text:
    Washband vs. Washband.
    A. at his own expense, built a plaster mill on the land of B., in pursuance of a verbal agreement that A. might own, and use said mill as his own. Subsequently B. conveyed said land to the defendant, who, by a parol agreement, bought the mill of A., gave his promissory note for the price, and enjoyed it thereafter for some years. Held, that there was a valid consideraation for the mote.
    Where the defendant, in an action upon said note, claimed that it was given, while he was subject to an overseer, appointed in the second stage, without such overseer’s consent, and was therefore invalid; and it appeared that such overseer was appointed for no limited time, but generally, and while the defendant was subject to an overseer in the first stage, who had been appointed for the term of one year, which had not expired when the overseer in the second stage was appointed, but which expired before such note was given; it was held, that said appointment of the overseer in the second stage being made generally, continued, at most, only for the remainder of such term, for which said overseer in the first stage was appointed, and therefore, that when the note was made, the defendant was under no disability.
    The interest upon a promissory note for a particular sum, payable with annual interest on the‘happening of a certain event, should be computed from the date of such note.
    This was an action by Seth Washband the payee against Sterling S. Washband, the maker of a promissory note.
    The declaration, embraced the common counts, and a count upon said note, which was as follows:
    “ On the 2d day of October, A. D. 1843, the plaintiff owned and possessed a certain plaster mill, situated in the town of Derby, in New Haven county, and said mill, consisting of the grinding stones and machinery, shafting, belts and fixtures, and everything in complete running order, and that he then and there sold to the defendant said mill, complete in all its parts, at the special instance and request of the defendant, for the sum of two hundred dollars, and the defendant, in consideration thereof, made and executed his certain writing or note, under his hand by him well executed, thereby promising to pay to the plaintiff, on and after the death of Josiah Wash-band, the sum of two hundred dollars, with annual interest, as by said writing in court ready to be shown appears ; and the plaintiff says, that the said Josiah Washband died on the 3d day of September, A. D. 1847, and that said note, by the terms thereof, became due and payable on said 3d day of September, A. D. 1847.”
    The cause was tried on the general issue, at the term of the superior court holden at New Haven, in December, 1855.
    The defendant claimed that there was no consideration for the note.
    The plaintiff, having proved the execution of the note, offered evidence to prove that, on the day of the date, the father of the plaintiff, Josiah Washband, made and delivered to the defendant, who was also a son of said Josiah, a deed of a piece of land, situated in the town of Oxford, bearing the same date; that, some years before the execution of said deed, the grantor, being the owner of the land, made a verbal agreement with the plaintiff, that he might build a plaster mill on it, at his own expense, and own and use it as his own; that the plaintiff did so build it, at his own expense, and continued to possess and enjoy it until the execution of said note, when, by a verbal agreement, he sold and delivered it to the defendant. Said mill was, in its construction, connected with a saw mill, mentioned in the deed, by spikes, and stood on timbers connected with the mill and soil. On the execution of the note and deed, said Josiah, being about to divide and settle his estate among his children, and wishing to convey to the defendant the land mentioned in the deed, the defendant, with full knowledge of all the facts aforesaid, and all the circumstances and objects of said division and settlement, agreed with the plaintiff by parol, to buy said plaster mill of him, and gave said note therefor, and thereafter enjoyed it for some years, until it was taken down. The defendant insisted that, upon the facts aforesaid, the plaster mill was a part of the freehold, and, there being no sale of it in writing to the defendant, by the plaintiff, the defendant got nothing, and the plaintiff lost nothing by said verbal sale and relinquishment of the plaintiff. Upon these grounds, the defendant asked the court to rule that the note was without consideration ; the court ruled that the plaintiff had an interest or right in said mill and its materials, which he could sell or relinquish to the defendant, and if he did so, and the defendant, with full knowledge, bought it, and took it and gave his note therefor, the consideration was good, though such sale was by parol. If, however, the defendant did not and could not get anything by the sale, the note would be void. It was also proved that said Josiah was dead.
    The defendant further claimed that said note was void, because, when it was given, he was under an overseer in the second degree, who did not assent to it. To establish this defence, and prove that one Wheeler was such overseer, the defendant read in evidence a certified copy of an instrument in writing, by which it appeared that the selectmen of the town of Oxford, on the 20th day of June, 1842, appointed Robert Wheeler and Nathan J. Wilcoxson overseers of the defendant, for the term of one year from said date. Also, another paper, which was proved to be the original act of two justices of the peace of said town, appointing said Wheeler an overseer of the defendant in the second stage, generally, and without specifying, or limiting the time during which said office was to continue.
    The plaintiff claimed that said supposed appointment of overseer in the second stage was void, because it was unlimited in duration. It was also claimed that both said appointments were void for other reasons, but no opinion being expressed by the court upon such claims, a further statement of the facts is rendered unnecessary.
    The defendant requested the court to instruct the jury, that the note did not draw interest until the death of Josiah Washband. The court, however, instructed them that it drew interest from its date.
    The jury returned a verdict for the plaintiff, and the defendant thereupon moved for a new trial.

      Munson, in support of the motion.
    1. That the plaster mill in question was a fixture, and could not be conveyed by parol agreement, is evident from the declaration which alleges that it consisted in part of “fixtures,” &e., and from the facts proved. The jury therefore should have been so instructed. It was not enough that the owner of the land agreed with the plaintiff, that he might build the mill on his land, and then “ own and use it, as his own.” The question was whether it was annexed to the freehold. 1 Sw. Dig., 534-5. 15 Shep., 545. The question was not whether the defendant “ did, or could,” in point of fact, get any thing from the plaintiff, for he might have done so tortiously. The jury are not supposed to know whether the defendant “ could get any thing legally, by the verbal conveyance.”

      2. The overseership, both in the first and second degree, was fully established. The appointment, offered in evidence, was sufficient to establish both facts. The decree of appointment, in the second degree, finds all the facts essential to its validity, including the fact of the first appointment by the selectmen. The two justices are a quasi court for this purpose, and their decree and record is entitled to as much respect as if it had been made by a single justice or court of probate, or any other court. 1 Greenl. Ev., 547-50.
    3. The certificate of the-appointment, in the first degree, was entirely superfluous, for the fact was established by the decree of the two justices.
    4. The rule, as to interest on the note, was incorrectly given; the principal is only due on and after the death of Josiah Washband, and the interest can only run from the maturity of the note.

      Wooster, contra.
    1. There was a valid consideration for the note, if the plaintiff owned the plaster mill in question.
    That one man may own any article of property, whether a building or other structure, erected on the land of another, by the license and permission of the owner of the land, is well established by repeated decisions in this state and elsewhere. 1 Sw. Dig., 516. Curtiss v. Hoyt, 19 Conn, R., 165. Baldwin v. Breed, 16 Conn. R., 60.
    The mill was personal property, and the only conveyance necessary was liberty to the defendant to take possession.
    2: The statute authorizing the appointment of overseers, is in derogation of common right, and must be construed strictly. Knapp v. Lockwood, 3 Day, 131. Chalker v. Chalker, 1 Conn. R., 79.
    No disability to contract will be presumed; the party claiming such disability must prove every fact material to constitute it.
    3. The appointment of an overseer, in the second stage, by two justices, was void.
    4. If the court erred in its ruling, yet, as the defendant did not suffer from that ruling, and as the case shows there were other fatal difficulties in the defence, a new trial will not be granted. Nicholson v. N. Y. & N. H. R. R., 22 Conn R., 74.
    5. The note itself provided for the payment of interest, conformably to the charge of the court.
   Storrs, J.

1. There is no ground for the claim that there was a want, or failure of consideration, in regard to the note on which this suit was brought. Although the verbal agreement between the plaintiff and his father might have conferred no right on the former, and could not be enforced by him while it remained executory, it is quite clear that he, having built the plaster mill at his own expense in pursuance of that agreement, had, in equity, a perfect title to it, and a right to the use of the land on which it stood, for its enjoyment, which a court of chancery would protect against any claim on the part of the father. The father would no more be allowed to deprive the plaintiff of that mill, or the use of the land, than if he had conveyed them to the plaintiff by deed. The conveyance by the plaintiff to the defendant, of the equitable interest which the former acquired from his father, constituted a valid legal consideration for the note in question. And the unmolested enjoyment by the defendant of the mill, until he demolished it, furnishes a complete answer to the claim that there was a failure of that consideration.

2. The defendant claimed that the note was given, while he was subject to an overseer, appointed in the second stage, and without his consent, and that it was therefore invalid. It appeared that such overseer was appointed for no limited time, but generally, and while the defendant was subject to an overseer appointed for the period of one year, which had not then expired, but which expired before the note was given. Without examining the other objections taken to the appointment of the overseer in the second stage, we are of opinion that it should have been made expressly for the unexpired part of the term, for which the overseer was appointed in the first stage, or that, if not so expressed, but made generally, it continued at most only for the remainder of such term, and therefore that, as that term had expired when the note was executed, the defendant was then under no disability. Although the statute does not, in terms, prescribe a limitation of time in regard to such an appointment in the second stage, as it does where an overseer is appointed in the first, it appears to us to have been no less intended in the former case than in the latter. The appointment of one, as overseer in the second stage, does not abrogate his office under his first appointment, and is rather a continuation of it, with additional powers and duties, than an original, primary, and independent trust conferred upon him. Those new powers and duties are superadded, in order to enable him more effectually to accomplish the purpose for which the statute was designed; and the several consecutive steps, which are prescribed to overseers in both stages, constitute only parts of one entire and connected system of measures, adapted to that object. It is questionable whether it is not by viewing the subject in this light, and giving to the statute a correspondent construction, that a person, who is subject to an overseer in the second stage, has been always held, and we doubt not correctly, to be disabled from making contracts without the consent of such overseer. The reasons why the powers of one of these kinds of overseers should be limited as to the time of their duration, apply equally to those of the other; while the symmetry of the system seems to require that, in this respect, there should be no difference between them. Our opinion on this point is not entertained without some distrust; but if there is a fair doubt respecting it, we should feel bound by the rules of construction applicable to statutes like the one on which this question arises, which disables persons from managing their affairs, to give it a restricted meaning in regard to the extent, as well as the duration, of the powers conferred by it.

3. The jury were properly instructed that the interest on the note in question should be computed from its date. The promise was to pay, on the happening of a particular event, a certain sum with annual interest; showing most clearly; that the interest on that sum was to be paid annually from the time of making the promise. There is no ground for the claim that the intention, apparent on the face of the note, . was, that the interest should accrue, only from the time when the principal was made payable.

We do not advise a new trial.

In this opinion, the other Judges, Ellswokth and Hinman, concurred.

New trial not granted.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    Lyon vs. Ely and others.
    On a motion for a new trial, the supreme court of errors will be confined to the questions made on the trial of the cause in the court below.
    Where it was claimed, on a motion for a new trial, that a deposition, which had been admitted by the court below, should have been rejected, because the notary public, before whom it was taken, had no power to exercise his office in the county within which it was taken, but the admission of such deposition had been objected to, entirely upon other grounds than this; it was held, that it must he assumed that such notary public had authority to act in the county, where the deposition was taken.
    Where a notary public, before whom a deposition was taken, certified that the adverse party, living more than twenty miles from the place of caption, was duly notified, and not present; it was held, that this was sufficient evidence, in the first instance, of the fact of such notice, open however to contradiction.
    Where such evidence was met, on the trial of the cause, by proof that the defendant received no express notice of the taking of the deposition, except a notice that depositions would be taken at a time and place designated for that purpose, and said deposition, as appeared from the certificate of the officer who took the same, was taken at a subsequent day, and another place; it was held, that it should be inferred, from such certificate, that the taking of such deposition was adjourned to the time and place at which it was taken, and was therefore admissible. [One judge dissenting.]
    This was an action of assumpsit on the common counts, tried before the superior court, for Hartford county, at the October term, 1855.
    On the trial, the only claim made by the plaintiff, to recover of the defendants, was for a bill of tobacco claimed by him to have been sold to the defendants. It was admitted that William B., Alfred E. and Henry Ely, were at the time of the supposed sale, and ever since had continued to be partners, doing business in Hartford, under the firm of Ely & Co. It was claimed by the plaintiff that, before said supposed sale and delivery, said Ely & Co., on the one part, and one Preston on the other, had become, and, at the time of such supposed sale and delivery, were partners in purchasing and selling said tobacco, and that said tobacco of the plaintiff was purchased by them, as such partners, and that all the defendants were liable for the payment thereof. Said Elys claimed that Preston alone acted in the purchase of the tobacco, if any such purchase was ever made, and that the plaintiff charged the same to Preston, and to him only, upon his book.
    Said Elys denied that any such partnership ever existed between said firm and Preston, or that they, or either of them, were liable to pay for said tobacco.
    To prove said partnership and the liability of said Elys, the plaintiff offered in evidence a deposition of the said Daniel I-I. Preston, and of the certificates and direction upon the same, which were as follows:
    "STATE OF CALIFORN~A,
    COUNTY OF PLACER,
    TowN OF AUBURN,
    88.
    Personally appeared before me, this twenty-sixth day of March, 1853, Daniel H. Preston, signer of the foregoing deposition, and made solemn oath to the truth of the same, which was taken to be used in the case of Ezra Lyon vs. William B. Ely et al., now pending before the county court within and for Hartford county, Conn., at the request of the plaintiff.
    The reason for taking the same is, that the deponent lives more than twenty miles from the place of trial. The adverse party, living more than twenty miles from the place of caption, was duly notified and not present.
    Taken by and sworn before
    A. BRANKE, .I'Totary Public,
    Placer Co., Cal.
    And as a witness I have hereunto affixed my notarial seal this day and date as above. A. BRANICE, Notary Public.
    EZRA LYON,
    vs.
    WM. B. ELY et al.
    To the honorable county court within and for Hartford county, Conn., the deposition of Daniel H. Preston, to be used in said case. Taken and sealed by
    A. BRANKE, Notary Public,
    Placer Co., Cal.

      To the admission of said deposition against said Elys, as evidence of said supposed copartnership, or their liability to pay for said tobacco, they objected, upon the ground that no notice of the time, or place, for taking the same, had ever been in any wise given to them, or either of them, and that they had never had any notice of such time or place, and also upon the ground that said deposition had been taken in the absence of said Elys, and of any agent or attorney of them. There was no evidence that said Elys, or either of them, had any notice of the time or place1 of taking said deposition, or any opportunity of attending thereto, except that derived from the certificate of the notary by whom said deposition was taken, and from the notice.
    The court found that, on the 25th day of January, 1853, notice was given, in behalf of the plaintiff, to the counsel for the defendants, that the deposition of said Preston would be taken to be used on the trial of said cause, on the tenth day of March, A. D. 1853, at his residence in the city and county of Sacramento, state of California, and that this was the only notice of the taking of said Preston’s deposition ever given to the said Elys, or either of them, of the time, or place, of taking such deposition. Said Elys did not, nor did either of them, either by themselves, or by any agent or attorney, attend, or take any measures to attend, or be present at the time, or place, so designated in said notice for the taking of said deposition. The town of Auburn, at which the deposition, from the certificate of the notary, by whom the same was taken, purports to have been taken, is in the county of Placer in said state of California, and not in the county of Sacramento.
    The court overruled the objection so made to the admission of said deposition, upon the ground that, in support of the magistrate’s certificate, an adjournment of the taking of the deposition, from the time and place mentioned in the notice, to the time and place of the actual taking, might be presumed. The deposition was thereupon received in evidence, and read to the jury, who rendered a verdict in favor of the plaintiff. Said Elys thereupon filed a motion for a new trial, and the case was reserved for the advice of this court.

      Hungerford, Sf Gone, and Hubbard, in support of the motion.
    1. The defendants had no notice of the time, or place of taking the deposition. 2. The deposition being taken at a different time, place and county, from the one mentioned in the notice to their counsel, the court could not lawfully presume, from the certificate of the magistrate, any adjournment of the taking said deposition, from the time and place mentioned in the notice, to the time and place of the actual taking of said deposition. 3. The notary, by whom said deposition was taken, in the county of Placer, had no authority to act as such, in the county of Sacramento ; at least there was no proof that he had any such authority, nor any such legal presumption ; or that he had any power to adjourn s as presumed by the court.

      Welles Sf Strong, against the motion.
    1. The plaintiff has done all the statute requires ; has given the requisite notice to the defendant. The certificate of notice is in the usual form. 2. The defendants neither attended, nor took any measures to attend, or to procure the attendance of any agent, or attorney, at the time and place designated in the notice. They have no cause of complaint that the deposition was taken in their absence. 3. The presumption that there was an adjournment, in support of the magistrate’s certificate of notice, was rightfully adopted by the superior court. Unless an adjournment is presumed, the magistrate’s certificate is false.
   Storrs, J.

The only question in this case respects the admissibility of the deposition, objected to by the defendants on the trial.

It appears that the deposition was taken by a notary public, in the county of Placer, in the state of California; and the defendants have claimed before us that it was inadmissible, on the ground that he had no power, by the laws of that state, to exercise his office in that county. No facts, in regard to the power of that officer under those laws, are presented to us, by the superior court, on this motion. If this point were properly before us, we are not satisfied, by the reference which has been made to those laws, that the notary had not a right to act as such, in that county. But the deposition was objected to, on the trial, upon other grounds, and this question was not there made. It, therefore, cannot be considered by us. By our rules, we confine ourselves, on motions for a new trial, to the questions made below; and one of the principal reasons on. which that rule is founded, viz: that a claim, or objection, if it had been made on the trial, might have been obviated, applies fully to this case. It must, therefore, be assumed that the notary had authority to act where the deposition was taken. The only other question made before us, is, whether it sufficiently appeared that the defendants were notified of the time and place of taking it. The import of the certificate of the notary, although it is elliptically expressed, is, according to the effect which our courts have always given to such certificates, sufficient evidence, in the first instance, of the fact of such notice, open, however, to contradiction. That evidence was met by the defendants, on the trial, by proof that they received no other express'notice than that the deposition would be taken at the place, and time, which was designated in the original notice, for that purpose. It was taken at a subsequent day, and at another place. That proof rebutted the evidence furnished by the certificate, unless it ought to be inferred, from the latter, that the taking of the deposition was adjourned to the time and place at which it was taken; in which case there would be no contrariety between such proof and the certificate. It was clearly competent for the notary to adjourn the taking of the deposition, nor do we perceive any objection to his adjourning it to a different place than that originally designated for that purpose; and if he did so, the defendants, who were a party to the proceeding, and had had notice to be present, would be deemed to be cognizant of such adjournment, and the notary might well certify, as he has done, that they were notified of the time and place at which the deposition was taken. The judge below adopted the inference that there was such an adjournment; and in this was, in our opinion, correct. The defendants were notified of the time and place originally appointed for the taking of the deposition. It was taken at a subsequent time, and at another place, of both of which the notary states, in his certificate, that the defendants were duly notified. On the supposition that he had adjourned the proceeding, that certificate is true; on any other it would be false. Under these circumstances, we think that it was the duty of the judge below to give such a construction to the certificate, if it would fairly admit of it, as to reconcile it with the evidence that had been adduced. Such a construction did no violence to the language of the certificate, but was compatible with it. As it is apparent in this case, from the certificate of the notary, that he was aware of the necessity of a notice to the defendants, of the time and place of taking the deposition, it would be an imputation upon him of gross impropriety, if the construction of his certificate, claimed by the defendants, were to prevail; and we think that it would be unreasonable to give it such a construction. A certificate of this character is not required to be made with all the particularity and technicality of entries of judicial proceedings, and is to receive only a fair and reasonable construction. There is no improbability in supposing, what indeed is not unfrequently the case, that the absence of the witness from the place originally designated for the taking of the deposition, or his residence elsewhere, rendered an adjournment convenient, or necessary. Indeed, from what appeared, we think it was fair to presume that such was the case. If it had appeared that the witness was at Sacramento, at the time originally fixed, the case would be different, and it might be proper to require more explicit proof of an adjournment. But, in the absence of any evidence on the subject, it is much more probable that the plaintiff was mistaken as to the place where the witness then resided, and that the proceeding was adjourned in consequence of it, than that the notary should have abandoned the taking of the deposition under the original notice, and proceeded to take it de novo; especially as it was taken but a very few days after the time first fixed, and there was no opportunity to confer anew with the plaintiff.

We therefore do not advise a new trial.

In this opinion, Hinman, J., concurred. Ellsworth, J., dissented.


text:
    The Hartford and New Haven Railroad Company vs. Jackson and another.
    To constitute a valid contract, the minds of the parties must assent to the same thing, in the same sense.
    The defendants applied to the agent of a railroad corporation, to transport fifty-thousand laths from M. to H. and enquired the expense of transportation. The latter, having asked how many bundles that quantity would make, a companion of the defendants, to whom they referred the enquiry, replied, five hundred, but said agent understood him to say one hundred, and he thereupon gave the defendant the price of transporting one hundred bundles, as the price of transporting the five hundred bundles, which price the defendants agreed to pay. Held, that the misunderstanding of the agent, in regard to the quantity of laths, prevented that meeting of the minds of the parties, which was essential to a contract between them.
    Such corporation having discovered such misunderstanding, and, while they were conscious that the defendants had no knowledge of it, forwarded said laths. Held, in an action brought to recover the price of transportation, at the usual rates, that this circumstance did not preclude the plaintiffs from claiming, on the trial, that such a mistake occurred, but was merely evidence, to be submitted to the jury, of the plaintiffs’ assent to the price, as understood by the defendants.
    Where, on such trial, the defendants claimed that the transmission of the laths by the plaintiffs constituted, in law, an assent by them to the terms of the contract, as understood by the defendants, and that the plaintiffs were therefore precluded from showing that there was any such mistake, and the court instructed the jury in conformity with such request; it was held, that such instruction was erroneous.
    This was an action of assumpsit, brought by the Hartford and New Haven Railroad Company, to recover the price of transporting fifty thousand laths from Middletown to Hartford.
    On the trial before the county court, at the term holden in November, 1854, it was proved that the defendants applied to the agent of the plaintiffs, at Middletown, to transport from Middletown to Hartford a quantity of laths, and that the defendants asked the agent what would be the freight upon them, upon which that agent asked the defendants what quantity they wished to send. They replied 50,000. He then asked how many bundles that would make. They turned to a companion who was with them, and asked him how many bundles that would make, to which he replied it would be 500 bundles, but the agent understood him to say, one hundred bundles, and gave them accordingly the price of transportation of one hundred bundles. The defendants agreed to pay the price named, and soon after left. During the conversation, they stated to the agent that they wished them sent on immediately, and the agent agreed to send them that day, as far as Berlin, and the next day from Berlin to Hartford.
    After the defendants had left the depot, the agent, for the first time, discovered, by the large quantity of laths that arrived, that there was some mistake, between him and the defendants, as to the quantity to be sent, and immediately sent word to the defendants by the teamster, who was carting the laths to the station, to come and see him at once, about it, and that there had been a mistake between them. This message never reached the defendants, as they had left Middletown for Hartford, where they resided, before the teamster got back from the station, and on his return he so informed the agent. The agent, feeling bound by his promise to send the lath's that day, made no further effort to communicate with the defendants on the subject, but forwarded the whole quantity of laths, by the next freight train, on the same day to Hartford. The plaintiffs claimed that, in consequence of the entire misunderstanding of the parties, as to the quantity of laths to be transported, there was no contract with regard to the price, but that the plaintiffs were entitled to recover the usual rates of such transportation, without reference to any understanding of either party, which it was admitted was $15, and that, under the circumstances, the sending on of the laths, after the discovery of the error by the plaintiffs, was not an assent to the terms, as understood by the defendants, but was an act of duty, and that forwarding the laths was at most only evidence to be’considered by the jury, in connection with all the circumstances of the case, and was not decisive of the question of the plaintiffs having assented thereby to the defendants’ terms. The defendants claimed that, by sending on said laths, after discovering the mistake of the parties as to the quantity and price, and while conscious that the defendants had no knowledge of any such mistake, the plaintiffs were to be held as having assented to the price, as understood to have been agreed on by the defendants, and that they were thereby cut off from all right to claim more than said price, or to claim that there was any misunderstanding between the parties.
    The parties severally requested the court to charge the jury in accordance with their respective claims. The court did not charge the jury in accordance with the claims of the plaintiffs, but directed the jury upon the point in question as follows: The law undoubtedly is, that where there is an unexecuted contract, and a mistake has occurred between the parties, as to some of the terms of the contract, and a party goes on and does what he has agreed to do, after he has discovered the error, he thereby assents to the terms, as understood by the other party. If the plaintiffs, after they discovered the error, went on and performed the contract, they are bound to the terms as understood by the other party. If they sent on the laths, after they discovered the error, they have no claim on the defendants, unless on the score of charity to help them bear the loss. Under this direction, the jury returned a verdict for the defendants.
    The plaintiffs thereupon filed a bill of exceptions, and by motion in error, brought the case before this court.

      Hooker and Hawley, for the plaintiffs.

      Robinson, for the defendants.
   Storrs, J.

The misunderstanding, by the plaintiffs, of the offer which was made by the defendants, in regard to the quantity of laths, which the latter proposed to have transported, and which was in form assented to by the former, prevented that meeting of the minds of the parties, that aggregatio mentium, which was essential, in order to constitute a contract between them; and such assent no more bound the plaintiffs, than if the offer had been made by the defendants, in a language which the plaintiffs did not understand, through an interpreter, who had falsely translated its terms. In order to constitute a contract, it is necessary that the parties should assent to it, and, as is well expressed by Mr. Parsons, in his treatise on contracts, p. 399 ; “they must assent to the same thing in the same sense.” ^The proposition of ^ one party must be met by an acceptance of the other, which 1 corresponds-with it,)which cannot be the case when the pro- 1 position is misunderstood by the party to whom it is made. On this point, there does not appear to have been any controversy on the trial. But the defendants claimed that the-act of transporting the laths by the plaintiffs, after they discovered the mistake that had occurred in making the contract, and while they were conscious that the defendants had no knowledge of the mistake, constituted, in law, or was conclusive evidence of, an assent by the plaintiffs to the terms of the contract, as understood by the defendants to have been agreed to, and that the plaintiffs were therefore precluded from setting up that there was any such mistake. The plaintiffs insisted that the forwarding of the laths neither constituted, as matter of law, nor was conclusive evidence of, such an assent, but that it was, in connection with all its-circumstances, only evidence to be submitted to, and considered by, the jury, on the question whether the plaintiffs assented to the defendants’ terms. The court below charged the jury in conformity with the claim of the defendants. In this we think there was error. If, for the present purpose, we concede, as the parties appear to have done on the trial, that there would be no legal objection to the consummation of the contract by the plaintiffs, by an assent, on their part, to the terms offered by the defendants, given after the parties had terminated their negotiation respecting it, and finally separated, without any further treaty on the subject, we are of opinion that, whether there was such an assent, was from its nature, in this case, a question of fact merely, to be determined by the jury, on all the evidence before them. An assent to an offer, which is requisite to the formation of an agreement, is an act of the mind; and is either express, or evidenced by circumstances, from which such assent may be inferred. In the present case, it was neither proved, nor claimed, that there was any express assent; but certain facts, including the forwarding of the property by the plaintiffs, and the circumstances attending such forwarding, were proved, from which it was proper to reason that an assent was given to the defendants’ offer by the plaintiffs; and such reason was to be submitted to the jury, whose province it was to determine their weight. These facts and circumstances, however, were not, as evidence, entitled to any specific, or artificial effect; they were to be considered simply with reference to their natural weight, like ordinary circumstantial testimony. We are aware of no rule of evidence, or principle of policy or justice, which gives them any greater force. The fact that the plaintiffs forwarded the property, if unexplained, would certainly, as evidence, be a strong one on the question of assent; but to hold it to be conclusive on that point might produce great injustice, since it was obviously one which, from its nature, was susceptible of an explanation, which would clearly repel the claim that it was intended to evince such assent. As the judgment complained of must be reversed for the error in the charge below on this point, it is unnecessary to consider any of the other errors assigned.

The superior court is advised that there is error in the judgment complained of.

In this opinion, the other Judges, Ellsworth and Hinman, concurred.


author: Ellsworth, J.

text:
    The State vs. Nathan F. Miller.
    The words, •' against the peace,” are not essential to the validity of a complaint for a violation of the statute passed in 1854, entitled “ an act for the suppression of intemperance.”
    This was a complaint, preferred by three residents of the town of Bloomfield against Nathan F. Miller, to a justice of the peace, for a violation of the act of 1854, for the suppression of intemperance. The complaint embraced several counts substantially alike in form, but alleging the sale of intoxicating liquors on different days.
    The first count stated that the defendant, “ on or about the first day of September, 1854, at said Bloomfield, did sell intoxicating liquor to Porter Whiton of said Bloomfield, contrary to the statute in such case made and provided.” But the complaint contained no averment that the acts charged were “ against the peace.”
    The defendant was found guilty, by the justice, upon each of said counts, and sentenced to pay a fine of one hundred and fifty dollars and costs. The defendant having appealed the cause to the county court, at the term holden in November, 1854, it was then tried, but the jury were unable to agree upon a verdict. The cause by continuance then came to the term of the superior court, holden in October, 1855, when the defendant demurred to the complaint, and the case was thereupon reserved for the advice of this court.

      Hubbard in support of the demurrer.
    The averment, that the acts charged were against the peace, is essential, and has been so held every where, and at all times. 2 Hale P. C., 188. 1 Chit. Cr. L., 246. 10 E. C. L. R., 167. Stark. Cr. PL, 232. Arch. Cr. PL, 68. Gabbetts Cr. Law, 243. 2 Sw. Dig., 382. Barbour Cr. Law, 335.

      Nearly all the states of the union have provided for this averment, by constitutional enactment. Whart. Cr. Law, 109.
    These provisions are declaratory of the law. Anderson v. the State, 5 Pike, 445.

      Hooker and Cornwall against the demurrer.
    The averment, “against the peace,” is not necessary to the validity of an indictment.
    1. It has never been so decided in this state.
    2. Our practice, both civil and criminal, is very simple. There is no state where unnecessary technicalities are more discountenanced. (See authorities infra.)
    3. The averment, as ordinarily used by us, has lost all its meaning. The ancient form was “ against the peace of our lord the king,” or “ of the late king,” and in other states it is generally “ against the peace of the commonwealth,” or “ peace and dignity of the commonwealth.” We have cut it down to “ against the peace,” not the peace of the state, nor the public peace, but simply, the peace. It has thus become the barest and most unmeaning technicality.
    4. The averment is legally contained in the expression, “ against the statute,” &c., since, if it is against the statute, it is necessarily against the public peace; and the law will infer this.
    5. The whole current of decisions and of legislation is against technicalities in declarations and indictments, and in favor of the only sensible rule that nothing need be averred but what must be proved. 2 Green’s (Iowa) R., 289-291. Wheaton Cr. Law, 149.
    A recent English statute (7 Geo. 4,) provides that no indictment &c. shall be invalid, on account of the omission of, (among many other technical expressions,) the words “ against the peace.”
    The Massachusetts statute does the same, including this very term, and the words “ contrary to the statute,” &c.
    A New York statute provides that no indictment shall be held invalid, by reason of any defect or imperfection in matters of form, -which shall not tend to the prejudice of the defendant. We ought not now to establish, for the first time, the necessity of a technicality which other states are discarding.
    That this technicality is utterly unnecessary for any purpose of justice, is made evident by these enactments.
    II. But if such averment be necessary in an indictment, it is not in a complaint, and especially in a complaint for a statutory offence. Rawson v. State, 19 Conn. R., 296. 2 Mason, 148. 1 Burr., 400.
    III. If necessary in complaints generally, yet it clearly is not necessary in complaints under the law for the suppression of intemperance.
    This law impliedly, and to some extent expressly, provides against the necessity of technicalities, in proceedings under it. It -was intended to avoid all technical embarrassments in the execution, and to make proceedings under it simple, plain and easy.
   Ellsworth, J.

We are of opinion, that this information is sufficient, and the demurrer must be overruled. Since the cases of Goddard v. The State, 12 Conn. R., 448, Barth v. The State, 18 Conn. R., 432, Whiting v. The State, 14 Conn. R., 488, Rawson v. The State, 19 Conn. R., 292, and Barnes v. The State, 20 Conn. R., 232, we cannot think that the words contra pacem are necessary in a grand juror’s complaint for a misdemeanor, especially for the violation of a statute, which, in its twenty-fourth section, has declared that such technicality shall not be necessary. If such an omission would ever have been fatal at the common law, it would not be so at this time, for in England, as well as in New York and Massachusetts, if not in other states, such technicality was found so unmeaning and useless, that statutes have been passed to do it all away. This whole subject has been so fully and so ably discussed by the late chief justice Church, in Rawson v. The State, 19 Conn. R., 292, that we need only refer to that case, for the reasons why we have come to the conclusion already stated.

We advise that the demurrer be overruled.

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

Demurrer overruled.


text:
    The State vs. John Miller.
    In an information for a violation of the statute entitled “an act for the suppression of intemperance,” (Rev. Stat. tit. 54, ch. 2, p. 817) which alleges the sale of “spirituous and intoxicating liquors,” no other description of the kind or quantity of liquor, alleged to have been sold, is necessary.
    In an information for a statutory offence, an exception, in a proviso following words of general prohibition, need not be negatived.
    And it is immaterial whether such exception is embraced in the enacting, or in a subsequent, clause of the statute.
    Where the clause of a statute, which describes and prohibits an offence, contains no words of general prohibition, such circumstances as are necessary to show that the prohibited offence has been committed, must be alleged in the information.
    Duplicity in an information is cured, by a verdict of guilty on one of the offences charged, and not guilty on the other.
    Where an information, on the statute aforesaid, alleged that the defendant sold spirituous and intoxicating liquors to a particular person, at a specified time and place, and proceeded to allege* a sale to the same person, at the same place, on a different, and subsequent day, without inserting the word “ other,” or “further,” before the description of the second offence, and the prosecutor having introduced evidence to prove a sale of intoxicating liquor, by the defendant, on a particular day, offered evidence of another and different sale on a subsequent day, to which the defendant objected, on the ground that the information contained but a single count, and charged but one offence, it was held that such evidence was admissible.
    This was a complaint, preferred by a grand juror of the town of Enfield, to a justice of the peace, for a violation of the statute, entitled an “ act for the suppression of intemperance.” The complaint was as follows:
    “ On the 26th day of October, A. JD., 1855, at said Enfield, John Miller, now of said Enfield, with force and arms, did sell spirituous and intoxicating liquors to Chauncey Baker of said Enfield, against the peace, and contrary to the statute in such case made and provided.
    “ And said grand juror, on oath, further complains and • informs that, at said Enfield, said John Miller now of said Enfield, on the twenty-seventh day of October, A. D., 1855, with force and arms, did sell spirituous and intoxicating liquors to Chauncey Baker of said Enfield, against the peace, and contrary to the statute in such case made and provided, and of evil example.”
    The defendant, upon this complaint, being found guilty, appealed to the superior court for the county of Hartford, where it was tried, at the term holden in December, 1855.
    Upon the trial, the state first offered one Baker, as a witness, to prove a sale to himself, by the accused, of intoxicating liquor, on some day during the month of September, or October, A. D. 1855 : and after such testimony of said Baker had been heard, the state offered to prove by said Baker, and by other witnesses, another and a different sale on a different and previous day, claiming that the information charged two sales upon said accused, in two different counts. To this evidence, the counsel for the defence objected, on the ground that said information contained but a single count, and at least, charged but one offence, and after evidence on the part of the state of one sale, it was not competent to offer evidence of another sale.

      The jury rendered a verdict of guilty, and the defendant then moved for an arrest of judgment, on the ground of the insufficiency of the information. He also moved for a new trial.

      Robinson and Briscoe, in support of the motion.
    1. It is a right of the accused to be fairly apprized of the specific charge made against him. 35 Maine, 489. Whart. Am. Cr. L., 173 el seq. It is not enough to adopt the language of a statute, in describing an offence, when very general terms are employed for that purpose. Commonwealth v. Bolkom, 3 Pick., 281. State v. Miles, 4 Port., 577. State v. Lookstand, 4 Port., 572. State v. Brutton, 4 Port., 601.
    The act in question was not designed to vary the common law rules of criminal pleading, but on the contrary, requires a description of “ the kind and quantity of liquor sold or manufactured.” Rev. Stat. p. 831, § 24.
    It shall not be necessary, says the statute, “ to set forth exactly the kind or quantity, or the exact time of selling;” language unavoidably implying, that some kind, some quantity, and some time must be alleged, according to the known requirements of the common law. The defect is not aided by any averment that a further description of the liquor was unknown to the prosecutor. Whart. Am. Cr. Law. 171.
    2. The information is insufficient, inasmuch as it does not negative the exception, contained in the enacting and descriptive clause of the statute. It does not appear that the alleged sales were not'lawful sales. The defect is fatal. Archbold, Cr. Pl. p. 48. Blasdell v. Hewitt, 3 Caines’ Cas. in Error, 137. State v. Keen, 34 Maine R., 500. State v. Barker, 18 Verm., 195. State v. Somers, 3 Verm., 156. Thibault v. Gibson, 12 Mees. & Welsby, 88. Rawlings v. State, 2 Maryl. R., 201. Missouri v. Buford, 10 Mo. R., 703. Brutton v. State, 4 Porter (Ind.) 601. Commonwealth v. Maxwell, 2 Pick. R., 138.
    The fact, that reference is made to subsequent sections, for the details of the exception, ought not to vary the rule. The exception is still inseparably connected with the enacting clause. State v. Palmer, 18 Verm., 570.
    3. The information is bad for duplicity. The two counts appear to be for the same charge. The sale of the same thing to the same person is alleged in each. The use of the word, “ other,” was technically necessary to distinguish the offences, if more than one was intended by the pleader. Hart v. Langfitt, 2 Ld. Raym., 841. The allegation of different days does not separate the charges; the proof of the precise time of an offence being utterly immaterial and no postea being averred in the second count. While the two counts, on their face, necessarily refer to the same offence, the pbjection is fatal, not only on demurrer, but after verdict.
    II. The court erred in receiving evidence of more than one offence. Whether the objection for' duplicity be too late or not, the information did not fairly apprize the defendant of more than one charge, and no evidence should have been heard relative to the second count. It should have been rejected as surplusage.

      Cornwall, (state attorney,) against the motion.
    . 1. The strictness, anciently required in indictments, in-formations and complaints, has in modern times, both in England and in this country, been relaxed. 2 Mason., 144. Whiting v. The State, 14 Conn. R., 490. Rawson v. The State, 19 Conn. R., 295-6. Goddard v. The State, 12 Conn. R., 448.
    The complaint is as particular, as the statute that creates the offence charged.
    It is not necessary to state, in the complaint, the kind, quantity, and price of the liquor sold, none being essential to constitute the offence. It is sufficient to describe the offence in the words of the statute. Statutes 831. Whiting v. The State, 14 Conn. R., 487. Barth v. The State, 18 Conn. R., 432. Rawson v. The State, 19 Conn. R., 292. Commonwealth v. Odlin, 23 Pick., 275-9. Commonwealth v. Thurlow, 24 Pick., 374. Commonwealth v. Clapp, 5 Pick., 41. Commonwealth v. Hooper, 5 Pick., 42. People v. Adams, 17 Wend., 475. The State v. Fox, 1 Har., 152. The State v. Hickman, 3 Hals., 299. The State v. Little, 1 Verm., 331. The State v. Click, 2 Ala., 26. State v. Bullard, 13 Ala., 413. Buckley v. State, 2 Green., 270.
    2. It is no objection to this complaint, that the grand juror did not allege that the liquors, sold by the defendant, were not imported liquors, sold in the original package, or that the defendant did not sell, as agent of the town.
    There are no provisos, or exceptions, in the eighth section of the law upon which the complaints are brought.
    If provisos, or exceptions are contained in distinct clauses of the law, it is not necessary to state in the complaint, or information, that the defendant does not come within the exception, or to negative the provisos it contains.
    3. Where the exception is stated in the enacting clause of the statute, it must be negatived in the information. But where it is in a subsequent, or different clause of the statute, it is mere matter of defence, and not necessary to be negatived. 7 Black., 590. 3 Bac. Ab., 570. 6 B. & C., 430. 1 B. & A., 94. Commonwealth v. Maxwell, 2 Pick., 139. 4 Johns., 304. Worley v. The State, 11 Humph., 172. The State v. Adams, 6 N. H., 533. The State v. Gurney, 37 Maine, 149.
    The words in the complaint, which are the words of the statute, (viz.) “ in violation of the act &c.” negative all the exceptions, and provisos contained in the act.
   Ellsworth, J.

It is objected to this complaint, that it does not state, with particularity, the quantity and kind of spirituous liquors which were sold by the defendant. Whatever force there might have been in this objection, upon the principles of the common law, in relation to felonies and crime, of a high order, there can be none in this state, since the cases of Whiting v. The State, 14 Conn. R., 490, Bronson v. The State, 19 Conn. R., 295, Goddard v. The State, 12 Conn. R., 448, 2 Mass., 144. Besides, we think the statute on which this prosecution is founded, § 24, cures the defect, if indeed there be one at the common law.

The more serious objection to the complaint is, that it does not negative an exception, said to be contained in the enacting clause. The language of the statute,p. 817, § 1, is as follows: “ no person shall manufacture, or sell, by himself, his servant or agent, directly or indirectly, any spirituous or intoxicating liquor, or any mixed liquor, of which a part is spirituous or intoxicating, except as is hereinafter provided.”

Then follow, in the succeeding sections, the exceptions, with certain restrictions and regulations. Now the claim is, that, by the reference in the first section, the subsequent exceptions are incorporated into the first section, and become a part of it, as effectually as if they were recited verbatim, and that they must therefore be negatived, according to the well settled rule of declaring, that an exception, contained in the enacting clause of the statute, must be negatived by the prosecutor or pleader. As to this general rule of law, we believe there is no doubt; but in the application of it, and especially in the language that has been used, quite loose and unguarded as we think, there is great confusion and apparent inaccuracy, even by those who understood the raleas we do. The rule, as everywhere laid down is, that, after words of general prohibition, whatever comes in by way of proviso, or exception, need not be negatived by the pleader, but must be set up by the accused. In this view, it is immaterial whether the proviso, or exception, be contained in the enacting or subsequent sections, if it only follow a general prohibition ; but if there be no general words of prohibition, in the description of the offence, i. e. the clause which describes, and forbids the act intended to be prohibited, then it is only a limited prohibition, and the prosecutor must allege, in the complaint, the circumstances necessary to show that the thing prohibited has been done. As, for example, this statute declares that no person shall manufacture or sell &c.—a general prohibition ; all persons are prohibited, but if it had declared that no person under the age of twenty-one, or no colored man should, &c., then there is no prohibition, unless it is alleged that the person accused was under twenty-one, or a person of color. The distinction may not be a very important one, in an abstract point of view, but it is a rule of pleading as well settled as any other and acknowledged to be the law everywhere, and we shall not undertake to alter, or overrule it,—nor is it necessary for the defence of the accused, as he can avail himself of the exception, or proviso, upon the trial, wherever it maybe located in the enactment. In Hart. v. Cleis, 8 John., 41, the prisoner was complained of, for violating a statute of the state, which, in its sixth section, declared, that if any person shall export, or attempt to export, any slave, or any servant born of a slave, and made free by virtue of the act, to any place without the state, except as is hereinafter provided &c., he shall pay” &c.—and the next section provides that persons travelling, or removing, from the state may take their slaves &c. The objection to the declaration was, that it is not alleged that Baker, (the slave,) was not liable to be exported out of the state. The declaration however was held good; the court say that the exception forms no part of the plaintiff’s title, or right of action, but is merely matter of excuse for the accused. The excepted cases are not incorporated into the body and substance of the enacting clause, but are given as exceptions, and the instances are not specified in that, but in the subsequent section. The same was decided in 3 John., 438, and 4 John., 304; in the last case, Van Ness, J., delivering the opinion of the court, cites with approbation the rule, as laid down by Treby, C. J., with the concurrence of the rest of the court; 1 Lord Ray, 119, “ that where an exception is incorporated into the body of the clause, he, who pleads the clause, ought to plead the exception, but where there is a clause for the benefit of the pleader, (the prosecutor,) and afterward follows a proviso, which is against him, and for the benefit of the accused, he shall plead the clause and leave it to the accused to show the proviso. The same distinction was adopted in King v. Bryan, 2 Str. 1101, and in Spieres v. Parker, 1 T. R., 141. It is of no importance in what section the proviso is placed. By “ clause” in these cases, I understand, the words of prohibition ; that sentence of the section, which at first describes and prohibits the general offence, though it is followed by exceptions, as in the statute in question. All are here forbidden to sell, which language describes the offence, and contains the universal prohibition ; this is enough for the prosecutor. In Rex v. Pemberton, 2 Burr., 1036, the court say, “ it is enough for the prosecutor to bring the case within the general provision of the statute upon which the indictment is founded, if the statute has general prohibitory words in it, and they refer to remarks by Foster. J., Wilm'ot, J., and Dennison, J., that even if there be a clause of exception contained in the same statute which excuses persons under such and such circumstances, or gives license to persons so and so qualified, so as to excuse, or except them out of the general prohibitory words, it must come by way of plea, or evidence. In Com. Dig., (indictment G. 5,) the rule is laid down thus; “ where an indictment is brought on a statute which has general prohibitory words, it is sufficient to charge the of-fence generally in the words of it, and if a subsequent statute, or even a clause of exception in the same statute excuse, or except, persons particularly circumstanced, out of the general words, such excuse, or exception, must come by way of plea, or evidence. In Bac. Ab. (indictment H. 4,) the rule is laid down thus ; “ there is no need to allege in an indictment on a statute, that the defendant is not within any of the provisos, notwithstanding the purview expressly takes notice of them, in such special cases, as are expressed in the act.” The same rule of declaring is laid down in 1 Ch. C. L., 190. 2 Hawk. P. C. Wheat. Dig., Hills case, 5 Gratt., 690. 27 Maine R., 154, and in Popham, which contains an early and excellent case.

It is further claimed that the complaint is bad for duplicity. Without expressing any opinion whether there be ground for this objection, we are satisfied the objection comes too late, after verdict. In Arch. C. Law, 53, it is laid down that in civil actions, the usual mode of objecting to pleadings for duplicity is, by special demurrer. Tt is cured by general demurrer, or by the defendants pleading over. In criminal cases, the defendant may object to it, by special demurrer ; perhaps also upon general demurrer; or the court in general, upon application, will quash the indictment. But it is extremely doubtful, whether it can be made the subject of a motion in arrest of judgment, or of a writ of error, and it is cured by verdict of guilty as to one of the offences, and not guilty as to the other, and the present case is that precisely. On this point, I refer to 1 Chit. C. L. 204, and to Lazier’s case, 10 Gratt. R., 708, which was a prosecution for murder, with two counts, apparently for the same murder, varying in no essential particular. It was claimed thatthere was duplicity, but the court held otherwise ; they say “ it is usual to obviate this technical objection of duplicity by inserting in the counts after the first, the word further, before the subject of the offence, but it is not inserted in all cases, and its insertion is in no case indispensably necessary. It is not usual to insert it in indictments for murder, but the party murdered is described in all the counts as the same person, and the instrument of death is not always stated in the different counts to be a different instrument. The indictment, in this case, conforms to precedents, furnished by approved writers on criminal law.”

We do not think there is any force in the objection that evidence of more than one offence was received on the trial. The evidence offered, and received, was pertinent to the issue, and was not therefore objectionable. The motion in arrest is not to be allowed, and no new trial is to be granted.

In this opinion, the other Judges, Storrs & Hinman, concurred.

New trial not to be granted.


author: Stokrs, J.

text:
    Johnson and another vs. Ransom.
    It is an ancient and well established principle, that a writ is divisible, which is brought for a cause of action that is divisible, and may be abated in part, and remain good for the residue.
    The principle, that if only a part of the persons, who are jointly liable to the plaintiff, are sued, and it does not appear upon the face of the declaration that others so liable, and living, are omitted, those who are sued can take advantage of the non-joinder only by plea in abatement, is not limited to cases, where the objection that there is such non-joinder applies and is taken to the whole of a count to which it is pleaded.
    In the action of book-debt, where all the persons who are jointly liable for the plaintiff’s demand are not made defendants, the same rules are applicable which prevail in all other actions founded on simple contract.
    Where the plaintiff, in an action of book-debt, exhibits on oyer a bill of particulars, embracing items chargeable to the defendant and another, he may recover for such items, unless the defendant pleads in abatement the nonjoinder of the party so liable.
    This was an action of book-debt, brought by Johnson and Parsons against Henry C. Ransom, to the term of the city court of the city of Hartford, holden in September, 1854. By the rules of said court, pleas in abatement are required to be filed on or before the opening of the court, on the second day of the first term after the action is brought. No bill of particulars was rendered, nor was oyer of the plaintiffs’ account furnished, until the term of said court, succeeding that to which said action was brought, when the plaintiffs on oyer rendered their account, consisting of ten separate items.
    At the term of said court, holden in December, 1854, said cause was tried, by the court, upon the plea of the general issue.
    Upon the trial, the defendant proved that the ninth and tenth items in said account were for a model for a pump, furnished by a special contract in writing made by the plaintiffs, with the defendant, which contract had never been complied with, and which model never had been delivered to the defendant. The first, fourth, fifth, seventh, and eighth items, the defendant offered to prove, and did prove, were for services rendered, and materials furnished, to one Henry Johnson, and :for which, the defendant was not chargeable, or responsible. The second, third and sixth items, the defendant offered evidence to prove were for services rendered to a copartnership, consisting of Waldo M. Johnson, and the defendant, under the firm of Johnson and Ransom, and not to the defendant individually, and for which he was not individually chargeable; said evidence was not objected to, and was received by the court.
    The plaintiffs’ counsel, in the argument of said cause, claimed that if the court should be of opinion that they were not entitled to recover for their whole claim, yet that they were entitled to recover for so much of the same as had been proved to be chargeable to said Johnson & Ransom, and that the defendant could not take advantage of the nonjoinder of W. M. Johnson, under the general issue, or in any other way, except by a plea in abatement, and prayed the court so to decide.
    • The court rendered judgment for the defendant. The plaintiffs thereupon filed a bill of exceptions, and by motion in error, brought the record before this court for revision.

      Goodman for the plaintiffs.
    If the defendant had pleaded in abatement the non-joinder of any other party, the plaintiff might, by our statute, have amended his writ, by inserting the name of that party; but by pleading the general issue, he waived that objection. The non-joinder of a party defendant can be taken advantage of, only by plea in abatement. Gould PL, 278. 1 Chit. Pl., 29. 1 Saund., 284. Hine v. Houston, 2 Green., 161. Henderson v. Hammond, 19 Ala., 340. Grove v. Lawrence, 4 Fost., 128, Converse v. Symmes, 10 Mass., 379. Robertson v. Smith, 18 Johns., 459. Barstow and al. v. Fossett, 11 Mass., 250. Wilson v. Nevers, 20 Pick., 20. Blin v. Pierce, 20 Vt., 28. Holmes v. Marden, 12 Pick., 169.

      Welch and Shipman for the defendant.
    I. The technical rules, as to pleas in abatement, are not necessarily applicable to the action of book-debt, because this action is, in its nature, totally diverse from those common law actions, in which these rules have their origin, and to which they relate. The action of book-debt groups together, in our court, several and diverse causes of action. The. rule de non-joinder has reference to those forms of actions, in which each cause of action is set forth in a separate count. 1 Saund. PL, 10. Gould PL, Ch. 5, § 14.
    II. The writ, in this case, consists of but a single count, declaring for a general balance of accounts, and the major part of the balance claimed is confessedly due, only from the defendant. Advantage of the non-joinder could not be taken in this case, by plea in abatement; because, 1. Such a plea would not be an answer to the entire count, and would therefore be unavailing. Henries v. Jamieson, 5 T. R., 557. To make the plea an answer to the entire count, it would have to embrace both matter in abatement, and matter in bar. Steph. on PL, 257, 5 Com. Dig., 386. 2. It would be impossible, upon the rules of pleading, to frame a plea in abatement, which would reach the difficulty in this case. 3. If it were possible to frame a plea to meet the case, no judgment could be rendered upon it in favor of the defendant. The only judgment which a court can render for the defendant, upon a plea in abatement is, that the writ, or the count abate. Bac. Ab. Abatement M. Gould PL, Ch. 5, § 159. Such a judgment, in this case, would have been not only improper, but a manifest and gross hardship, and injustice to the plaintiffs. 4. As to the real gist of the action, set forth in this single count, the plaintiffs could not have a better writ, which they must have had before they could have judgment in their favor, upon a plea in abatement. Steph. on PL, 431.
    III. It follows, therefore, that the claim of the plaintiffs is not well founded, unless a bill of particulars is to be considered as an addition of counts to the writs, which cannot be true.
    IV. The reason of the rule de non-joinder does not apply to cases like the present- Cesscmte ratione, et lex ipse cessat. We could not plead in abatement in this case, because the time of such pleading had passed before such abateable matter was disclosed, and therefore it could be taken advantage of, on the trial. 2 Wash. C. C. R., 112.
    V. The consequences of the rule claimed would be endless confusion and perplexity.
   Stokrs, J.

As our action of book-debt is only an action of debt brought for the recovery of a particular kind of indebtedness, we are of the opinion that, in respect to it, the same principles are applicable, which prevail in all other actions founded on simple contract, where all the persons who are jointly liable to the plaintiff’s demands are not made defendants; and that, according to those principles, the city court, in the case before us, ought to have rendered judgment in favor of the plaintiffs below, for the amount of the debt, which was proved to be due to him from the defendant, and Waldo M. Johnson.

It is a well settled rule,, in actions ex contractu, that, although all the persons, who are jointly liable to the plaintiff, ought to be named as defendants, if some of them only are sued, and it does not appear upon the face of the declaration that others, so liable, and living, are omitted, those who are sued must plead the non-joinder in abatement, and cannot take advantage of it in any other way. 1 Saund., 291, b. c. id. 154, n. 1. 2 Saund., 210. 5 Burr., 2611.

There'is no ground for the claim of the defendant that this rule is limited to cases, where the objection that there is such a non-joinder applies, and is taken to the whole of a count, to which it is pleaded. It is frequently the case that a single count embraces several causes of action ; as, for instance, in debt on simple contract, and indebitatus assumpsit, in which it is well settled that the count may combine several distinct causes of action, for which a count of that nature is appropriate, and that a plaintiff, under it, may recover all such demands, however numerous, as fall within the range of that count and to whichitis applicable; (per Bailey J. Richards and al. v. Heather, 1 Barn, and Ald.,34,) and in such cases the principle is applicable to any particular part of such a count to which the objection exists, that there is an omission to join as co-defendants all those who are jointly liable to the plaintiff. This results from the ancient and well established principle, that a writ is divisible, which is brought for a cause of action that is divisible, and may be abated in part, and remain good for the residue. (See Arch. pi. and ev., 306. 2 Saund. 210 a. n. Chit. PI., 8 Am. ed., 458.) Hence a plea, though it must not contain several answers to the whole of the declaration, may, nevertheless, make distinct answers, whether it be a plea in abatement, or in bar, to such parts of it as relate to different matters of claim or complaint. (Steph. on PL, 297.) The defendant may plead to one count and demur to another, or plead in abatement to part of the declaration and plead in bar to the residue. He may, likewise, to several counts, or to distinct parts of the same count, plead several pleas, viz.: one to each. (Steph. on PL, 319.) In 1 Went. PL, 47, is a precedent, drawn by one of the most eminent special pleaders of his day, of a plea in abatement to part of a count in assumpsit, that the promise, as to a specified portion of the money demanded in that count, was made by the defendant jointly with another person, not named as defendant.

There is, therefore, no technical difficulty in these cases, which prevents the defendant, by a plea in abatement, from protecting himself against a recovery for a part of the plaintiff’s claim, which is due from the defendant and another person. And if he is subjected to any inconvenience by being obliged to meet it on the general issue, it is voluntarily brought upon himself by omitting to object to the non-joinder of said person by the appropriate plea. To the argument that the defendant might be surprised on the trial by a claim, made against himself and another, it is a sufficient answer that it is in his power to prevent such surprise, by requiring a bill of particulars of the plaintiff’s claim, which the court will order, where it is not sufficiently disclosed in the declaration, and which would enable the defendant to interpose the proper plea in abatement, as to any part of it on which he is not solely liable to the plaintiff. In the present case, such a bill of particulars was in fact given.

The authorities are decisive to show that it was not only competent, but necessary, for the defendant to have pleaded such non-joinder in abatement.

The case of Holmes v. Marden, 12 Pick. R., 169, is directly in point; and the principle decided in it, was also involved and recognized in Richards and al. v. Heather, 1 Barn, and Aid., 29.

In Hill v. White and al., 6 Bing. N. C., 26, where the defendants pleaded in abatement to a whole count in assumpsit for work and labor, that the promises were made by them jointly with others, and it appeared that part of the services were rendered to the defendants, and another part to the defendants jointly with others, it was held that the plea was not supported, on the ground that the defendants should not have pleaded in abatement to the whole of the plaintiff’s demand, but only to that part of it, on- which they were jointly liable with others. Tindal, C. J., says: “ It is clear that, where there are several counts, the plaintiff may recover as to one only; and there is no reason why, on the same principle, the demand in a single count should not be esteemed divisible; in other words, why the defendant should not plead that the action is brought in part for a contract on which he is jointly liable with others, and in part for one as to which he is singly concerned.”

In Branch v. Doane, 17 Conn. R., 402, we had occasion to determine a question which is analogous to the one now before us and involved the same principle. We there held that if the cause of action is divisible, and the plaintiff could not sue alone for a part, the defendant might successfully plead in abatement to such part, and the action would proceed as to the residue; and that where the declaration, in an action on the ease, alleged an injury to the plaintiff’s mill, by the wrongful acts of the defendant during a period of six years, and at the trial on the general issue it appeared that, during a part of that period, the plaintiff occupied the mill jointly with another person, the plaintiff was not precluded from recovering his proportion of the damages for the injury, which accrued during such joint occupation, and that, in order to prevent such recovery-, the defendant should have pleaded in abatement, as to that period, the non-joinder of such other person, as plaintiff. We would refer to the reasoning of the court in that case, as being applicable to the present.

We therefore advise the superior court that there is error in the judgment complained of.

In this opinion, the other Judges, Hinman and Ellswokth, concurred.

Judgment reversed.