author: Hinman, J.

text:
    Benedict and another vs. The Danbury and Norwalk Railroad.
    While the statute, passed in 1852, securing to mechanics a lien on land and buildings, was in force, the defendants entered into a contract, which, among other things, provided for the erection of a passenger depot at the terminus of the defendants’ road, and which als® provided that the contractor should not underlet any part of the work, without the written assent of the defendants’ engineer, upon the written application of the contractor therefor; afterward the contractor entered into certain sub-contracts, in pursuance of which the sub-contractor erected the building specified in the original contract, filed a lien for a balance due him for work upon such passenger house and assigned his claim to the plaintiffs. ‘ On a bill in equity, to enforce such lien, it appeared that the engineer of the defendants drew the specifications for such passenger depot, delivered them to the sub-contractor, superintended the building and gave directions to the sub-contractor during the progress of the work. The defendants, by their directors, voted to advance to the contractor, to be paid to such sub-contractor certain amounts of money, and also paid him $2,200, on an order from the original contractor for $ and requested the sub-contractor to cause such station-house to be insured, and to assign the policy of insurance to them. But such votes did not purport to assent to such sub-contract and there was no written assent of the defendants thereto, by their engineer or otherwise, nor was there any application to them for such assent. Held that the lien claimed by the plaintiff was invalid, and that the bill ought to be dismissed.
    This was a bill in chancery, brought by the plaintiffs, who were the assignees of John Q,. Adams, for the purpose of enforcing a mechanic’s lien upon the passenger station-house of the defendants, situated in Danbury.
    At the term of the superior court, holden in October, 1855, the cause was referred to a committee, whose report embraced the following facts.
    The defendants, on the 18th day of September, 1850, entered into a written contract with Beard, Church & Co., to construct the Danbury and Norwalk Railroad, and, among other things, to build the passenger depot, mentioned in the bill. By the terms of said contract, said Beard, Church & Co., were not permitted to underlet any part thereof to any other persons, without the written assent thereto of the engineer of the defendants, for the time being, and upon the written request or application of said Beard, Church & Co.; and it was further provided by said contract, that the contractors should, upon the application of such engineer, discharge any laborer, or other person, from their employment.
    On the7th'day of November, 1851, said Beard, Church & Co., and John Q.. Adams, of Windham, in this state, made a contract in writing, which had been lost, but its contents in substance were, that said Adams, in consideration of the gross sum of $4000, was to furnish materials for, and build an engine-house, wood and water shed and passenger depot building, at the northern terminus of said railroad, in the village of Danbury; which said things, thus contracted to be, and which were done, were part and parcel of the things contracted to be done by said Beard, Church & Co., in their contract with said railroad company.
    Three other contracts, not in writing, were made between Beard, Church & Co., and said Adams, viz: the first contract, for the building of two bridges upon the line of said railroad ; the second for the building of the station house, &c., at Bethel; and the third for the building of the freight house in Danbury.
    To said contract in writing, which was the last made and performed, for the performance of which said Adams was to receive the said sum of $4000, there was no evidence of any-written assent by the engineer of said railroad company, nor of any written request or application to said engineer by said Beard, Church & Co., in reference to said contract, unless the same could be inferred from the following facts which the committee found to be proved:
    1. Harvey Smith was the chief engineer of said railroad company, from its commencement to its completion, and was appointed the superintendent thereof on the 9th day of August, 1851.
    2. By the original contract between said railroad company, and Beard, Church 6s Co., said engineer was constituted the agent of said railroad company, to give the written assent of said company, to all sub-contracts, on the written request, or application, of the original contractors.
    3. Said superintendent and engineer drew the specifications in writing for said passenger depot or station-house, and delivered them to said Adams. Said engineer made alterations, and interlineations in writing in said specifications, superintended the work and gave directions to said Adams, during its progress, which were followed.
    4. Eli T. Hoyt was the president of said railroad company from the time of its organization until the completion of said road, and he and Edgar S. Tweedy, Esq. were the finance committee during all the time said Adams was engaged in the building of said passenger depot, or station-house, and until its completion by him, and said Hoyt 6s Tweedy knew of the existence of said contract and acquiesced therein; but whether said contract was known to the other members of said board of directors was not found, unless it may be inferred from the foregoing facts and the votes of said railroad company, hereinafter referred to.
    5. Beard, Church && Co., on the 14th day of January, 1852, made an assignment, and from that time were unable to pay their debts. Soon after, the president and secretary of said railroad company enquired of Adams, and ascertained from him, the amount due to him for the work and labor he had performed, and the materials he had furnished under his contracts with said Beard, Church & Co., said Adams then being engaged in the work upon said passenger station-house, and thereafter, the following votes were passed at regular meetings of the board of directors of said railroad company, and, in pursuance of said votes, the secretary of said railroad company gave orders on the treasurer of said company, which orders were, by said secretary, entered upon the order book of said company, which votes and orders were as follows:

      Voted, That we advance to the contractors a sum not exceeding eight hundred dollars, to be paid John Quincy Adams on account of buildings.

      Voted, To advance to the contractors the sum of five hundred dollars, to pay John Quincy Adams on account of buildings.

      Voted, That the finance committee be authorized to make such advancements to the contractors to pay for buildings, as they shall think proper.
    Copies of the Order book, of the Danbury and Norwalk Railroad Company:
    “ Beard, Church & Co., No. 95, $800, January 15, 1852; advanced by directors January 14,1852, to pay John Quincy Adams on account of buildings.”

      “ Beard, Church & Co., No. 102, $500, February 2,1852; advanced to pay John Q. Adams.”
    “ Beard, Church & Co., No. 118, $2,200, March 6th, 1852 ; advanced to pay J. Q. Adams, on account of buildings.”
    Said railroad company, before making the payment to said Adams of $2,200, required him to obtain a policy of insurance on said passenger depot and assign the same to said company, which he did on the 5th day of March, 1852. Said Adams, with the knowledge and acquiescence of said railroad company, continued thereafter to labor on said passenger depot and to furnish materials therefor. About the 1st of May, A. D. 1852, he completed it.
    In performing the contract, for which Adams was to receive $4000, said engine house and said wood and water shed were first completed, and said passenger depot was last completed; and the work, labor and materials for said passenger depot constituted more than one half the entire work, which was contracted to be done for the entire sum of $4000.
    The lien which was set forth in said bill was duly filed and recorded, May 28,1852; and said lien, and the indebtedness on which the same was predicated, were assigned to the plaintiffs on the 4th day of August, 1852, of which said railroad company were duly notified.
    At the time of filing his lien, there was due to Adams, from Beard, Church & Co., for the work and materials which he had done and furnished, pursuant to his said four contracts with them, a balance of $1,055, to secure which, said lien was filed by said Adams, as aforesaid, upon said passenger station-house.
    On the 3d day of March, 1852, Beard, Church & Co., drew the following order on the said railroad company, for the sum of $3,025, in favor of John Q,. Adams, the balance then due to him from them, under his contracts.
    “ Danbury, March 3,1852.
    “ Treasurer of the Danbury & Norwalk Railroad Co.:
    “ Please pay John Q,. Adams three thousand and twenty-five dollars and place to our account.
    “ Beard, Church & Co.”
    Said order was, on the 5th day of March, 1852, presented to said railroad company for acceptance ; said company paid, upon said order to said Adams, the sum of $2,200, and took therefor the following receipt, which was signed by said Adams.

      Received, Danbury, March 5, 1852, of the Danbury and Norwalk Railroad Company, twenty-two hundred dollars, on account of the order drawn by Beard, Church & Co., on the treasurer of said company, dated March 3, 1852, for three thousand and twenty-five dollars, it being understood that in making this payment, said railroad company do not accept said order for more than the amount paid.
    Upon this finding, the case was reserved for the advice of this court.

      Ferry, for the plaintiffs.
    1. The certificate of lien, demand $1000, which amount is found due by the committee. By the recognized doctrine relating to the application of payments, this amount is due for the construction of the building described in the certificate.
    2. The finding of the committee shows that the statutory requisites, as to the written contract, and the assent of the railroad company thereto, have been complied with. Stat. p. 642-3. 1. The statute requires that the defendants should have assented to the contract. 2. That the evidence of such assent shall be in writing. The report finds both these facts.

      Averill and Carter, for the defendants.
    1. There was no assent in writing to the sub-contract under which the plaintiffs claim, and no facts are proved from which an assent in writing can be legitimately inferred. Such a consent to a letting or transfer, as is contemplated in the original contract between the defendants and the plaintiffs, would not, if proved, be an assent in writing, within the meaning of the lien law.
    2. Neither are those votes referred to by the committee an assent, in writing, to that contract in any point of view.
    3. The policy of insurance does not show an assent in writing. It rather shows that the $2,200 was applied to the payment of the amount expended in the building required to be insured, or upon the buildings in the contract, stated in the bill. The votes, authorizing the payment of money, are to the same effect.
   Hinman, J.

The plaintiffs, as assignees of John Q. Adams, seek to enforce a mechanic’s lien on the defendants’ passenger depot building, at the terminus of their railroad, in Danbury. Adams erected the building and did other work connected with the railroad, under contracts between him and Beard, Church & Co. Beard, Church & Co., were the contractors for the building of the whole road, and of certain buildings connected with it, among which was the depot building on which the lien is claimed. That portion of this work which Adams performed was done under four sub-contracts between him and the original contractors, but only one of these was in writing. The written contract was made in Nov. 1851, while the work was progressing under the former parol contracts, and he commenced work under it before he had finished work under the former contracts; and as payments were made from time to time, without any specific application of them, a question is made, whether the $1055, which is the balance due for his whole work, can be said to be due for work under the written contract any more than it is due under the parol contracts,—and whether the lien is not claimed for a general balance of account, which is not specifically referable to any contract; in which case, it obviously cannot be sustained. We have come to the conclusion, on other grounds, that the lien claimed in this case, cannot be sustained, and therefore do not decide this question. The certificate of lien was filed in May, 1852. The law then in force required a sub-contractor’s contract to be in writing, and to be assented to in writing by the party for whom a building was erected, or no lien was created in favor of the sub-contractor. Stat. Ed. 1854, p. 642, § 2. Smith v. Cong. Soc. of Naugatuck, 23 Conn. 635. Consociated Presbyterian Soc. of Greens Farms v. Staples and others, 23 Conn. 544.

And the original contract between the defendants and Beard, Church & Co., also provided that they should not underlet any part of the work without the written assent of the engineer of the defendants, upon the written application of Beard, Church & Co., therefor. And Beard, Church & Co., were bound to discharge any laborer from their employment, on the application of such engineer.

The written contract with Adams was for the building of the passenger depot and two other buildings in Danbury; all for the sum of $4000. But there was no written assent of the defendants to this contract, by their engineer or otherwise, unless certain facts which appear in the report of the committee amount to such assent, and the principal question in the case is whether these facts do amount to such assent. There was no application in writing or otherwise to the defendants, or their engineer, for any such assent as was provided for by the contract between the defendants and Beard, Church & Co. But we place no reliance on this fact; because this was a stipulation introduced into the contract for the sole benefit of the defendants, and, not being one of the requisites of the statute, it was obviously competent for the defendants to waive it, and we suppose the written assent of the defendants to a sub-contract, would, without doubt, amount to such waiver. Coming then to the question, whether the facts relied upon by the plaintiffs are sufficient to show the written assent of the defendants to the sub-contract between Adams and the original contractors for the road, let us see what these facts are, and what inferences can fairly be drawn from them.

It is claimed that it was the duty of the engineer to give his assent to this contract, because the contract between the original parties contemplated that sub-contracts would be made, and provided for his giving his assent thereto, on behalf of the defendants; and the presumption is, that he did not neglect his duty. But it no where appears that his assent was applied for, either by Beard, Church & Co., or by . Adams ; and, by the terms of the contract, there could be no neglect in this respect, until a proper application was made for his assent. Besides, if it be assumed that it was his duty to assent, this of itself amounts to nothing. Had there been circumstances going to show that he did in fact assent in writing, perhaps, in a doubtful case, the fact, that it was his duty to give such assent, might be entitled to consideration on the question. Without such circumstances, this supposed duty can not be held to be proof of the discharge of it. It is not the written assent required by law and this i§ not an application to compel the engineer, or the company to perform their duty in this respect. It is also said that this written assent need not be signed and that no particular formality is required in giving it. This may be admitted, still there must be the defendants’ assent to the sub-contract, and it must be in writing. It is pressed upon us that, because the engineer drew up the specifications for this building, and delivered them to Adams, he must, in this act, have known of and assented to the sub-contract. If he had drawn up the specifications and caused them to be inserted in the subcontract as a part of it, it might amount to the written assent required, especially as there does not appear to have been any dissent to it by any body. But, under what circumstances these specifications were made, whether they were drawn up before, or after the contract with Adams, and whether that contract refers to them in any way, no where appears. It cannot be presumed that important facts like these would have been left without proof, if there was anything in them favorable to the parties. Without some evidence, therefore, other than the naked facts that the engineer drew up the specifications for this building, delivered them to Adams, and at some time, or times, made interlineations and alterations in them, we cannot say necessarily that he must have assented to a contract that does not appear to have been before him. And perhaps it is not unworthy of note that he would hardly have ventured to make alterations and interlineations in these specifications, had they constituted any part of the contract between Adams and Beard, Church & Co.

Similar remarks apply to the fact that the engineer superintended the work, and gave directions to Adams during its progress. This shows that he recognized Adams as engaged in the construction of the building, but it shows no recognition of the contract, much less a written recognition and assent to it.

After the failure of Beard, Church & Co., the president and secretary of the railroad company ascertained from Adams the amount due him for work &c.; under his contracts, and at subsequent meetings of the directors, they voted to advance to the contractors, to be paid to Adams on account of buildings, a sum not exceeding eight hundred dollars ; and again, in the same form, a sum not exceeding five hundred dollars; and again on the 20th of Feb. 1852, they voted that the finance committee be authorized to make such advancement to pay for buildings as they thought proper. The sums mentioned in the two first votes were advanced according to the terms of them; and under the last vote, an order drawn by the contractors, Beard, Church & Co., in favor of Adams, for the sum of three thousand and twenty-five dollars, was accepted and paid, to the amount of twenty-two hundred dollars, on a stipulation that the payment was not an acceptance of the order for more than the amount paid.

These votes do not purport to assent to the contracts with Adams. In this respect they are carefully guarded. They vote, to advance to the contractors, Beard, Church & Co., and because they say that it was to pay Adams, it only shows that they knew the contractors were indebted to him. But it does not recognize the debt, as one which they were bound to pay, because Adams had a lien for it on their buildings. There is nothing in the votes or in the information communicated to the directors before they were passed, or in both combined, that shows they knew the terms of the contracts referred to. They do,it is true, recognize Adams, as a party who had performed work upon their railroad buildings, under contracts with the contractors. But they no more recognize the written contract, than any one or all of the parol contracts. They knew there were contracts between Adams and their original contractors. But this is not assent in writing to those contracts. And if, as is very probable, there was a kind of tacit assent to them—that is to say, if the defendants had no objection that Beard, Church & Co., should employ Adams to do a portion of the work which they had contracted to do themselves, it does not follow that they would not object to incumber their property by a lien for an indebtedness, the amount of which they only ascertained after the failure of the first contractors. The object of requiring an assent in writing to sub-contracts, certainly one important object, was to enable the general owner of property on which buildings were being erected, to know the extent of the incumbrance, to create that privity of contract between him and the sub-contractor, that should make it both equitable and legal that his property should be charged with the debt of another. The votes show that, to the extent of the money advanced under them, the defendants were willing to assist Adams in obtaining payment from the contractors, and this he has done. To use them now to subject the defendants for the full amount of his debt against the contractors, we think was not contemplated when they were passed, and ought not to be allowed.

When the defendants accepted Beard, Church & Co’s order, and paid twenty-two hundred dollars on it, they required Adams to cause the depot building to be insured, and to assign the policy to them. Not much reliance was placed on this fact, as showing an assent in writing to his contracts with the contractors. And it seems sufficient to say that we do not think it amounts to such written assent.

The defendants made a question, whether the lien should not have covered all the buildings erected under the written contract, set out in the bill, but as we have decided the ease in their favor, on other grounds, it is unnecessary to consider it. We advise the superior court that the plaintiffs’ bill be dismissed.

In this opinion Storrs, J., concurred, Waite, C. J., being absent.

Bill dismissed.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    Blackman and another vs. Beha.
    The defendants, in an action of trespass before a justice of the peace, pleaded in abatement the defective service of the plaintiff's writ, to which plea the latter demurred. The court sustained the demurrer, and ordered the defendants to answer over, which they refused to do, whereupon judgment was rendered in favor of the plaintiff. The defendants then appealed from the judgment upon the demurrer to the superior court. Held, that such appeal did not vacate the final judgment of the justice, and that the superior court could take no cognizance of the case.
    This was an action of trespass vi et amis, brought by Alexander Beha against Isaac Blackman and Edwin Wooster, demanding fifty dollars damages.
    The suit was answerable before a justice of the peace, on the 4th day of August, 1855, and on that day the defendants appeared, and severally pleaded in abatement the defective service of the plaintiff’s writ. To these pleas the plaintiff demurred specially, on the ground that said pleas were not signed, either by the defendants or by their attorney. The court decided that said pleas were insufficient, ordered the defendants to answer over, and adjourned the cause to the 10th day of August, when the defendants severally pleaded anew such defective service, and moved that said latter pleas be placed on file and the plaintiff be required to make answer thereto. That motion was disallowed by the court, and the defendants were ordered to make further answer to the plaintiff’s declaration. This they neglected and refused to do, whereupon the court rendered judgment in favor of the plaintiff, for fifty dollars damages and costs. From the judgment of said court upon said pleas in abatement, and the answer thereto rendered on the 4th day of August, the defendants appealed to the superior court. Said superior court adjudged said pleas insufficient, and rendered judgment in favor of the plaintiff to recover his costs.
    The defendants thereupon filed a motion in error, and brought the case to this court.

      Wooster and Downs, in support of the motion.
    Cowles, contra.
   Ellsworth, J.

The judgment of the superior court must be reversed for the want of jurisdiction. The suit was commenced in a justice court, where a plea in abatement was filed, for defective service. The plea, not being signed, it was, for that cause, specially demurred to. Now, without meaning to decide whether the plea in abatement was good or bad, or whether the objection should not have been raised, on the reception of the plea, rather than by demurring to it, we are satisfied that there is error in this record.

The justice overruled the plea in abatement, and ordered further answer to be made, but the defendant, not complying with the order, he gave judgment for damages and costs, and that judgment is still in force and unappealed from; so that there are, at this time, two outstanding judgments for the same thing. An appeal, upon the plea in abatement only, did not vacate the final judgment. For this irregularity, we reverse the judgment of the superior court, leaving the defendant to any further relief, to which he may be entitled, according to law.

There is manifest error.

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

Judgment reversed.


author: Storrs, J.

text:
    Dann vs. Norris.
    To constitute a title to a promissory note by endorsement, a delivery of the note hy the endorser to the endorsee, or that which is equivalent to such delivery, is necessary.
    The holder of a promissory note, who endorses it to an agent, merely for the purpose of enabling the latter to collect it for the former, may sustain a suit on it in his own name, and it is not necessary, for that purpose, that his endorsement should be stuck out, either before, or at the trial.
    This was an action of assumpsit on a negotiable promissory note, brought by Amos Dann against Benjamin Norris. The note declared on, was-made by the defendant; was for the sum of two hundred and fifty-four dollars and eighty-seven cents, and payable to the order of the plaintiff, one day after date.
    The defendant pleaded the general issue, and the cause was tried before the superior court, at the term holden in December, 1855.
    On trial, the plaintiff testified that the note described in the declaration, was endorsed by him before the commencement of the plaintiff’s suit; that he met one Anthony York, of Lima, in the county of Livingston, state of New York, and requested him to become the endorsee and owner of said note, and the owner and holder of seven other notes of hand, all of which notes were made and executed in the state of New York; the seven last mentioned notes, being made payable to bearer, he delivered to the said York, but when and where, before the commencement of the suit did not appear; neither did it appear when the first mentioned note was endorsed, but it _ did appear that it was not done when they met, as before described, nor at any time when the parties were together. Said York never had said note in his possession, and never saw the same. At the time of said meeting, said York gave the plaintiff a receipt for said notes, by which he stipulated and agreed with the plaintiff, that the avails should be the plaintiffs’, when collected. Subsequently, and before the commencement of this suit, the first mentioned note was put by the plaintiff into the-hands of Wm. F. Taylor, Esq. of Dan-bury, Connecticut, for collection, with said endorsement thereon, and said endorsement continued on said note, up to the day next preceding the trial of said case. The plaintiff also testified that his motive for so endorsing said first mentioned note, and delivering it and said other notes to said York, was to divest himself of any interest therein, and thereby be enabled to testify on the trial of this case, as he supposed by the laws of this state, his testimony would not otherwise be admissible. He further testified and admitted, that after the commencement of said suit, to wit, on the 23d day of June, 1854, he gave his deposition to be used on the trial of this case, wherein, among other things, he testified as follows:—“ The owner of all the notes, is Anthony York, of Lima, Livingston county, New York.” The plaintiff on the trial further testified, that, after the transfer of said notes, a correspondence ensued between Mr. York and said Wm. F. Taylor, Esq., in reference to said first mentioned note of $254.87, and that the plaintiff, wrote the letters which passed from said York to said Taylor, and that said York copied them and forwarded them to Mr. Taylor, in the name, and over the signature of said York, but said Taylor communicated directly with the plaintiff, and never with said York. One of his letters was read on the trial and was as follows:

      “ Dear Sir,—I cannot consent to arbitrate with Benjamin Norris. That would be to show that I doubted my own claim. If he wants to pay it, let him, but if he compels me to sue, I shall put more with it. If he pays, you may give a receipt in full of all demands. Let me know at once whether he wants tobe sued, and I will attend to every thing needful on my part.” The plaintiff further testified that he was a practising lawyer of the state of New York, and that by the laws of said state all said notes were negotiable. This was all the testimony offered, on said trial, as to the ownership and legal title to said notes. Whereupon the defendant claimed that the present action could not be sustained by the plaintiff; that the legal title to all said notes was in said York, at the commencement of the suit, and so continued, and that as to the note declared on, although if not delivered at the time, it was so endorsed to said York, and said receipt given, yet the legal title then passed; that no formal delivery was necessary, and further, that by the testimony and admissions of the plaintiff, the possession of the notes by Wm. F. Taylor, Esq., for collection, and the correspondence in reference to the same with York, made the transfer perfect, and invested said York with the legal title, and requested the court to charge the jury in conformity to the above claims of the defendant. The court did not so charge the jury, but, on this part of the case, did charge them as follows:

      “ That the mere writing the name of the holder on the back of the note is not sufficient to transfer the same to the endorser. The note must be delivered as well as endorsed, or something done equivalent to a delivery.
    “ If the plaintiff sent the note to Taylor for York, or if it was in his hands for York, or if he sent the note to him, and Taylor, with the assent of the plaintiff, informed York that he held the note for him, this would be sufficient in either case, with the endorsement, to transfer the same;” and the court left it to the jury to determine, as a question of fact, what was the character of the holding of the note by said Taylor.
    The jury returned a verdict in favor of the plaintiff; the defendant moved for a new trial, and the case was reserved for the advice of this court.

      Averill, in support of the motion.
    The legal title to the note in question at the time the action was brought, was not in the plaintiff. Not only does all the evidence in the case show this, but the plaintiff himself swore to this fact, gave his reasons for putting the note out of his hands, and took a receipt from the endorser, whereby he agreed to account for the note, when collected.
    An action on a promissory negotiable note can be commenced, and sustained by him alone, who has the legal title. 1 Chit. Pl., 3, 4. 1 Sw. Dig., 430. Lee v. Gilson, 9 Conn. R., 94. Shepard v. Hall, 1 Conn. R., 494.
    Ferry, contra.
    The endorsement of a note, even if accompanied by delivery, for the mere purposes of collection, does not so change the title, as to preclude the payee from maintaining a suit in his own name. If unaccompanied by delivery, it creates no change whatever.
   Storrs, J.

The defendant claimed on the trial, that the plaintiff had, before the suit was commenced, transferred, by his endorsement, the note declared on, to one York, and that therefore, for the want of a legal title in himself, he could not maintain this action. We discover nothing exceptionable in the charge of the court below on this point. It stated that a delivery, or that which is equivalent, is necessary, by an endorser of a note to the endorsee, in order to constitute a transfer of the title to it by endorsement, and was in precise accordance with the principles settled in Clark v. Sigourney, (17 Conn. R., 511,) where the subject is very fully examined ; and the rule by which those principles should be applied to this case was also, in our opinion, very correctly stated. Under that charge, the jury found that there had been no valid endorsement, by the plaintiff, of the note in question. The defence, of course, failed on this ground.

But we have no doubt that, under the circumstances of this case, as presented on the trial, the plaintiff would have been entitled to recover on the note, although it had been by him endorsed and delivered to York. It appeared that it was so endorsed to the latter, only for the purpose of his collecting it for the use of the plaintiff. He therefore had no real interest in the note, and held it only as the plaintiff’s agent, and possession of it had been resumed by the plaintiff. The authorities are decisive, to show that an endorsement, by the holder of a note to an agent, for such a purpose, constitutes no objection to a recovery on it against the maker, in the name of the holder. The cases are not entirely uniform on the point, whether, where it appears, by the note, that it has been endorsed to another person by the payee, or an endorsee, possession of it by the latter is sufficient evidence that it was endorsed merely for the purpose of collection. But they all agree that it maybe proved that it was endorsed for that purpose only, and that if such is shown to be the case, the endorser may sustain a suit on it in his own name, and that for that purpose, it is not necessary that his endorsement should be struck out, either before or at the trial. Dugan v. U. States, (3 Wheat, 182.) Manhattan Co. v. Reynolds, 2 Hill, 141. On the trial, it was proved that, if the note was endorsed to York, it was done only for the purpose of enabling him to collect, it for the plaintiff. No point therefore is here involved, on which there is any contrariety in the authorities.

We do not advise a new trial.

In this opinion, Hinman, J., concurred, Waite, C. J., being absent.

A new trial not to be granted.


text:
    Montague vs. Richardson and another.
    The statute, which exempts from warrant, or execution,“bedding, and household furniture necessary for supporting life,” (Rev. Stat. Tit. 1. Ch. 14. §179,)isare-medial one, passed for a humane purpose, and ought to be liberally expounded, in furtherance of the benevolent objects, for which it was enacted.
    The term “ necessary” in such act, while it excludes superfluities and articles of luxury, was not intended to denote those articles of furniture only, which are indispensable to the bare subsistence of the debtor and his family,—but to embrace those things, which are requisite in order to enable them to live in a convenient and comfortable manner.
    Nor is that term confined to such articles, as were necessary, at the time when it was passed.
    In an action of trespass, for talcing, upon a process of attachment, household furniture, claimed by the plaintiff to be exempt from execution, the court instructed the jury that said act exempted only such articles of furniture, as are indispensably requisite for supporting the lives of the debtor’s family. Held that this construction of the term “necessary,” was too rigid, and that a new trial should be granted.
    Trespass against John Richardson and Benjamin Webster, for taking and.carrying away certain articles of household furniture, the property of the plaintiif.
    The cause was tried before the superior court for the county of New Haven, at the term holden in October, 1855.

      On the trial, it was admitted that at the time when the trespasses, alleged in the declaration, were committed, Benjamiri Webster, one of the defendants, was a constable of the town of New Haven, and as such had in his possession, for service, a bill in equity, in which the defendant Richardson and others were plaintiffs, and commenced by a process of attachment, and that, with said process, he entered the dwelling-house of the plaintiff, and took and removed therefrom, the following articles of household furniture: two sofas, two mahogany tables, one cherry table, two dress-stands with glass, one writing desk with the contents, eight cushioned chairs, two divan stools, one bedstead, one Brussels carpet, two rocking chairs, one small mahogany stand, one dress stand, six cane-bottom chairs, one washstand with pitcher and bowl, six flag-bottom chairs, seven silver tea-spoons, three table-spoons, one butter knife, six mantel ornaments, two plated tea-pots, one glass pitcher, one glass lampshade, one egg shell, one lot of shells, one work basket, two tea-salvers, one bed spread, two looking-glasses, two portraits, one picture, one duster, five books, two small lamp-mats, two lamp-mats, eight table-cloths, twenty-three pieces of linens, one piece of stair carpeting, two hall carpets, one chamber carpet, one sitting-room carpet, one stove and pipe, one looking-glass, one piece of zinc.
    Said articles were subsequently, within a few days, released by a bond, pursuant to the statute, and said process was duly returned to court.
    It was proved and admitted, that the plaintiff’s house contained a keeping-room, usually occupied by the family as a sitting-room, a parlor, a kitchen, a bed room, and several chambers, all of which contained appropriate furniture, and that, at the time of said alleged trespasses, the plaintiff had in his kitchen an apparatus called a Culver’s half range, with which the cooking for the family was done; and that, in the said sitting-room, he had a stove which was then in use, and was then taken away by said Webster and said Richardson; and that, with the exception of this stove, the plaintiff had ño stove at all in his house, unless the said range was a stove, within the meaning of the statute specifying property exempt from execution. And in reference to said range the defendant introduced evidence tending to prove, and claimed that he had proved, that it was not a stove, but was merely a cooking apparatus fastened into the fire-place of the kitchen by masonry, and was not capable of giving comfortable warmth to the kitchen, and was not capable of imparting any warmth to any other part of the house ; but the plaintiff introduced evidence tending to prove, and claimed that he had proved, that said apparatus was not then fastened into said fire-place, but was standing out in the kitchen, and was a stove, to all intents and purposes, and was at all events, even if fastened as aforesaid, capable of being brought out, and had been frequently so brought out into the room, and when so brought out was like a cooking stove, capable of imparting warmth to the room and of being used as a stove, and was therefore a stove within the meaning of said statute. And the plaintiff introduced evidence tending to prove, and claimed that he had proved, that the defendant stripped the plaintiff’s house of all its furniture except a few chairs, insufficient to seat the plaintiff’s family; a small table, insufficient in size to enable all the family to sit together around it; a few knives and forks, and a few other articles of furniture; and that before and at the time of said alleged trespasses, the furniture of said house was sufficient and suitable for the plaintiff’s condition. The defendants, in committing said alleged trespasses, took a large quantity of such furniture as is, in common parlance, called necessary household furniture, and so reduced the quantity and limited the descriptions of the plaintiff’s furniture, that it would have been impossible for the plaintiff, or his family, to live without great privation and distress with so little furniture as the defendants left; and that the health of the plaintiff’s yvife and grand child was injured by the removal of said stove, and that the health of the plaintiff and his family would have been necessarily impaired by their continuing to live in the destitute condition, in which the defendants left them with respect to furniture, and that in that condition, the plaintiff and his family could not enjoy, at any time, the ordinary comforts of life. And thereupon the plaintiff requested the court to charge the jury, that, in determining what was household furniture necessary for supporting life, they were not to restrict that term to that furniture, without which a man’s existence could not be preserved, but that they must give the term a liberal interpretation, and must consider it as embracing all such furniture as would be necessary to support life in its proper condition of comfort and health, and that, in applying the term to the present case, it would be their duty to consider the age, habits of life, and condition in life of the plaintiff and of his family, and that, inasmuch as the meaning of the term would vary, in order to adapt itself to different cases, the term, when applied to persons in the condition in life in which the plaintiff claimed that he and his family were, would embrace articles of furniture which would not be embraced in the same term, when applied to persons accustomed to poverty and destitution.
    All these claims in relation to the household furniture were denied by the defendant, who introduced evidence tending to prove, and claimed he had proved, that there was left untouched by said attachment much more than was sufficient for the support of life, within the meaning of the statute, with sufficient chairs, tables, table furniture and chimney furniture, and other articles of household furniture more than sufficient, as he claimed to have proved, for the requirements of the statute.
    The plaintiff claimed that the several articles of household furniture, and the stove so taken, were exempt from execution; that the letters, books, and other articles not specified, were not liable to attachment, and that the defendants had been guilty of a wanton and unjustifiable trespass, attended with such circumstances of aggravation, as entitled the plaintiff to exemplary damages.
    Much evidence was also introduced by the plaintiff, for the purpose of showing that other articles had been taken, besides those specified in the return of the officer, and among them the letters, papers, and account books of the plaintiff, and that, in praying out, and procuring the service of said process, said Richardson was actuated by improper and malicious motives, and that said process was colorable, his chief design being to get possession of said letters, papers, and books of the plaintiff. Various questions^ as to the admissibility of evidence, were raised during the course of the trial, but as no opinion was expressed by the court, upon these questions, a further statement of the facts and evidence in the case is unnecessary.
    The court instructed the jury as follows:
    “ Your attention will naturally be directed in the first place, to the enquiry, whether any of the articles were exempt, by force of the statute in relation to household furniture, or by force of any of the specific exemptions of the statute. I am not aware, that any article is claimed to have been specifically exempt, except the stove.
    “ 1. As to the articles of household furniture. The language of the statute is, “ bedding and household furniture necessary for supporting life,” and it is a question of fact for you, whether all, or any, and which, of the articles of furniture taken, were exempt, by force of this statute. But it is proper, and I deem it my duty to make such suggestion to you in relation to the construction of the statute, as will aid you in coming to a correct conclusion.
    “ This statute, like all others, is to be construed according to the apparent intention of the legislature, which enacted it, gathered from the language used in connection with the subject, and purpose of the law. It is an ancient statute. The language was originally, “necessary for upholding life ;” it was modified in 1821, to “ necessary for supporting life,” but the modification does not appear to alter, essentially, the meaning. You will look first, at the language. This is general ; necessary for supporting life. It is necessary, that is, essential, indispensably requisite for supporting the lives of the family, not according to any social condition in life, nor to any social relation or intercourse with others, but necessary to support the lives of the family, as a family, irrespective of their social conditions or relations, or intercourse with others. The term “ necessaries” in law, used in other cases, where the duty of supporting a person or persons, is thrown by law, upon another, as the support of a child, or wife, or relative, has relation to the social condition of the person; but the words supporting life, in this statute, are words of limitation, and confine the exemptions to such articles as are necessary to the support of the lives of the family. I make these suggestions, because the distinction is not always drawn; and there is some confusion in the public mind, in relation to the extent of the exemption, in consequence of the failure to make the distinction.
    “It is proper, also, that you should look at the subject and purpose of the law. The subject is an exemption from the great cardinal rule of honesty, which the founders of the commonwealth adopted, that every man should be just, that his property should be subject to the payment of his just debts, and that these should be paid, before he should be generous to himself, or his family. The purpose was to reserve, for the use of the family, however, such articles as were necessary to sustain their lives, from regard for them; for the debtor himself might then have been immured in a prison. It is further proper, that you should look at the state of things when the law was passed,—at the fact that many articles of luxury, convenience and comfort, and necessary in a social point of view, were then unknown, that you should look at the statutes of other States, to which allusion has been made, so far as they show the general sentiment of the age, and to the cotemporaneous and continual practical construetion which has been given to the statute. The great question is not what the law ought to be in the present state of society, and of public sentiment; what may be your opinion or mine, but what was the intention of the legislators who enacted it. If it is not now in conformity to the spirit of the age, it is not our business to make it so by construction; but for the legislature to amend and alter it, and make it conform to the spirit.
    “ 2. As tó the stove. The law specifically exempts one stove and pipe. It is admitted that one was taken, and claimed that one was left. It is for you to say, whether the range was a stove within the spirit of the law.”
    The jury, having rendered a verdict of fifty dollars damages againstthe defendant, Richardson, the plaintiff moved for a new trial.

      Buel and Peck and Harrison, in support of the motion.
    1. In instructing the jury as to the construction of the statute exempting bedding and household furniture “necessary for supporting life,” the court erred and mistook the law, and misled the jury thereby.
    2. The construction, given by the court is subversive of the object, design, and spirit of the statute, and of the humane principle that prompted its enactment, and contrary to the interpretation and decision of our own courts, and those of other states upon similar statutes. Crocker v. Spencer, 2 Chip., 68. Leavitt v. Metcalf, 2 Verm. R., 342. Hart v. Hyde, 5 Verm. R., 328. Atwoods. DeForest, 19 Conn. R., 513. Davlin v. Stone, 4 Cush. R., 359. 10 Met., 506. 10 N. H., 356. 10 Verm. R., 433. 4 Conn. R., 450. The statute is a remedial one, and should receive a liberal and beneficial construction in order to effectuate the intention of the legislature. 5 Conn. R., 122. 6 Conn. R., 110-114. 19 Conn. R., 299.

      Baldwin and Blackman, contra.
    The jury were properly informed, that it was a question of fact for them, whether all or any, and which of the articles taken was exempt, as “ necessary for supporting the lives of the plaintiff’s family,” as a family, irrespective of their social condition or relations, or intercourse with others. 4 Conn. R., 453.
    The word “ necessary,” alone, without words of qualification, was not, at any period, deemed sufficiently expressive of the meaning of the legislature. It was susceptible of a broader interpretation than would comport with the policy of the law. It might be construed to mean necessary for the comfort, for the convenience, for the maintenance of the social position, or ordinary habits of life of the debtor.

      2. But the law, subjecting all the property of the debtor to the payment of his debts, was designed not only to secure justice to the creditors, in each particular case, but to have a continuing and salutary operation, as a restraint upon fraudulent, or improvident, debtors. The legislature, therefore, to prevent misconstruction, and to render it clear that they meant to use the word “necessary” in its most rigid and restricted sense, added; the qualifying words “ necessary for upholding lifethus using language, applicable alike to all debtors in default, irrespective of any diversity in their habits of life. This is inferable, not only from the language originally used and carefully preserved, but from the character of the times when the act was passed, the modes of life, and the rigid sentiments in regard to the sacred obligation of contracts and the duty of the government, then prevailing. 19 Conn. R., 513.
    3. This construction is also in accordance with the provisions of similar statutes in other states, and it is believed, with the practical interpretation of the law, from the period of its enactment.
    The evidence was submitted to the jury, with these suggestions, and they expressly found that no articles were taken which were necessary “to support the lives of the family, as a family, irrespective of their social condition or relations, or intercourse with others.”
   Storrs, J.

The principal question, in this case, involves the correctness of the construction given by the court below to the statute which, among other property, exempts from warrant, or execution, “bedding, and household furniture necessary for supporting lifeRev. Stat. Ch. 1, § 179, p. 112. The jury were instructed that this provision exempts only such articles of furniture, as are indispensably requisite for supporting the lives of the debtor’s family. We are of opinion that this is too rigid a construction of the phrase, “ necessary for supporting lifeor, rather, of the word “ necessary,” contained in it, which would have given to the provision the same meaning, if the succeeding words “for supporting life” had been omitted; since it is obvious that the word necessary would imply a necessity for some particular purpose, and that could only be the supporting of life. It was accordingly assumed in Davlin v. Stone, 4 Cush. R., 361, that the word necessary, which was used in the Massachusetts statute, exempting, after an enumeration of some .specific articles, “ other household furniture necessary for the debtor and his family, not exceeding fifty dollars in value,” without expressing the purpose for which such necessity should exist, implied that that purpose was the support of the debtor’s family. The enquiry before us is, as to the true sense in which the word “ necessary” was used in the law now in question. On this point we derive no aid from the phraseology of the former statutes, in relation to the exemption of household furniture from legal process. They differ from the present law in their arrangement; but otherwise they are all alike, excepting that for the word, upholding, which is used in the ancient statute, the synonymous word, supporting, is substituted. We think that the term “ necessary” was not intended to denote those articles of furniture only, which are indispensable to the bare subsistence of the persons for whose benefit the law was designed, the debtor and his family. According to such a limited construction, it would exclude many things which universal usage and the common understanding of that word, in reference to this subject, have pronounced to be necessary articles of household furniture; and would indeed protect merely those rude contrivances which are used only in a savage state. The word was obviously used in a larger sense; it was intended to embrace those things which are requisite, in order to enable the debtor not merely to live, but to live in a convenient, and comfortable manner. It however excludes superfluities and articles of luxury, fancy and ornament, as remarked by Ch. J. Shaw, in 4 Cush. R., 361; “ it was not used in its most rigid sense, as something indispensable, and without which the debtor cannot live, but something so essential as to be regarded among the necessaries, as contradistinguished from luxuries.” The word necessary” has properly, and frequently, in common parlance, a limited and qualified signification, and indicates means for the accomplishment of a purpose, which are reasonably requisite and proper for that purpose under the circumstance's • of the case, rather than those without which it would be absolutely impossible for it to be accomplished. And such is the sense in which it would be commonly used and understood in our community, in speaking of furniture necessary for supporting life, or necessary for house-keeping, or necessary for a family. In this sense the word was, in our opinion, used in the act in question, as indeed it is in many others. The exposition of this term by Ch. J. Marshall, in reference to the meaning of it in a particular clause of the Constitution of the United States, is applicable to this act. He says ; does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist withoutthat other? We think it does not. If reference be had to its use in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense, in that sense which common usage justifies. The word ‘ necessary’ is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words which increase, or diminish, the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases. * * * This word, then, like others, is used in various senses ; and in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.” Mc Culloch v. Maryland, 4 Wheat. R., 316.

The statute in question is a remedial one, and being passed for a humane purpose, ought to be liberally expounded in favor of humanity, and in furtherance of the benevolent objects, for which it was enacted. The interest of creditors does not, as has been claimed, require a greater strictness in its construction, than the one we have adopted, on the ground that they would otherwise be seriously affected in regard to the collection of their debts. The law was prompted by an enlightened view to the interest of creditors, as well as of debtors, and in our opinion our construction will advance the interests of both, while the narrow and rigid construction • contended for would not operate generally for the benefit of either. A reference to the decisions of the courts, in the other states, upon similar statutes, some of which are, in their terms, like our own, will show that they have uniformly favored the same liberal rule of construction which we have adopted. Crocker v. Spencer, 2 Chip., 68. Leavitt v. Met- calf 2 Verm., 842. Freeman v. Carpenter, 10 Verm., 435. Richardson v. Buswell, 10 Metc., 506. Davlin v. Stone, 4 Cush., 359. Peverly v. Sayles, 10 N. Hamp., 356.

In regard to the kind, quantity and quality of the articles of furniture which would be exempted in particular cases under this law, it is obviously impracticable to prescribe, or specify them. Each case, as it arises, will depend on its own peculiar circumstances, and present the question, as one of fact, for the jury to determine, whether the exemption exists, according to the exposition of the law which we have given.

We do not concur in the suggestion that this law exempts only such articles, as were necessary at the time when it was passed. Some articles of furniture, greatly conducive to convenience and comfort, and proper for every family, have been since invented, and others which would then have been deemed superfluous, have now ceased to be so, and are properly considered to be necessary. The enquiry is, whether the article in question was necessary when it was levied on by the creditor.

On this point there should be a new trial.

The question, whether the apparatus, called a range, was a stove, was, on the conflicting claims of the parties, as to its character, one of fact, and as such properly submitted to the jury.

The question of evidence, which has been argued before us, is presented so unintelligibly on this motion, that an examination of it would probably serve no useful purpose, and, as it is not necessary, we do not attempt to express any opinion upon it.

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

New trial to be granted.


text:
    The Town of Hamden vs. Rice.
    A devise of land to a town, directing “ all the interest thereof to be laid out in repairing highways and bridges yearly, and not to be expended for any other use,” is a devise for a public and charitable use, and is valid under the statute, relating to lands given for public uses. (Eev. Stat. Tit. 29, Ch. 1, § 3.)
    The Act, restricting tenants for life from committing waste, passed in 1840, (Eev. Stat. Tit. 1, Ch. 15, § 284,) embraces tenancies for life, created by will.
    Where, in an action on the case, in the nature of waste, it was found that the land in question was damaged by cutting and carrying away forest trees, which were of the value of $253.50, it was held that this constituted a sufficient injury to sustain such action, but that the plaintiffs should recover only to the extent of the damage to their specific estate.
    This was an action on the case, in the nature of waste, brought by the town of Hamden against Lemuel Eice, for cutting and carrying away trees from a certain tract of land lying in said town.
    In their declaration, the plaintiffs alleged that they were the owners in fee of the reversionary estate and interest in said premises, which were the same that formerly belonged to Enos Brooks, deceased, and that Eoxana Brooks was, and now is, tenant thereof, having the use and improvement thereof only during her life.
    The defendant pleaded the general issue, and the cause came on for trial, at the term of the superior court, holden in October, 1855, when, by agreement of the parties, the court found the following facts, and reserved the case for the advice of this court.
    The plaintiffs ■ claimed title to the land in question, as devises under the last will and testament of Enos Brooks deceased. The material part of said will is as follows : “ I give to my wife, Eoxana Brooks, the use and improvement of all my estate, both real and personal, during her natural life. At her decease, I give the whole of my estate, above mentioned, after all debts are paid, both real and personal, to the town of Hamden, and all the interest of said property to be laid out in repairing highways and bridges yearly, and not to be expended for any other use.”
    After the death of the testator, his widow, Roxana Brooks, took possession of the premises, as tenant for life under said will.
    It was further found that the defendant had, at divers times, mentioned in the declaration, by the permission and consent of said Roxana Brooks, having purchased of her, cut and carried away from said land, divers forest trees thereon growing, and sold the same to divers purchasers; and the damage done to said land by the acts aforesaid of the defendant, the ’ court found to be two hundred and fifty-three dollars and fifty cents.
    Baldwin, and R. I. 8f C. R. Ingersoll for the plaintiff.
    I. Although by the common law, as is recognized in this state, in the case of Moore v. Ellsworth, 3 Conn. R., 483, a tenant for life, unless of an estate created by law, was not liable for waste, the law was altered at a very early period in Great Britain by the statutes of Marlbridge 52, Hen. 3, and of Glocester 6, Edward 1; and in this state by the statute of 1840.
    The statute of 1840 (p. 150) enacts, that “ every person, who, having no greater interest in real estate than an estate for years, or life, created by the act of the parties and not by the act of the law, shall commit waste upon the premises, beyond what tenants for years, or life, created by operation of law may do, shall be liable to the. party, injured, &c., unless he is expressly authorized .by; ;t}re. contract under which such interest is created, to ,doi tEp' acts complained of.” Roxana Brooks, under whom the1 defendant justifies, had “ no greater interest in the land wasted than an estate for life, created by the act of the parties, and not by the act of the law.” It was created by the act of the devisor, assented to by her at his decease, when the devise became operative, and she became thereby a purchaser of the estate for life.

      The defendant claims that the statute of 1840 has respect only to conveyances by deed, because there is an exception in favor of tenants, who are “ expressly authorized by the contract, under which such interest is created.” But the liability for waste, by the words as well as by the equity of the statute, extends to all tenants for years of life, (other than such as were liable at common law,) unless authorized by the contract, &c. The statute, while it recognizes the right of the party creating the estate to authorize the commission of waste, obviously is based on the assumption that, from the limited duration of the estate of the tenant, such an authority ought not to be inferred. It presumes that an individual, creating such an estate, does not intend to confer a power, which the law withholds from tenants of a similar estate of its creation. There can be no reason why any different presumption should be made in favor of a devisee, than of a grantee by deed, of an estate for years, or for life. The statute had regard to the amount of interest only: “ having no greater interest,” &e., and must have been designed to place tenants of similar estates, however deprived, prima facie, on the footing of tenants by aid of the law.
    Such has been the construction of the English statutes of Marlbridge and Glocester. The statute of Marlbridge 52, Hen. 3, Ch. 23, (see Bacon ab. waste A,) enacts that “ farmers during their terms, shall not make waste, sale nor exile of house, woods and men, nor any thing belonging to the tenements that they have to farm, unless they have special license by writing of covenant, mentioning that they may do it.” This statute, by the language used, includes within its words only such as are lessees for term of life or years. 2 Inst. 145. It was doubted, whether the tenant by the courtesy (not being a farmer, i. e. a lessee,) was intended to be restrained either by the common law or by the statutes, as his estate came into existence, by having issue during the life of his wife, so that, at its origin, he had power to commit waste. He was, however, expressly restrained by Stat. of Glocester 6 Edw., 1 Ch. 5. But neither of those statutes expressly mentioned devisees for life. The general statute of devises was not enacted till the 32 Hen. VIII. They were only allowed at that time, except in Kent, and in some ancient boroughs and manors. Yet it was holden that a devisee for life, though not expressly mentioned, was punishable for waste, as being within the equity of the statute. Bac. ab. Waste, H. pi. 12. “ The writ against a devisee may suppose it ex legatione, for it is within the equity of the statute.” Br. Waste, pi. 132. And such is the law of England to this day, though devisees are not mentioned in any statute regarding waste. When it is intended the devisee for life shall have power of committing waste, it is usual in devises to confer it in terms. See Ambl. 504; 1 Cruise Dig. 85, 86. There was no necessity in our statute to mention them in the exception, because the power of the devisor over his estate, conferred on him by the statute of wills, would necessarily enable him to enlarge at his pleasure the power of his devise for life.
    II. If we take the ordinary rules of interpretation, the general prohibitory words in this statute guide us but to one conclusion ; and although the word “ contract” may ordinarily have a more restricted signification, yet it cannot control the larger expressions of the prohibition. Dwar. on Stat.,p. 704, (side.) “ And when words are at the beginning of a sentence they may govern the whole,” &c. Dwar. same page.

      Beach and C. Ives, contra.
    I. The town of Hamden has no title to the property, where the alleged waste was committed. The will attempts to vest in the plaintiffs an inalienable estate in perpetuity. 2. The repairing of highways and bridges is not a public arid charitable use, within the meaning of our statute. It must be both public, and charitable, to be valid. 3. A devise to a charitable use, to be valid, must be made to a permanent corporation,- capable of taking and discharging the trust. A town is only a quasi corporation. Its limits, and therefore its identity, may be changed at every session of the legislature. 4. The devise is indefinite, uncertain and therefore void. It does not specify the location of the roads and bridges to be repaired.
    II. The facts, found by the court, impose no liability upon the defendants. 1. It must be conceded that, prior to the statute of 1840, the action could not have been sustained. Moore v. Ellsworth, 3 Conn. R., 483. Randal v. Cleveland, 6 Conn. R., 329. 2. The statute, in restricting tenants for life, created by acts of the parties, refers to tenancies created d j contracts in the nature of leases. 3. Here the only question is, what was the intention of the testator ? and it is evident his intent was that his widow should derive her support from the use and improvement of the estate, without impeachment of waste. Wilford v. Rose, 2 Root., 20.
    III. In order to constitute waste there must be some permanent, lasting injury done to the reversionary estate. 2 Bl. Com., 284. There was no fact in this finding from which the court can infer such damage.
    IV. It does not follow because damage to the amount of $253.50 has -been done to the land, that the reversionary interest of the plaintiff therein has been injured to this extent.
   Ellsworth, J.

It has been objected to the plaintiffs’ right to recover, that they have no title to the premises in question, because the property is given in perpetuity, and is inalienable. By our statute, respecting lands, Tit. 29, Ch. 1, § 3, p. 629, it is provided “ that lands, tenements, or other estates, that have been or shall be given, or granted, for the maintenance of the ministry &c., and for any other public and charitable use, shall forever remain to the uses to which they have been or shall be given or granted.” The gift, in this instance, is in these words; “ all the interest of said property to be laid out in repairing highways and bridges annually, and not to be expended for any other use.” We do not stop to consider whether the words “ public,” and “ charitable” as used in the statute, do not mean substantially the same thing; for we are satisfied that this devise is, in its character, both public and charitable. The object of the devise is to confer a public benefit; something beneficial and necessary to all persons indiscriminately, quite as much as gifts to institutions for learning, or religion, or to the poor and helpless. Besides, the word “ charity” had, at the time this statute was passed, a well known and acknowledged meaning in the English courts, for we find its use in statutes as early as Elizabeth, if not before, and certainly earlier than the settlement of this country. Grants to support bridges and highways were held not to be within the statutes of mortmain of Henry VIII., because of their public and charitable' character, as we learn from Porter’s case, 1 Coke, 26, to which case Lord Coke adds this note ; “ that any man at this day may give lands, tenements and hereditaments to any person &c., for the finding of a preacher, maintenance of a school, relief and comfort of maimed soldiers, sustenance of poor people, reparation of churches, bridges, and highways, for education and preferment of orphans,” &c. These are all the classes of uses which the statute names. Whatever obscurity may rest on the law of public charities, before the statute of Elizabeth, that statute is now considered the principal source of legal charities and has become the general rule of charities so that no uses in England are to be considered charitable and entitled, as such, to the protection of the law, except such as fall within the words, or obvious intent, of the statute. Sir William Grant has observed that the word charity” in its widest extent, denotes all good affections men ought to bear towards each other, and in its most restricted and common sense, relief of the poor. For in neither of these senses is it employed in the court of chancery ; there, its signification is chiefly derived from the statute of Elizabeth. See a very learned note, inthe appendix to 4 Wheat., § 1. The same doctrine is laid down by the Master of the Rolls in James & wife v. Allen, al. 3 Mer. R., 16—so in Com. Dig., under tit. “ charitable uses,” no. 1. bridges, ports, havens, causeways, churches, sea banks, and highways, are classed, and grants for them are permitted as public charities. The same classification exists in 2 Sto. Eq., p. 390, § 1138—p. 411, § 1161. In Cogshall v. New Rochelle, 7 John. Ch., Chancellor Kent decided, that a legacy for the purpose of erecting a town house for transacting town business, was a charitable bequest.

In several of the states, the statute of Elizabeth has been recognized in their courts as the law of public charities, as may be learned from the appendix in 4 Wheat., and from the case of Vidal & al. v. Girard’s Executors, 3 How., 150. Upon the most careful examination and reflection, we cannot entertain a doubt, whether we look at the principle of the cases, or the settled law in England, or the decisions in this country, that the use in question is one of a public and charitable character, which our statute allows to be continued in perpetuity.

It is further said, that the statute law of 1840, p. 150, does not extend to an estate, held by such a 'title as the one in question, and therefore the tenant for life is not liable for waste to the remainder man. It is certain, that Mrs. Brooks, under whom the defendant defends, has a clear life estate in the premises and nothing more, and if this were all, the defendant has a perfect defence to the action. But this estate of hers is created by the act of the parties, and is not an estate created by the act of law, as an estate by curtesy, or dower; and therefore it becomes necessary for the defendant to show that Mrs. Brooks is authorized by the devise, under which she has her estate, to do these acts which otherwise would be waste by the statute. But this is not attempted to be done, and the only defence made is, the devise is not a contract, under which she holds her interest; so that a will, which we know, is the most usual mode of creating a life estate, is just the very mode that is not reached by this statute of 1840. This would be strange indeed and, we should exceedingly regret to be compelled to give our sanction to this construction of the law. Besides it is an elementary principle that estates accrue to the owner, by act of the law, or by purchase, and as this estate did not accrue by the former, it did by the latter. We think if Mrs. Brooks does not hold, as a purchaser, she does not hold at all, and if by operation of law, then certainly she cannot commit waste.

It is again said, that the case made for the advice of this court, does not show that any injury has been done to the freehold, or the remainder which is vested in the plaintiffs. On this point, it is certain that the facts are not as fully presented as they might and should have been, but the object of appealing to this court is for a totally different purpose, or the case would never have been brought here; for if it be true that the interest in the remainder is not injured, the plaintiff can have no action at all, and why, then, is this point of law raised for the advice of the court? It appears that the defendant has purchased, and cut, and removed from the land, divers forest trees thereon growing, of the value of $253.50. This constitutes an injury to the remainder, and is enough to sustain the allegation of waste and injury to the land. As however, it is possible that the attention of the court was not called to an apportionment of the injury between the two interests in the estate, the life estate, and the remainder, we shall advise the superior court to re-examine this point, and allow the plaintiffs to recover, only to the extent of the injury to their specific interest.

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

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

Judgment for the Plaintiffs.


text:
    Hall vs. Hall.
    A writ of replevin cannot be sustained against the impounder, to obtain the restoration of animals, lawfully impounded, under the act relating to the restraining of swine, (Rev. Stat. Tit. 3, Oh. 7, § 97,) but which, without his knowledge, the pound-keeper, after a tender of the poundage fees, unlawfully detains.
    The pound-keeper, in such case, is not the agent of the impounder.
    This was an action of replevin, brought originally before a justice of the peace, for taking, and impounding nine pigs.
    The cause having been appealed to the county court, for the county of New Haven, at the term of said court holden in December, 1854, the defendant avowed the taking as follows:
    “ And the defendant comes into court, and well avows the taking of said swine, in said declaration mentioned, and justly, because he says that the place in which, &c., was a public highway in said town of Wallingford ; and because said swine were going at large in said public highway, by the sufferance and permission of the said Henry F. Hall, plaintiff, he, the defendant, well avows the taking of said swine, and justly,” &c.
    The plaintiff replied, “ that after the taking of said swine, and after theimpounding the same,to wit, on the same day and year in the said declaration mentioned, he, the plaintiff then offered and tendered to the keeper of the pound, in which such swine were impounded, the sum of one dollar and eight cents, being the sum of twelve cents for each and every swine, so impounded as aforesaid, and so unjustly detained as in said declaration as aforesaid, as poundage for the same, and which was then and there sufficient poundage for the same, and the said keeper of said pound then and there wholly refused to accept said sum from said plaintiff’, and unjustly detained the said swine in manner and form as the plaintiff hath above thereof complained against said defendant, and this the said plaintiff is ready to verify. Wherefore, inasmuch as the said defendant hath above acknowledged the taking of the said swine in the said place in which &c., he, the said plaintiff, prays judgment, and his damages by reason,” &c.
    To the plaintiffs’ replication, the defendant rejoined “ that the refusal of said pound-keeper to accept said sufficient sum for poundage, so tendered to him by the plaintiff, and said wrongful detention of said swine, by said pound-keeper, after the tender of said sum, was without the knowledge or consent of the defendant.
    To this rejoinder, the plaintiff demurred generally. The county court sustained the demurrer, and rendered judgment in favor of the plaintiff.
    The defendant, by motion in error, then brought the case before the superior court, where the judgment of the county court was reversed, and thereupon, by motion in error, the cause came before this court.
    Doolittle, in support of the motion.
    1. When the owner has tendered all that can be lawfully demanded of him,he is, of right, entitled to the possession of animals detained in pound. He is not to resort to trespass, or trover, because the statute has given a complete remedy, which is replevin, by which he regains possession of his animals, when unlawfully withheld from him in pound. It is the unjust detention, of which the plaintiff complains, and which is the gist of the action. He cares not whether the taking was tortious, or not. He has tendered his amends, and it is the unjust detention, after tender, that he complains of. The possession is wrongfully withheld from him, and for this wrong our statute furnishes a remedy. But, by the English law, replevin was always maintained in cases of distress, where the original caption was lawful, if there was an illegal detention, the only exception to the general rule. Fitz» herbert Natura Brevium, 69. Baron Gilbert, on replevin, says this is the only instance where replevin lies, when the original taking was not tortious. Hammond, in his Nisi Prius says (p. 334,) the same thing, and assigns the same reason viz: replevin is the proper action to try all questions arising out of a distress. Six carpenters’ case, 8 Coke, 146. Pilkington v. Hastings, 5 Coke, 76. Sel. N. P., 1194. That replevin lies for a wrongful detention merely, has been decided in the following cases. 1 Dali., 157. 2 Binn., 2. 16 S. & R., 300. 15 Mass., 359-362. 5 Mass., 284. 4 Green., 306. 2 Fairfield, 28, 31. E. C. L. R. 302.
    2. If these claims are unfounded, then the defendant is a trespasser, ab initio. The pound keeper, an officer of the law,retaining the legal custody of those animals, acted as the agent of the defendant. We are not obliged to tender fees to the defendant, but to the agent whom he has selected, and entitled to receive the money in his behalf. Stat. 184, 11 Green. Ev., 557. Browne v. Powell, 4 Bing., 230. 5 T. R., 246. Replevin does not lie against the officer attaching property against the express commands of the plaintiff, but against the plaintiff, so in this case it lies only against the party impounding. 18 Conn. R., 550. 20 Conn. R., 343. The party, having, by his agent entitled to receive fees, refused lawful fees, is a trespasser, ab initio.

    If the defendant had impounded these animals in an adjoining town, he would then be a trespasser ab initio, although the original caption was lawful. Replevin lies only against the impounder. 5 Cush. R., 263.

      Wright, contra,
    contended that the defendant was neither guilty of a tortious taking, nor of an unlawful detention of the swine impounded.
    1. At- common law, in this state, no action of replevin could' be maintained. The action of replevin is, by statute given, subject to all the incidents and principles that govern this action at common law, except so far as the statute has altered the mode of procedure. Ladd v. Prentice, 14 Conn. R., 109. Rev. Stat. 140, § 253 to § 259.

      Replevin does not lie at common law, nor under the decisions of this state, unless the taking be tortious and unlawful. Marshall v. Davis, 1 Wend., 109. Pangburn v. Patridge, 7 Johns. R., 141. Hopkins v. Hopkins, 10 Johns, R., 373. Button v. Thompson, 14 Johns. R., 86. Daggett v. Robbins, 2 Black., 415. Miller v. Adsit, 16 Wend., 335. Bruen v. Ogden, 6 Halst., 370. Bowen v. Hutchins, 18 Conn. R., 550.

      2. The statute, in the forms prescribed for replevin, both for beasts impounded and goods attached, charges the unlawful impounding, and unlawful taking. These allegations are not formal and fictitious, but substantive averments, which may be specifically denied and which require specific proof. Rev. Stat. 141, 143, § 256, 264, and by § 263, the defendant is summoned into court, to answer only to the unlawful taking.
    4. But if replevin would lie for the unlawful detention in this case, that detention is not by the defendant, but by the unauthorized act of the pound-keeper, and without the defendant’s knowledge, or consent. The relation of principal and agent does not exist between the pound-keeper and the defendant. The latter had no discretion as to the place of impounding, and he has therefore complied with the law.
   Hinman, J.

The plaintiff’s swine, found running at large in the highways in the town of Wallingford, were taken up by the defendant, and impounded under the 97th section of the statute, relating to communities and corporations, p. 184 of the Ed. of 1854. Afterward, while the swine were, in pound, the plaintiff tendered to the keeper the statutory fee of twelve cts. for each swine so impounded, and demanded of him their restoration, which was refused by the pound-keeper, without the knowledge or consent of the defendant, whereupon this action was brought. On these facts, which appear by the pleadings, the superior court held the defendant not liable, and we think the decision was correct. In Bowen v. Hutchins, 18 Conn. R., 550, it was held that replevin would not lie against an officer alone for attaching goods, in favor of a claimant, not a party to the attachment, but the suit must be brought against the attaching creditor. The object of that suit was the same as this,—to procure the restoration to the owner, of property which had been taken into the custody of the law; and the defendant here sustains much the same relation to the swine,'that the officer did to the property attached'. The only difference is, that, in the case of the attachment of property, the attaching creditor is the party to be sued, and the officer is not liable, unless he has made himself so, by some wrongful act in the execution of his process. Here, there is no party back of the defendant to protect him from a suit, but his authority to take, and impound the swine under the statute, is as ample as that of the officer under his process, and so long as he keeps within the authority, under which he acts, there is no justice in subjecting him to damages, for the wrongful act of .the pound-keeper.

It was said in the argument, that the pound-keeper was the defendant’s agent,—that he was selected by the defendant, and therefore the defendant was liable for his acts. But this is not so. The statute provides that the selectmen shall erect, maintain, and keep in repair, a good and sufficient pound, or pounds, &c. Rev. Stat., 181. When there is but one pound in a town, the impounder has no discretion whatever, as to the place where he will confine animals impounded, and at most, he is restricted to the two or more pounds which may happen to be in the town ; and to make him liable for the acts of such a public officer, whom he was bound to employ, would obviously be unjust. It is true, undoubtedly, that the plaintiff was entitled to his swine ; the pound-keeper having no right to retain them, after all that he could demand was tendered to him. But we think the remedy should be sought for against the party, who was in the wrong, and not against the defendant, who has done no wrong. We therefore find no error in the judgment complained of.

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

Judgment affirmed.


text:
    The State vs. Randolph.
    The offence of being a common prostitute, referred to in the fifty-third section of the third chapter of the act concerning prisons, (Rev. Stat. Tit. 4, Ch. 3, § 53,) is not an infamous crime.
    The record of the conviction of such offence is not admissible on the trial of a cause, for the purpose of impeaching a witness who has testified.
    The proper enquiry to be made of an impeaching witness considered.
    This was an indictment against the prisoner, Isaac Randolph, for murder.
    The cause was tried at New Haven, before the superior court, October term, 1855.
    On the trial, Maria Tuttle and Delia Sayres were offered as material witnesses, and testified in behalf of the state. For the purpose of affecting their credibility,' the defendant offered in evidence a record of a court holden by a justice of the peace, for the county of New Haven, showing that they were convicted of being common prostitutes, under the fifty-third section of the third chapter of the act concerning prisons. To this evidence, the attorney for the state objected, and the court sustained the objection, and excluded the evidence. The jury having found the prisoner guilty, he moved for a new trial, on the ground of the decision of the judge above stated.

      Eeese, in support of the motion.
    The enquiry, on an impeachment of the witness, should not be restricted to his character for truth and veracity, (although this is the true and primary enquiry,) but the general standing of the witness in the community is properly a subject for investigation. Hume v. Scott, 3. A. K. Marshall, 1 Hill So. Car. Rep., 251, 8, 9. State v. Boswell, 2 Dev. Law Rep., 209-10. Green. Ev., Vol. 1, § 461, note. People v. Mather, 4 Wend., 257-8.
    2. Evidence, therefore, that a female witness has been convicted of being a common prostitute, is admissible for the purpose of affecting her credibility, upon general principles, Commonwealth v. Murphy, 14 Mass. R., 387. 2 Stark. Ev., 369, note (1.)

      Foster, (state attorney,) against the motion.
    At common law, the credit of a witness can be impeached, by general evidence only, and not by evidence as to particular facts. 1 Stark. Ev., 181. Sw. Ev., 143. 1 Green., 599, § 461, 601, note. Rosc. Cr. Ev., 76, 181. Philips v. Kingsfield, 1 App., 375. State v. Bruce, 11 Shep., 71. 13 Johns., 504. Morse v. Pinneo, 4 Verm., 281. State v. Smith, 7 Verm., 141. Spears v. Forrest, 15 Verm., 435. U. S. v. Van Sickle, 2 McLean, 219-325. 6 Black. 1. 4 Watts, 380.
    The provision in the statute (Rev. Stat. Tit. 43, Ch. 3, § 5,) does not reach this case. That simply renders competent such as, by reason of conviction of infamous crime, were incompetent to testify in a court of justice. The provision that the conviction of the witness may be shown in evidence, applies only to that class of crimes, which rendered the witness infamous in law. This is not such a crime. At common law, the only felonies were murder, manslaughter, treason, arson, burglary, robbery, rape, sodomy, mayhem, larceny. 1 Hale, 703. 1 Hawk., Ch. 40-52. 1 Greenl. Ev., 492, § 373.
   Ellsworth, J.

By a certain statute law of the state, it is provided, that sturdy beggars, vagabonds, vagrants, night-walkers, and, among others, drunkards and common prostitutes, may be sentenced to the work-house for a period, not exceeding sixty days. Maria Tuttle and Delia Sayres, being witnesses, and having testified against the prisoner, his counsel offered in evidence a copy of the record of a judgment, by justice Bennet, of their conviction, under the statute, as common prostitutes, and claimed to read it, for the purpose of discrediting their evidence. The court refused the offer, and it is this refusal, which gives rise to the present question.

It was faintly contended by the prisoner’s counsel, that the offence of the witness was an infamous crime, crimen falsi, at the common law, and so, at the common law, the witness should be excluded entirely from testifying, and as, by our recent statute, no infamous offence would entirely disqualify the witness, the record of his conviction must be received, to go to his credit. It is not perfectly clear, what offences fall within the class of crimen falsi, but a sufficient approximation to a general rule has been established, to perceive, that the offences, mentioned in the statute above recited, do not come within any rule hitherto recognised by our courts. In Green. Ev., vol. 1, § 373,;itis said, that persons are infamous, who have been convicted of forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the absence of a witness, or to accuse one of a crime or barratry. So far the courts have gone, and from these decisions it may be deduced, that the crimen falsi of the common law not only involves the charge of falsehood, but also is one, which may injuriously affect the administration of justice, by the introduction of falsehood and fraud. In Utley v. Merrick, 11 Met., 302, the court held that a conviction for obtaining goods by false pretences, would not disqualify a witness. In 2 Steph. N. P. 1721, 2, there is an enumeration of many offences, conviction of which, renders a witness incompetent, and some of which do not, but neither there, nor elsewhere, do we find that licentiousness in either sex is crimen falsi. Publishing a malicious libel is not; Charters v. Hawkins, 3 Lev., 426; nor is bigamy, Bul. N. P. 292; nor is conspiracy to defraud, Ville de Varsovie, Dods. R., 274. Crowther v. Hopwood, 3 Stark. R., 21, nor would be; by parity of reasoning, gambling, or horse-racing, or drunkenness, or profanity, or the like. The same rule is laid down in Phil. Ev., 211. Peak. Ev., 134, 2 Stark. Ev., 715, and other books.

Now, in order to attack the character of a witness, who is admissible at the common law, and who testifies in the cause, it is universally agreed, you cannot go into particular facts, but must enquire after character; for every man is supposed to be able to support his general character, though he may not be «able, without motive, to disprove, or explain every fact that may, at the moment, be brought against him ; and such collateral issues too, would greatly embarrass the progress of the trial. According to this rule, the record in question could not have been received, for it does not go to reputation at all, but to a simple fact, the licentiousness of the witness ; nor is the conviction founded on reputation, but on proof of the fact, as in other cases of crimes. Certainly, had there been no conviction, evidence of the facts, upon which the conviction was obtained, would not be admissible, and why then the record, since character is the only thing to be enquired after.

Another subject has been discussed, respecting which there is a diversity in the practice of the courts of justice. We mean, the proper question to be put to a witness, who is called to impeach the character of another witness. One thing however is obvious, that in all courts, whatever be the form or extent, of the enquiry, the thing aimed at is one and the same, the character of the witness for truth; and where the question assumes a more general form, it is allowed only for its supposed bearing on the truthfulness, or the reverse, of the witness ; his character for truth is all that is pertinent and material to the point, and all that the jury should enquire after; other facts, other offences, tried or untried, not being crimen falsi, have no bearing upon the enquiry whatever, and should not be brought into the case. In the English courts, the enquiry is in this form; “ are you acquainted with the character of the witness ?—what is his general character 1—would you believe him under oath ? As a general rule of practice this has been found satisfactory in that country, and elsewhere, and doubtless would be so here, if our courts had not, at an early period, adopted a different rule, which has proved to be satisfactory and sufficient, and which we are not willing, at this late day, to abandon for another, certainly not better, if as good. The more general enquiry in England is adopted, as we have said, to learn the witness’ character for truth; ours is adopted for the same purpose, but is more single and direct. In our courts, the enquiry put is, “ is the character of the witness for truth on a par with that of mankind in general ?” The English rule has this advantage, that it brings the general character of the witness before the triers, which is important, where the witness has not acquired a specific character on the subject of truth, and hence it is urged, with some force, that, in such a case, the general enquiry is essential, for no other will reach the case; and further, that testimony of the impeaching witness, that, from his acquaintance with the witness’ character, he would, or would not, believe the witness under oath, will throw light on the credit, and standing of the witness. We do not deny that there is much good sense in this course of reasoning, but on the other hand, our rule, proceeding upon the same idea, goes to the question of truth at once, nor does it leave anything to the mere inference of the impeaching witness, whether he would, or not, believe the witness under oath. By our rule, he states the premises, or character for truth, from which he draws the conclusion, and as, in other eases, leaves the triers to draw their own inferences. And it is further said that the opinion of an individual is not always the safest rule of judgment for others, as it may have been formed under sinister influence, and may take its character from the peculiar notions, or prejudices of the witness himself. On the whole, both rules are well enough, and have proved satisfactory, wherever they have prevailed.

In Green. Ev., § 461, it is said that “ the regular mode of enquiring into the general reputation, is to enquire of the witness, whether he knows the general reputation of the witness in question among his neighbors; what that reputation is; and whether, from such knowledge, the witness would believe the person upon his oath. In answer to such evidence, the other party can cross-examine the witnesses, as to their means of knowledge and the ground of their opinion. The English rule as thus laid down by Greenleaf, has been practiced upon in several of the states of the union, while in others a more restricted and specific one has been preferred. Cow. note 531, in Phil. Ev., 293. This entire subject has been so often discussed in our courts, and is so familiar to the profession from our earliest practice, that we forbear to dwell longer on the topic. Our enquiry is, “ are you acquainted with the character of the witness ?”—if the witness says yes, then the further enquiry is put, is his character for truth and veracity equal to that of mankind in general ?” These may be followed by proper cross-questions, to test the witness’ means of knowledge and his accuracy and honesty. Beyond these enquiries, as questions in chief, our courts have not had occasion to proceed, and whether we ought to go further, and allow the English questions to be put to the witness, has not been decided, certainly not in this court, although we believe it has often been done on the circuit. General bad character is undoubtedly a serious blemish in a witness, and might justly detract from the weight of his testimony, and so might the character of a witness for the specific blemish of licentiousness, especially in the female sex. But where shall we stop the enquiries ? Witnesses, who can have no opportunity to exculpate themselves, or give explanations of their acts, ought not to be exposed to unjust obloquy, nor should the trial be complicated and prolonged by trying collateral issues. If it were wise and just to enquire for one’s reputation for virtue, why not for gambling, horse-racing, drunkenness, sabbath breaking, &c. ? These are serious blemishes on character. Now the general enquiry in the English courts, and the more limited one in ours, is free from the objections to specific acts, or the character of specific habits, which, if allowed to be proved, would be very uncertain in effect, for they would be differently estimated and viewed by the triers, and hence, general character, which every witness is supposed to be able to establish, whenever attacked, is held to be all that is necessary or proper. For a more full and satisfactory discussion of these questions, we refer to an elaborate opinion of McLean, J., in United States v. Vansickles, 2 McLean R., 223. See likewise Peo. v. Herrick, 13 Johns., 84. Hume v. Scott, 3 Marsh., 260. Sw. Ev., 1. Spear v Forrest, 15 Verm., 435. 6 Black., 1. Commonwealth v. Murphy, 14 Mass. R., 387. In the latter case, the supreme court of Massachusetts held, that it might be shown, a witness was the mother of several bastard children, and a common prostitute, but this decision is essentially impaired by a subsequent decision of the same court. Commonwealth v. Moore, 3 Pick., 196, an d is at variance with the entire current of authorities in this country, and in England.

We do not advise a new trial.

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

New trial not granted.