avoid the note, must be such as to intimidate a person of ordinary firmness. The issue thus put to the jury, was, whether Arnold was a man of ordinary firmness. This was not the true issue: the enquiry was much broader.
    3. That the court erred also, in instructing the jury, that if the arrest was lawful, it constituted no objection to a recovery; and that a legal arrest and detention were no duress. 1 Sw. Dig. 311. Evans v. Huey & al. 1 Bay, 12. Sasportas v. Jennings & al. Id. 468. Collins v. Westbury & al. 2 Bay, 211. Watkins v. Baird, 6 Mass. R. 506. Chase v. Dwinal, 7 Greenl. 134.
    4. That the court erred, in admitting the testimony of R. R. Phelps, Esq. It did not tend to prove the matter in issue. It had nothing to do with the giving of the note.

      T. C. Perkins and Drake, contra,
    were stopped by the court.
   Church, Ch. J.

There are several matters to which our attention has been called, supposed to be suggested by this motion, to which we have not thought it necessary to advert. They are immaterial. Some other questions deserve consideration.

1. The declaration contains two counts; one special, declaring on the note in suit; the other a general money count; both counts intended to set up the same cause of action. In the special count, it is alleged, that the defendants, in and by a certain writing or note, under their hands, by them well executed, promised, &c. Under this allegation, it appeared, or proof was offered, that Arnold, one of the defendants, executed the note in no other way than by affixing, with his own hand, his mark between his name and the word “mark;” thus, “Ethan Arnold's X mark;” and that the written words were written by Ralph R. Phelps, Esq., by whom the body of the note was also written.

The note, thus executed, was objected to as evidence under the first count, on the ground of variance between it and the note. We think there was no essential variance. It has always been holden, that an instrument may be well executed by the mark or cross of the signer; it is the making of the mark, by himself, by his own hand, which constitutes the execution of it under his hand; the written name only designates whose mark or execution it is. This is essentially different from the cases cited by the defendants, in which the averments in the declaration were, in substance, that the notes were executed by the defendants, their own names, in their own proper hand-writing, being thereunto subscribed, &c. Nor is the case altered, by the fact, that Phelps guided the hand of Arnold in making the mark, so long as Arnold acted freely.

2. The defendants claimed, at the trial, that the note in suit was given without consideration; and that said Arnold was a blind man, and did not know the object or purport of the note to which his mark was affixed. But the plaintiff claimed, that a violent assault and battery had been committed upon him, by several persons, with whom the defendant Arnold was confederate, and who were impelled and influenced by him to commit the assault; and that the note in question was understandingly executed by Arnold, on a settlement and as a compromise of the damages claimed by the plaintiff of him; and to prove that the note was thus given, R. R. Phelps, Esq., was called as a witness, to testify, that when the note was executed, one Spafford, a confederate in the assault, in the presence and hearing of Arnold, stated the circumstances of the assault, and Arnold's connexion with it. The proof thus offered Was objected to, and admitted.

Although Arnold was blind, yet he could hear; and if facts were stated in his hearing, which implicated him, as a participator in the crime, and showed his liability, to the plaintiff; and when this matter was the subject of consideration and conversation, and he made no contradiction, nor explanation, nor offered to do so; this certainly conduced to prove his assent to the facts thus stated, and of course, that he recognized his liability to the plaintiff for damages for the injury, and his willingness to execute the note in settlement; and thus prove a consideration of the note.

3. It was urged in defence, that, when this note was executed by Arnold, he was blind, and could not and did not read the note; that he was then under an arrest, and was held in custody under a criminal prosecution; that he was, in that condition, overcome by threats, and was not a free and voluntary agent in executing the note. In charging the jury upon this part of the defence, the court said, that threats, in order to avoid the note, must have been such as would have intimidated a man of ordinary firmness. Of this instruction the defendant complains.

If this had constituted the entire instruction of the court to the jury on this subject, we might well doubt whether the jury were not probably misled by it. Taken by itself, it was calculated to withdraw their attention from the particular circumstances of the case, and the peculiar condition of Arnold, as the defendants claimed them to be, and to fix it upon the case of a man of ordinary firmness, which the defendants denied Arnold to be. But the whole evidence was before the jury, not only as to the actual state and condition of Arnold, whether a man of ordinary firmness or not; but the evidence of the threats, if any, and of what nature they were, and in view of it all, the court, in addition, correctly informed them, that if Arnold had mind enough fairly and fully to comprehend the cause and object of the note, and the nature and extent of it; and if he acted as a free and voluntary agent in executing it, the note would be good; otherwise, it would be absolutely void. This is the fair import of the charge; and the judge was not requested to be more specific. And it seems to us to cover the whole ground of objection; and that a jury of ordinary intelligence could not have been misled, by the general principle first advanced by the judge, which was legally correct, connected with his subsequent remarks.

4. Nor had the defendants good cause of complaint, that the judge charged the jury, that a lawful arrest and detention, where there was no abuse of process, was no duress. This is an elementary principle. 1 Sw. Dig. 311. 2 Inst. 482.

The question upon the whole of this part of the case, was, whether upon all the facts proved, the jury believed, that in truth, Arnold executed the note in question, as a free and voluntary agent; and we think the jury must so have understood it; and if so, we see no error here.

5. In connexion with the foregoing, we notice another claim of the defendants somewhat analogous in principle. It was, that the note was given under the pressure of a criminal prosecution, and to induce a suppression of it. The plaintiff denied this, and claimed, that the pendency of the criminal process had no influence, and was not intended to have influence, in procuring the note. And here again, the court charged the jury, that if the note was given freely to satisfy the plaintiff’s private claim for damages, it was good; but void, if, as the defendant claimed, it was given, either in whole or in part, to suppress an enquiry into the commission of an offence, or to prevent, in any measure, the administration of criminal justice. We cannot believe that the defendants have suffered from a charge in so many ways intended to protect their rights.

We have looked over this motion attentively, and we see no cause to grant a new trial.

In this opinion the other judges concurred.

New trial denied.