author:
Swift, Ch. J.
      Smith, J. Hosmek, J. Gouim, J.

text:
    Bulkley and others against The Derby Fishing Company.
    THIS was an action on a policy of insurance, on the ship (fiarles, from New-York to St. Bartholomews.

    /fianks and other corporations of a similar nature, authorized by their act of incorporation to contract in a particular mode, may, by a course of practice, render themselves liable on instruments executed fa a different mode.

      Hartford,
    November, 1817.
    The tried at New-liar ( August term, 181 5 cause before Edmond and Smith, .Is.
    On the trial, the plaintiffs read in evidence, a policy corresponding with that declared upon, signed “Canfield GiUet, president,” and countersigned “ Nathan Wheeler, assistant.” It was admitted, that the policy, when delivered to the plaintiffs, was signed and executed in this manner ; that the signatures of 6Ullet and Wheeler, with the respective additions, were genuine ; and that they held the offices in the company, designated by those additions. In the progress of the trial, the defendants objected to the policy’s being permitted to go to the jury as evidence, because it was not countersigned by Samuel J. Andrews, who, it was admitted by the plaintiffs, was the secretary of the company at the date and delivery of the policy,  To obviate, this objection, and to shew that the defendants had adopted the policy, the plaintiffs offered to read the correspondence between the parties, at the time of effecting the insurance ; the notes given for the premium by the plaintiffs to the defendants; the book of records of policies of insurance on vessels, kept by the defendants, in which were recorded two or three policies, attested by the clerk of the company, and not by the secretary, and a number of others, signed by the president, and countersigned by the assistant, like the policy in question ; and the, registry of the policy by the secretary of the company'. The correspondence referred to consisted of — ,1. a letter from the plaintiffs, addressed to the defendants, enquiring what would be the rate of premium for insurance on the ship Charles, from New-Fork to St. Bartholomews, staling the condition of the ship, &c. ; 2. a letter in reply, stating the terms, signed “ Samuel J. Andrews, secretary 3. a letter from the plaintiffs, addressed to the president of the company, say ing that they, the plaintiffs, would take the insurance, provided the company would return 5 per cent, in case the ship returned without loss ; 4. a letter in reply, saying that the directors wouN not recede from the terms previously offered, signed “ Samuel J, Andrews, secretary and 5. a note from the plaintiffs, dosing with those terms. The defendants objected to the admission of this evidence, for the purpose stated ; and the court rejected it. There being no other evidence on the part of the plaintiffs, the court directed the jury to find a verdict for the defendants ; which they accordingly did. The plaintiffs moved for a new trial, on the ground that the evidence offered by them was improperly rejected j and the questions arising thereon, were reserved for the consideration and advice of the nine Judges.

      Baggett and Staples, in support of the motion.
    They referred to 2 Bac. Mr. 13. (Owil. edit.) Banforth v. Scho-harie and Duanesburgh Turnpike Road, 12 Johns. Rep. 9.9,7. 230, 1. Spear <$• al. v. Ladd, 11 Mass. Rep. 94. Hayden ⅝ al. v. The Middlesex Turnpike Corporation, 10 Mass. Rep. 397. 400 Sf seq.

    JV*. Smith and Bristol, contra.
    They cited Head and Jhnory v. The Providence Insurance Company, 2 Crunch 197. 166 Sf seq. Beatty v. Marine Insurance Company, 9 Johns. Rep. 109.114.

         The act authorizing the company to pursue the business of marine insurance, provides, that “ all policies of insurance made by said company, signed by the president, or in his absence, by the assistant, and countersigned by the secretary, shall be binding on said company according to the terms and tenor thereof.” 1 Slat. Ctmn. tit, 70, c. 11. s. 1.

   Swift, Ch. J.

In the acts constituting banks and other corporations, regulations are made with regard to the mode in which they are to transact their business, and render their engagements obligatory. To enable them to enforce the engagements made for their benefit, they must act within the scope of their authority, and conformably to the directions of law.

In all cases, where banks, and similar corporations, conform to their charter, their acts are binding on them. So in cases where they do not conform literally to their charter, they may be liable. Suppose a banking corporation should, by a vote, agree to issue bills in a different form, or with different signatures, from those prescribed ,• they would, by their own act, be rendered liable to pay them. / If such a corporation, without a vote, should introduce a usage and practice in the transaction of their business different from that prescribed by law, they would, by the same reason, he rendered liable. For though such conduct might be improper in itself, yet the bank cannot take advantage of their own wrong to avoid their contracts, it cannot be supposed, that in general, those who dealt with them had knowledge of their deviation from the charter regulations ; and it is to be presumed, that they act according to law. If it be admitted, that banks may thus deviate, and then avoid their contracts, they would be enabled to practice the grossest frauds on the community ; especially, in a country where there is such an immense number of monied institutions as in this, and where it is practicable for very few to know the extent of their powers and regulations. | Banks, like individuals, must be liable in the character which they hold out to the world j and whatever may be the forms of their obligations, if they are according to their charter, their corporate votes, or their known usage and practice, they ought to be binding.

A corporate act is not required in all cases. It is sufficient if there be a usage and practice under such circumstances as may be presumed to be within the general knowledge, and by the consent of the company. yíNor can the stock-holders, or members of the company, be subjected to any inconvenience or damage. If any officer, vested with certain powers, should, in any instance, violate them, and attempt illegally to subject the corporation to any obligation, such corporation may instantly, on the discovery, disavow the act, and prevent a repetition. And then, as there will be neither law nor usage to sanction the transaction, it will not be binding. But1 where the corporation will suffer such practice to continue, it is to be presumed, that it is done with their consent, arid be made obligatory on them. ^ In the present case, it appears to me, that the evidence offered conduced to prove, that it was the usage and practice of this company to underwrite policies of insurance, and draw bills of exchange in the form now under consideration; and, of course, that it ought to have been admitted. Whether the evidence offered would have been sufficient to have satisfied the jury of the fact, is not now the question. We have only to decide on the relevancy; the jury must decide on the sufficiency of the testimony.

I am of opinion, that a new trial ought to be granted.

Thumhui.Ii, J . was of the same opinion.

Edmond, J. dissented.

Smith, J.

dirt not agree witn the Chief Justice on the ground taken by him, but acquiesced in the result, that a ¡sew trial ought to be granted, mi the ground that the secretary hart, in his correspondence with the insured, agreed to 1 lie policy in question, as expiiciily ami as fully, as though he hart signed the policy itself ; and has! thereby afforded ail that safety to the company, which the statute contemplates. Besides, his having afterwards registered the policy, is, of Itself, a strong evidence of his approbation.

Brainakd and Goddahd, Js. concurred in the opinion given by the Chief justice.

Hosmek, J.

The evidence offered in this case, was rejected, on the ground that the policy ought to have been executed literally pursuant to the charter of incorporation,, More than a century since, the case of Rex v. Bigg, 3 V. Wms. 419. went the full length of deciding, that as against, a corporation, an authority to its agent, different from the prescriptions of its charter, might be implied. Although this decision has, on some occasions, been lost sight of; (2 Crunch 168. 2 Johns. Rep. 114.) yet it has been abund antly recognized by modern determinations, and is unquestionably established. 10 Mass. Rep. 397. 11 Mass. Rep. 94. 12 Johns. Rep. 230.

i consider it to be undoubted law, that a corporation may incur a liability different from the prescriptions of its charter. Like individuals, it is responsible in the manner in v, hick it permits its agents to hold it out to the world. The corporation should disavow the practice, or the usages of their agents in the transaction of business shall be presumed to have their sanction. An authority to contract in a particular mode may be proved by a vote of the stockholders ; and in prevention of fraud and prosecution of justice, it maybe presumed. It may be implied from their acquiescence in the usual mode of transacting the business of the corporation, and expressing no objection against it j for qui non prohibet, cum prohibere possit, jubet. What is usually done by the agents of a corporation, in the transaction of the business confided to them, it is a fair presuroplhm that the stockholders are cognizant of. Although they reside in different places, they have an interest ⅛ acquainting themselves with the proceedings of the corporation. The office where the business is done, is open ; the books of the company are subject to their inspection ; and it would be absurd to suppose them ignorant of those public facts, re-Hating to the ordinary transaction of the corporate concerns, with which mankind in general are acquainted. In short,A every transaction of the comp :n> • established by proof of direct authority from the stnrk'iohFrs, or implied from the usual modes of doing their business, which is not against, law, or a prohibition contained in their charter, is obligatory upon them.

The testimony, in my opinion, should have been admitted ; and because of its rejection, I would advise a new trial.

Gouim, J.

The question is, not whether the evidence, rejected at the trial, was sacli as would have been conclusive upon the defendants ? but whether it was admissible : And ! am clearly of opinion, that it was so.

It is lAservable, that the epmpany are not, in this case, claiming a right, through the agency of an individual, whose authority to act for them is denied, by the adverse party. It is, therefore, unnecessary to inquire, whether, in such a case, evidence, like the present, could be admitted in their favour, or not. Here, the demand is against the company, upon a contract, executed in their name, by Gillet, as president, and Wheeler, as assistant; and both of whom, it is claimed, were the company’s agents for that purpose. But to this claim it is replied, first, that by the terms of the act of incorporation, the company cannot be bound, by any contract, unless it is signed by the president, and countersigned by the secretary ; and therefore, that this policy, not being so executed, does not bind them, even admitting, that Wheeler, as assistant, was, de facto, employed as their agent for the purpose of countersigning. - -

A corporation certainly cannot, by its own act, enlarge its own, capacities, powers, or rights ; but it would be strange to say, that it cannot thus voluntarily incur liabilities. If a corporation, by a corporate act, appoints an agent, under any name or title whatever, for the purpose of making, in its own behalf, any contract, which it has a right to make : can the corporation itself impeach such a contract, made in its name, by that agent, by alleging its own want of power to make such an appointment, or to contract by such an agent 2 The present objection must, to avail the defendants, go to Oils extent. But such a doctrine is in violation of all princi-A corporate body, by transgressing the limits of its charter, may, doubtless, incur a forfeiture of its privileges an(] pOWO!.s . iM,t who ever imagined, that it could thus acquire an immunity, to the prejudice of third persons ? The clause, in which the act of incorporation prescribes the mode of signing, contains no negative words; i. e. no provision that a contract, signed in any other mode than that prescribed, shall not bind the company. It would be highly unreasonable, therefore, to construe that mode as exclusive, to the injury of strangers — especially, as the statute is not, in its nature, a public one, and third persons are, of course, neither bound, nor presumed, to know its provisions. The case ex parte Meymot, 1 Atk. 196. though not in point, contains a doctrine, which, I think, has an important bearing upon the present question. That was an application to the lord chancellor, to supersede a commission of bankruptcy, which had been taken out against the petitioner- — he being a clergyman. The application was founded upon the statute 21 Hen. by which clergymen are prohibited, under heavy penalties, from trading; and their contracts, as traders, are declared utterly void, and of none effect.” Lord Hard-wieke, however, dismissed the petition; and among other things observed, “ If a man, with his eyes open, will break the law, that does not make void the contract. It is, undoubtedly, very improper for a person to say, I have broke the law, and therefore, I am exempt from any remedy, a creditor may have against me.” “ I am inclined to be of opinion, that the contract shall be void, as to the parson himself only ; for it would be a most extraordinary construction of the statute, that the bargain shall be void, for his own benefit; and it would be very mischievous to construe the act in such a manner.” “ Shall the bargain be void, for the parson’s benefit ?” “ This part of the act ought to be so construed, as to make it a penalty on himself only.” This reasoning, I repeat, applies strongly, by analogy, to the question before the court. And if the petitioner, in that case, was bound by his contract, notwithstanding the strong language of the statute of 21 Hen, 8. j a fortiori, it would seem, ought the policy, in the present case, to bind the company, if Wheeler was actually their agent, for the purpose of countersigning — whether the contract was executed in the form prescribed by the act of incorporation, or not.

We come, then, to the second objection made by the defendants, via. that a corporation aggregate cannot appoint an agent, except by deed ; and that therefore, no other evidence, than that of a deed, is admissible, to prove Wheeler’s authority to countersign the policy. The first proposition is generally, though not universally true, as to express authorities ; but it applies to no other. If, then, the plaintiffs were attempting to prove a specific act of the company, expressly conferring upon Wheeler the authority, under which he is claimed to have acted ; the defendants might properly insist, that the fact could be proved in no other way, than by proof of a corporate act. But implied authorities, w hich are almost as familiar in the law, as implied promises, and which rest upon mere presumption, are always proved by circumstantial, or collateral facts j and can be proved in no other way. Usual, or frequent practice, in business, is the ordinary evidence, in such cases. The general principle is, that one person, who, by permitting another to act, ostensibly, as his agent, has given him a credit, with the public, as such, shall, in favour of third persons, be presumed to have authorized the latter to act, in that character, and be precluded from averring the contrary. This presumption is establish-1 cd by proof of usage, or practice : As, that the one has been in the habit of acting in the name and behalf of the other, and that the latter has, either by positive acts, or by acquiescence, impliedly recognized the agency. And the presumption, to be available to any purpose, necessarily embraces all legal requisites to the creation of a valid authority. Hence, a deed, a by-law, or a record, may as well be presumed, as any other fact. The Mayor of Kingston upon Hull v. Horner, Cowp. 102.

It may be objected, that the usage, in this case, not being ancient, can aiford no evidence of Wheeler’s authority. But the rule, requiring a usage to be ancient, to found a presumption, is not in pari materia. When a title, or interest, is to be presumed from possession, enjoyment, or user, lapse of time is essential. But that rule has a different object, and is founded upon different principles, from any, involved m tii* present cju< s-umi. It is designed to quiet Jong and uninterrupted possession, enjoyment, or user, by discouraging state and dormant claims ; and can have no application at all to questions like the j-yc,:rnt.

But bow, it is asked,; an tlie usage of a corporation, which is an invisible body, existing only in contemplation of law, be proved, or even known ? I answer, by the acts of its officers, or acknowledged agents, in the management of its ordinary concerns. This point was conceded by counsel, and deckled by the court, in Rex v. Bigg, 3 P. Wms. 419. j and in the case of The Mayor of Kingston upon Hull v. Horner, thi-. species of evidence was admitted to establish a claim, in fa-vour of a corporation. Now, the evidence offered in the present case, whether sufficient to prove the fact, or not, ceWaiidy conduces to prove, that Wheeler was in the habit ol countersigning contracts, as agent for the company ; that his acts, in Unit character, have been recognized, as valid, by the proper officers of that body; and that the corporation, knowing, or having, in its own books and records, the means of knowing, the fact, has acquiesced in his agency, and in the present instance, taken advantage of it, by retaining the premium note,

I am, therefore, clearly of opinion, that the evidenc* should have gone to the jury ; and that a new trial ought to he granted.

Baxifwik, J. gave no opinion, being interested in the funds of the Derby Fishing Company.

New trial to be granted.


source: Caselaw Access Project

author: Swift, Ch. J.

license: Public Domain

text:
    Witte against The Derby Fishing Company.
    Banks, and other corporations of a similar nature,author-ized by their act cf incorporation to contract in a particular mode, may, by a course of practice, render themselves liable on instruments• executed in a different mode.
    THIS was an. action against the defendants, as .drawers of a bill of exchange.
    The cause was tried at Mew~Haven, August term, 1817, before Edmond and Smith, Js.

      Hartford,

    November, 1817.
    On the trial, the plaintiff read in evidence, a bill of exchange, which was as fallows : “ Exchange for 4501. Sterling. Derby, Connecticut, 7th July, 1814. At sixty days sight of this first of exchange, (second and third of the same tenour and date not paid,) pay to the order of Messrs. Lawrence Sf Whitney, four hundred and fifty ponds, sterling, value received, which place to account of the Derby Fishing Company, with, or without, further advice.

      Canfield Gillet, President.”

      Samuel Williams, Esq.
    Merchant, London”

    This bill was indorsed by Lawrence 8f Whitney to the plaintiff; and was afterwards regularly presented, and protested. The plaintiff then offered to prove, that Gillet had, in many instances, draw n and accepted, for and in behalf of the company, and with their approbation, other bills of exchange, signed only by him as president. To the admission of this evidence the defendants objected; and before any decision thereon, it was agreed by the parties, that the cause should be continued, and the question of law submitted, in the meantime, to the nine Judges, for their advice.

      Daggett and Staples, for the plaintiff.
    JV*. Smith and Bristol, for the defendants.

         By the act of incorporation, it is provided, that * all notes and contracts, signed by the president, and countersigned by the secretary, shall be binding on said corporation, according to the terms and tenour thereof.” 1 Stat. Conn, tit. ?Q> c. 10, s. 8.

   Swift, Ch. J.

The question submitted to ns in this case, depends upon the same principle, as the preceding case of Bulkley and others against these defendants ; and I should advise, that the testimony offered, is admissible.

In this opinion, the other Judges severally concurred, except Baldwin, J. who gave no opinion, being a stockholder in the company. The Judges who dissented from the opinion of the majority in the last case, after that case was decided, considered this as governed by it.


author: Swift, Ch. J. Hosmee, J. (íotjIíD, J.

text:
    Escopiniche against Stewart.

      Hartford,

    November, 1817.
    If on a contract to transport goods on freight to a certain place, die voyage is performed in part, and the goods are carried to a different port, where the owner voluntarily accepts them, such acceptance is the foundation of a new contract, which the law implies, to paj the stipulated freight for the whole voyage in proportion to the part performed before the vessel stopped, or deviated from her course.
    THIS was an action of assumpsit for the freight of thirty-nine casks and sixty bags of rice from New-London to the West-Indies. The declaration consisted of two counts. The first count stated a contract, on the part of the plaintiff, to transport the rice to Antigua, in the West-Indies, and on the part of the defendant, to pay 441 dollars for the freight. The second count stated, that the plaintiff, at the special instance and request of the defendant, received the rice on board to transport the same, for the defendant, to the West-Indies for a reasonable freight ; that he transported the rice thither accordingly ; and that a reasonable freight amounted to 450 dollars.
    The cause was tried at New-Haven, August term 1817, before Edmond, Smith, and Baldwin, Js,
    On the trial, the plaintiff produced evidence to prove, that he was master of the brig Hector ; that, at the time stated in the declaration, he, at the defendant’s request, took on board the Hector, from the Ramilies, a British sloop of war then lying at New-London, the goods mentioned in the declaration, upon an agreement with the defendant to transport them to the island of Bermuda, for the sum of 441 dollars ; that before the plaintiff arrived at Bermuda, he was taken and carried into Antigua, a place farther from Bermuda than New-London, with the rice on board ; that immediately after the arrival in Antigua, and before the vessel was libelled or condemned, the agent of the plaintiff took the rice from the vessel, and sold it, and remitted the avails to the defendant then at Bermuda, who received and kept the money. The plaintiff also proved to the jury, that 9 dollars per cask, and 1 dollar 50 cents per bag, was a reasonable and the customary freight of rice, at that time, from New-London to Antigua. Upon these facts, the plaintiff contended, that he was entitled to recover such reasonable and customary freight. The defendant insisted, that they laid no foundation for a recovery upon this declaration. The court charged the jury, that if they were satisfied from the evidence, that the plaintiff received the rice on board the brig in the manner stated ; and that immediately after its arrival in Antigua, the defendant’s agent received it, and sold it, and remitted the avails to the defendant at Bermuda ; and that the defendant accepted and retained the money ; the plaintiff was entitled to recover a reasonable compensation as freight to Antigua. The jury returned a verdict for the plaintiff accordingly. The defendant moved for a new trial on the ground of a misdirection ; and the motion was reserved for the consideration and advice of the nine Judges.

      JV. Smith and Bristol, in support of the motion,
    contended, that the plaintiff was, at most, entitled to recover such proportion of the stipulated freight as the voyage performed in the direct course from JVew-London to Bermuda bore to the whole of such voyage ; but that he could, on no ground, recover a reasonable freight from JVew-London to Antigua. There was, in this case, a special contract to transport the goods from JVew-London to Bermuda, and freight was to be paid only on a delivery of the goods according to the terms of the contract. They have not been so delivered. Laying out of the case the acceptance of the goods at Antigua, there can be no claim at all for freight. What, then, is the effect of this acceptance ? It only excused the plaintiff from carrying the goods to Bermuda ; and the utmost length that the authorities have gone in such a case, is to render the shipper liable for freight pro rata itineris peracti. It would be manifestly absurd, to hold, that the defendant, by dispensing with performance, subjected himself to pay a higher freight than he would have been liable to pay, if the plaintiff had performed the contract according to its terms. The contract forms the basis of all the rights between the parties. The shipper is not supposed to be benefitted, except so far as the goods are advanced on the voyage specified in the contract. The state of the market at the port to which the goods are carried, is out of the question. Lutwulge <$• al. v. Gray Sf al. in Dorn. Proc. Abbott, pt. 3. c. 7. s. 13. Luke ⅜ al. v. Lyde, 2 Burr. 882. Pinto v. Atwater, 1 Day’s Ca. 193. Armroyd $• al. v. The Union Insurance Company, 3 Bum. 437. 444. <$• seq.

      Daggett and Staples, contra,
    admitted, that while the parlies remained upon the contract, they must be governed by if, agreeably to the decision in Look v. Jennings, 7 Term Hep, 381. j but they contended, that the defendant, hv accept ing the goods at a different port from that specified in the contract, waived the stipulation in his favour, and then stood ^iC f,,0RnS °f a benefit received, for which the law will imply a promise to pay a reasonable compensation. Where the goods have been left at an intermediate port, as in most of tire cases reported, no better method could be taken of ascertaining the quantum of service rendered, than by comparing the iter peractum with the stipulated voyage ; but where the goods arc carried beyond the port of destination, there is no room for apportionment. But all the authorities take it for granted, and agree in this, that the acceptance of the goods by the owner renders him liable for some freight. The only sensible rule, in such case, is that which allows a reasonable freight.
   Swift, Ch. J.

It is a principle of maritime law, that where’there is a contract to transport goods on freight to a certain place, if the voyage be in part performed, and the owner voluntarily accepts them at an intermediate port, be shall pay freight pro rata itincris peraeti — that is, a rateable freight in proportion to the voyage actually performed. By the general rules of law, the master or owner of the vessel would not be entitled to freight, unless the whole voyage was performed ; and the goods delivered at the port of destination. But if the freighter will voluntarily accept them at an intermediate port, then this acceptance is the foundation of a new contract, and the law implies that he will pay a rateable freight. Such is the principle in the case of Luke v. Lyde, supported by all the decisions in England, and recognized by the case of Pinto v. Atwater in this state. No case can be found where it has been decided, that where the goods are received by the owner at an intermediate port, he shall pay reasonable or customary freight to the place where accepted ; for this would not be an equitable rule in many cases : as the goods at such place might be of less value than at the port of destination, and the expence of transporting them there might be more than from the place where the voyage commenced. To determine whether it would be reasonable to pay freight, it would be necessary to examine the state of the markets at the place where the goods were received, and the freight to the place of original destination. This would lead to such an endless enquiry, that courts have 5¡¡".or admitted it. They have adopted tin; rule of allowing, in sindicases, a rateable freight 5 for if the owner voluntarily receives the goody at an intermediate port, he waives any claim for I lie fulfilment of the contract; and it is considered reasonable that he should pay for the part of the contract performed. If a man should hire another to labour for him for the term of a year, and at the end of six months, the hirer should consent to release the labourer for the remainder of the year, the law would imply a contract that he should pay rateable wages for the service performed. So, on the same principle, where the freighter releases the carrier from the performance of the residue of a contract, he shall pay for the part actually performed.

It is not now a subject of enquiry, whether this is the best rule that could have been adopted, It is sufficient to say, that it is the established rule of maritime law ; and though it might be possible, that a more equitable one might he discovered, yet it is now more advisable to adhere to it, tiran to risk the consequences of the experiment. Indeed, this rule being well known, it is easy for parlies so to conduct as to avoid any material inconvenience, while the adoption of a new one would lead to a long series of litigation, before the application of it could be perfectly settled. The parlies, know ing the rule, can make provision for such an ev ent as has happened in the present, case. If no such provision is made, then the master may perform the contract, by transporting the goods to the place of destination, and he will be entitled to the whole freight ; or if the owner should refuse, or prevent him from doing it, he would he entitled to the whole freight. The owner may refuse to accept the goods at an intermediate port, and insist, that the master shall carry them to the demined piare : if he refuse or neglect to do it, oris unable to do it, am! the owner is under the necessity of receiving the goods, then he will be, hound to pay no freight: or, in ail cases, lie may make a stipulation w it!i the * master respecting the terms on which he shall receive them, if no such stipulation is made, and the owner voluntarily receives them, he shall pay a rateable freight for the part, of the voyage performed.

This must he the time and the ’place, when and where the disaster happened, which caused the vessel to depart from her course, and not ihe place where the goods were accept ed; for such place may be further from the destined par? than the place where the cargo was originally received. If, however» no part of the voyage has been performed» as where the vessel is prevented from entering the destined port by blockade, and she turns back, no freight can be recovered.

Í am of opinion, that the plaintiff is entitled only to recover a rateable freight for that part of the voyage which he had performed at the time when his vessel was captured ; and that a new trial ought to be granted.

In this opinion Tsumbuei, Brainaed and Goddard, Js. concurred ; and Edmond, Smith and Baidwis, Js. acquiesced, on the ground of precedent only.

Hosmee, J.

The plaintiff received on board the brig Hector a quantity of rice to transport to Bermuda, for a certain stipulated freight. This engagement he never performed. The delivery of the rice, was a condition precedent to any legal demand for compensation. Cook v. Jennings, 7 Term Rep. 381. Mulloy v. Backer, 5 East 316. Post and Russell v. Robertson, 1 Johns. Rep. 24. The Marine Insurance Company of New-York v. The United Insurance Company, 9 Johns. Rep. 186. 190.

Notwithstanding the original agreement was broken, it is contended, that the acceptance of the rice at Antigua, lays a legal foundation for the recovery of a reasonable freight, on an implied contract, from the place of the reception of the rice, to that of its delivery. This principle the court recognized ; and the jury might, and probably did, give the plaintiff the same compensation as they would have done, had (he rice primarily been destined to that island. This, most obviously, was incorrect. Were the question now to be decided, for the first time, I should be of the opinion, unhesitatingly, that the plaintiff is entitled to nothing. The mere acceptance of the rice at Antigua, may have been irreparably injurious to the defendant.» beneficial only to the plaintiff, and received merely to rescue the property from fut ure jeopardy. Reason and justice, the foundations of implied contract, do not authorize the assumption that the defendant agreed to pay any thing for the property received. But the point has been established by numerous and uniform dccis-ions, that some freight is due. A new contract has been implied from the acceptance of the goods, at a port different from the one to which they were destined, that the freighter shall pay a rateable proportion of the stipulated freight, for so much of the voyage as had been performed, when the disaster, which occasioned a deviation from it, took place. Luke & al. v. Lyde, 2 Burr. 882. Pinto v. Atwater, 1 Day 193. Cook v. Jennings, 7 Term Rep. 381. Mulloy v. Backer, 5 East 316. Williams v. Smith, 2 Caines 13. 21. Robinsons v. The Marine Insurance Company, 2 Johns. Rep. 323. Liddard v. Lopes & al., 10 East 526. Armroyd & al. v. The Union Insurance Company, 3 Binn. 437. The Marine Insurance Company of New-York v. The United Insurance Company, 9 Johns. Rep. 186. 190. I cannot persuade myself, that the principle has any warrantable foundation, or that the rule of damages is just, or relative to the case. A conformity, however, to the necessary rule of stare decisis, constrains me to sacrifice my own judgment, and to follow the precedents, so far as they lead. But I shall anxiously resist their extension a single hair’s breadth.

1 am of opinion, that the charge to the jury was erroneous; and would, therefore, advise a new trial.

(íotjIíD, J.

I concur in the opinion, that there ought to oc a new trial. Whether, according to original principles, the plaintiff is entitled to recover at all, upon the facts here disclosed, it is too late to inquire. For the case comes, plainly, within the rule, established in Luke v. Lytle, which has been too often recognized, to be questioned. But by that rule, the plaintiff here is entitled only to pro rata freight, according to the ratio fixed in the original contract of affreightment. The settled distinctions, as I understand them, are these : If the -shipper, whose goods have, by any inevitable misfortune, been carried to a wrong port, requires the master to transport them to the original place of destination, and the latter refuses to do it : no freight can be demanded : For it is the fault of the master, that they are not so transported. If the master, on the other hand, offers to carry them to the port of delivery, but the shipper declines the oiler, and takes them back into his own custody ; full freight is recoverable : Because complete performance of :he contract, by the master, is prevented by the shipper himself. But if the latter voluntarily receives the goods, without any such demand made, on his part, or refusal, on the other, and without any new express agreement, (in which case the non-performance of the residue of the voyage is not attributed, exclusively, to either party) freight is lo be paid, in proportion to the part of the voyage performed, at the time of the disaster. The case of Luke v. Lyde, and that now before the court, both come within the last rule. l,uf by the rule of daíi’ — ^s, ¡J mu to the jury, in the present case, the plaintiff is allow ed/uK freight, as upon a quantum mer-uit, without regard to the rale, agreed upon by the parties, in the contract of affreightment, and for another, and much longer, t oyage, ;:ian Ilia! embraced in the contract. This rule is not only unsupported I;\ ary legal principle, or authority, but replete with unjust and mischievous consequences : As it must frequently entitle a ship-owner, who has failed to perforin his contract with a freighter, to a much greater amount of freight, even tenfold more, as the case may be, than if he had fully performed it. Now, it is very obvious, that a rule, like this, is opposed not only to the principles of law and common justice, but to sound policy : Since it may often operate as a temptation to wilful and collr.-i co -J»n ifdions, under some pretence of nwessiiy.

The form of d( ‘■•ra*ii g, sn Ac sec.nui r<umt, is midoi.hledly right. Yu • if ! I:e plalntiffis c is is tie d to any vero*, ery, (ami this ihe cwfs, cited :;t the bar, fully cUahli-b,) it must he upon an hnrihd «.⅞pi¿7, This was the form of action, in Luke v. Lyde as in now ascertained (7 Term Rep, 385. Abbott. on Shipping 503); and the subsequent cases recognize it, an the only proper one, «pon a state of facts like the present. Upon the original express contr wt, the plaintiff can certainly recoser ucíhlrg: As it has not been fully performed, on his part. This point has been often settled. Bright v. Cowper, 1 Browul. 21. Clarke v. Garnell, 1 Bulsir, 167. Cook v. Jennings, 7 Term Rep. 381. In the present case, the delivery of the rice, at Bermuda, is in nature of a condition pm cedent; and no rule in the law is more familiar, than that he, who sues upon a contract, imposing upon him sucha condition, must aver, and show, performance of it.

£j;;1 if the express contract is abandoned, as the foundation <>t a suit. why. we are asked, is it not so, to every purpose ? Ami wire -hooh! not the plaintiff recover, independently el it, what the actual transportation is reasonably worth ? The principle, as I understand it, is, that a voluntary acceptance of the goods, by the shipper, in a case circumstanced like the present, is to he regarded as a waiver, by mutual consent, of the residue of the voyage, upon a tacit understandIng, that the ship-owner shall still be paid as much of the stipulated freight, as he has performed of the original voyage : And that a promise is hence implied, on the part of the shipper, to pay such a proportion of the freight, originaUy agreed for, as the part performed of the voyage, hears to the whole : The rate, or aggregate sum, fixed in the original express contract, being considered, ás an assessment by the parties, of reasonable freight for the whole voyage — anti therefore, as furnishing a ratio, with reference to which, rateable freight, for part of the voyage, ought to be apportioned. And the rule seems highly reasonable. Indeed, if this ratio -were rejected,--freight pro rata, for part of a voyage, might exceed the stipulated amount of full freight, for the whole voyage. ■ . ⅝.

New trial to he granted.


author: Swift, Ch. J. Gored, J.

text:
    Beach against Swift.
    THIS was a scire-facias against the defendant, as the factor, agent, &c. of one Titus Hall Beach, an absent and absconding debtor. The defendant was served with a copy of the writ in the original suit, on the 23d of October 1815. In that suit the plaintiff recovered judgment; and a demand was duly made of the defendant, on the execution, on the 18th of May 1816. The defendant pleaded, that he was not factor, agent, &c.; on which issue was joined.
    The cause was tried at New-IIaven, August term, 1817, before Edmond, Smith and Baldwin, Js.
    On the trial, the plaintiff Maimed, that the defendant, in (lie year 181.0, gave three promissory notes to Benjamin Beach, for the sum of 200 dollars each, which the latter, on the 2d of March 1815, delivered to his son, Titus Hall Beach, as a part of his portion, and took from him a receipt as follows: “ Received of Benjamin Iteuch obligations against John Swift of Derby to the amount of 600 dollars, which I, the said Titus Hull Beach, do agree to pay the lawful interest for, during the life of Benjamin Beach ; if not. called for at the deatli of Benjamin Beach, the principal and interest is to be Titus Hall Beach’s, and the heirs, executors, or administrators of the said Benjamin, shall have no claims or demands, of whatsoever name or nature, for the same.

      On a scire-facias in a process of foreign attachment against A- as the agent, &c. of B. an absconding debtor, where the property in question consisted of certain tes, given |i-v*^de-r., which the plaintiff claimed to belong to B. by assignment from C,, the plaintiff offered in evidence a writing signed by J?., found among the papers of C. after his decease, acknowledging the receipt of the notes, and stating tile terms of tile assignment : Held that this writing was admissible to shew, that the property of the notes was in B.

      ^ A witness interested to avoid a judgment, tor the costs of which he is liable, is incompetent, though his interest as to the debt is balanced.

      Hartford,

    November, 1817.

      Titus Hall Beach,’*

    And the plaintiff proved, that this receipt was signed, as it purported to be, by Titus Hall Beach ; and that it was found among the other papers of Benjamin Beach, after his decease. Accompanied by this testimony, the plaintiff offered the receipt in evidence, to shew that said notes were delivered by Benjamin Beach to Titus Hull Beach, and that they were the property of Titus Hall Beach. To this the defendant objected ; but the court admitted it for the purpose stated.
    The plaintiff further claimed, that Titus Hall Beach, on the 5th of August, 1815, applied to the defendant, and requested him to take up the original notes, payable to Benjamin Beach, and give new notes for the same amount, payable to John Patterson ; to which the defendant consented, and executed such new notes accordingly, and delivered them to Titus Hall Beach. The plaintiff also claimed, that these last mentioned notes were the property of Titus Hall Beach, and that they were taken by him, payable to Patterson, for his own use and benefit, and not for Patterson’s. The defendant claimed, that Patterson was the owner of the notes, and that they had been assigned and delivered over to him, by Titus Hall Beach, for a debt due from the latter to the former, previous to the service of the foreign attachment; and to prove the facts claimed by the defendant, in opposition to those claimed by the plaintiff, the defendant offered the deposition of Ellen Beach, wife of Titus Hall Beach, regularly taken. It was agreed, that Patterson had instituted suits against the defendant on the notes payable to him, (Patterson) which were then pending. The plaintiff objected to the deposition offered, on the ground that Titus Hall Beach was interested to defeat a recovery, as he lived in another .state, and would not be bound by the judgment against him in the plaintiff’s favour, if the plaintiff should fail to rerover in this suit ; and further, that his interest would be advanced, by defeating a recovery, as he would thereby be relieved from his liability to indemnify Patterson for failing to recover on the notes which had been assigned to him. The defendant contended, that the deposition was admissible, on the ground that the interest of Titus Hall Beach was equally balanced, as in case of a recovery in the present suit, the debt due from him to the plaintiff would be paid, and that be w'ould only be liable for the same amount to Patterson. The court decided, that the deposition was inadmissible.
    A verdict being given for the plaintiff, the defendant moved for a new trial, on the ground of these decisions. The motion was reserved in the usual manner.

      Sherman and Hatch, in support of the motion,
    contended, 1. That the receipt of Titus Hall Beach was inadmissible to charge the present defendant. It is res inter alios acta. It stands on the naked ground of a declaration of Titus Hall Beach, that he was assignee of the notes. It does not appear when this writing was made ; how it came into existence 5 whether Benjamin Beach ever saw it ; or, if he did, whether he accepted it, and assented to the assignment. The simple fact of its being a genuine instrument, found among the papers of Benjamin Beach, after his decease, can be no evidence of a transfer of property, so as to affect the rights of the present defendant.
    £. The deposition of Ellen Beach, the wife of Titus Halt Beach, was admissible, he having no interest in the event of the suit, or if any, an interest in the plaintiff’s favour, or a balanced interest. The only question of fact in issue was, whether the property attached was in Patterson, or in Titus Hall Beach. IIow would a decision of this question, one w ay or the other, affect the interest of Titus Hall Beach ?

    First, he can never be made liable to Patterson, whether the assignment to him were bona fide, or fraudulent. The title of the notes assigned was in Titus Hall Beach, at the time of the assignment j the notes were due ; and there has been no unlawful interference of the assignor to prevent collection. He has done all that the assignment required him to do, and nothing inconsistent with it. Besides, the notes assigned to Patterson were given up, and new notes taken, payable to Patterson, before the profess by foreign altacSiment was instituted. Tims, all implied obligation on the part of Titus flail Beach was extinguished.
    Secondly, the interest of Titus flail líe.ach vas in the plaintiff's favour, The effect of a recovery would be to pay his debt, with I’allcrsoii's money. In Bland v. Ansicy & at. C „\⅛; Rep. 3.31. the circumstances were similar, except that the witness was called by the other party ; and he was held not to be admissible. Had he been called to support the assignment in that case, be would, of course, have been admitted ; for a witness may testify against his Ínteres;, it is not easy to see how the force of this authority can be evaded. In Salmon v. Seeley, decided in Fairfield county, December term, 1816, it was determined, that the grantor of ⅛ deed impeached as fraudulent, was a competent witness to disprove the fraud, on a trial between the grantee and an execution creditor. A similar determination has been had in the state of JV*ew-Forfe, in a case where the grantor wa* released from covenants. Jackson v. Frost & al. 6 Johns. Hep. 135. 138. In practice, how often is the vendor of personal property called to support the title of his vendee against one claiming under a sale on execution ? In point of principle, the case at bar does not differ from this. Titus Hall Beach assigned notes to Patterson; an attaching creditor claims to impeach the assignment; and the wife of the assignor is offered as a witness, by the assignee.
    Thirdly, admitting the liability of Titus Hall Beach to Patterson, on the assignment, which would be removed if a recovery in this case were defeated; yet that advantage would be balanced, in case of the plaintiff's recovery, by the extinguishment of an equal amount of Titus Hall Beach's debt to the plaintiff. The case of Owen v. Mann, 2 Day's Ca. 399. was cited on the trial, as establishing a principle on which the witness might-be held incompetent. But this case, and one other, that of Buckland y. Tankard, 5 Term Hep. 578. went “ on the ground of more or less difficulty in the witness in establishing his ' interest against one or other of the parties.” 2 Fast, 461. In the present case, no such question arises. Titus Hall Beach is not turned round ¿ in; must, at all events, pay a debt; and it is perfectly indifferent to him, whether the plaintiff, or Patterson shall hold this tuiisi. Besides, the authority of both the cases referred to, is more than questionable, since the decision in Ridley v. Taylor, 13 East 175,
    lint it may he said, that Titus Hall Beach Isas an interest to the amount of the costs in the plaintiff’s suit against him; for. by establishing Patterson*s title, he will defeat the judgment in that case, and, of course, exonérale himself from the costs. This objection proceeds on an assumption altogether unwarranted. It has been more than once urged in cases precisely similar, and has been as often overruled. Eva,is v. Williams, 7 Term Rep. 481. n. Ilderton v. Atkinson, 7 Term Rep. 480. Rirt v. Kershaw, 2 East 458. in the latter case, Lord Ellenborough advances the proposition, that where the witness offered stands indifferent, as to the sum in dispute between the parties, his testimony is to be received. A vendor has always an interest, if this objection be valid, to defeat the levy of a creditor, and support the title of the, vendee; for, by defeating the levy, he saves the cost; and, of course, he cannot be a witness for the vendee, though released.
    JV*. Smith contra,
    contended, 1. That the writing given by litus Hall Beach to Benjamin Beach, and found among tbe papers of the latter, after bis decease, was proper evidence, being a part of the res gesta. The transaction to be proved was an assignment of certain notes to Titus Hall Beach, by which they became his property. These notes were delivered over upon a contract. Now, may not the plaintiff shew what that contract was ; and what the parties to the assignment did ? This is too clear to require, or admit of, argument; but if it were otherwise, still it would furnish no ground for a new trial, because both parties claimed that the property vested in Titus Hall Beach by the assignment ; and it is immaterial what evidence was received to establish an admitted lad.
    2. Titus Hall Beach had an interest in Use event of the suit : the deposition of ids wife, Therefore, was properly rejected. This deposition was offered by the defendant, to defeat a recovery in this suit. 1 f he should succeed, the judgment obtained against Titus Hall Beach, the absconding debtor, would become a nullity, and not only would tbe claim against him cease to be a judgment debt, but be would be forever exonerated from the costs recovered in that action. Further, the judgment in this case, if the plaintiff succeeded, would establish a fact, which would be the basis of a recovery by Patterson against Titus Hall Beach, on the contract of indemnity implied by the assignment. [Some other considerations were urged on this point, which, from the ground taken by the court in their decision, it is unnecessary to state.]
   Swift, Ch. J.

The writing executed by Titus Hall Beach to Benjamin Beach, to which the defendant objected, conduced to prove, that the notes in question were the property of Titus Hall Beach ; and as this was the point in dispute, it was admissible evidence: for though not executed by any party to the record, yet it was executed by the absconding debtor, who, in a suit against the garnishee, stands on the footing of a party, in respect to the estate sought to be recovered.

It was insisted by the defendant, that Ellen Beach, the wife of the absconding debtor, was a competent witness. But her husband had a direct interest to defeat a recovery in the action ; for if this could have been done, then the judgment recovered by the plaintiff in the original action against him would have been rendered void ; for as it was obtained by process of foreign attachment, it could be valid only to pursue a remedy against the garnishee. If that had been defeated, then the plaintiff must have resorted to his original cause of action, and could not have recovered for the costs which had arisen on the foreign attachment. The husband, then, if the testimony of the wife had been admitted, would have avoided a judgment in force against him, and would always have been protected against a demand for that part of the judgment which was for costs in the foreign attachment, against any action whatever.

Further, if the issue had been decided in favour of the defendant, then Titus Hall Beach would have been protected against any claim from the defendant, or Patterson, on account of the sale, or of the, assignment of the notes to him. Of course, he had a direct interest in the event of the suit; and the court did right in rejecting the testimony of his wife.

Trumbuii., EdmoNji, Smith, Bhainard, Baldwin, Uoddahii and Hosmek, Js. were of the same opinion.

Gored, J.

The only material question is, whether lite testimony of the wife of Tilus Hall Beach ought to have been received, to prove, that the beneficial interest in the notes, executed by the defendant, to Patterson, was not in her husband. And this depends, solely, upon the question, whether he is interested in the event of the suit.

If the testimony offered, were to be admitted, and by sat isfying the jury, that the interest is in Patterson, should defeat the suit; the consequence would be — supposing the interest to be actually in Titus Hall Beach — that he would avoid, not only the costs in this action, but those of the original suit against himself, (which are now converted into deit, by the original judgment;) and remain liable only to the debt, for which the plaintiff sued, in the first action. For, as the judgment, in both actions, is in revi, reaching only the effects of Titus Hall Beach, in the defendant’s hands ; neither the latter, nor even the former costs, can, in any way, be recovered against Titus Hall Beach, unless this action prevails. But if the interest in the notes is found to be in Titus Hall Beach, and a recovery consequently had, in the present action ; the amount recovered will comprise, not only the original debt, due to the plaintiff, but the costs included in the original judgment, (which, in this action, constitute part of the debt,) and also the costs of the present suit. The question, then, is, whether Titus Hall Beach, has not, in this view of the case, a preponderating interest, in defeating this action. Independently of all authority, I think, 1 should not hesitate, a moment, in saying, that he 1ms. In general, a liability for costs only, is an interest in the event, which excludes the person liable, from testifying for the party, for whose costs he is responsible. Hence, a bondsman for prosecution, under our statute-law, cannot testify for the plaintiff, nor the bondsman upon an appeal for the appellant; and at common law, the guardian, or prochein amy, on record, of an infant plaintiff, is not a competent witness for the infant. 2 Stra. 1026. Gilb. Ev. 107. Phill. Ev. 46.

But the defendant’s counsel have pressed the cases of Evans v. Williams, 7 Term Rep. 481. n. Ilderton v. Atkin son, Id. 480. and Birt v. Kershaw, 2 East, 458. in which it has been determined, that a person answerable, at all events, for the sum in dispute, is, in law, indifferent in point of interest, though he is interested, quoad the costs, on one side only. Pedicular examination of these cases is unnecessary. It is sufficient to say,, that the present case is distinguishable from all of them, in point of precedent, at least: as the costs of the original action against Titus Hall Beach, being, by the first judgment converted into debt, for the purpose of the present suit; the sum in dispute, to which he will be subjected, if the present action prevails, is greater than that, which the plaintiff can possibly claim against him, if this suit is defeated. Tilas Mall Beach is, of course, interested to defeat the present suit, independently of any interest in the costs of it. We- may, therefore, without disturbing either of the cases just cited, consider him as interested in the event, in favour of the defendant. And, as these cases have, in my judgment, gone to the utmost verge of the rule of competency ", I would not willingly extend them, beyond the precise point, which they decide.

New trial not to be granted.


author:
Swift, Cb. J.
      Edmond, J. Smith, J.
      Gotnr.n, J.

text:
    Botsford against Sanford.
    Till'S was an action on a promissory note for 314 dollars, 25 cents, dated April 5th, 1815, payable to the plaintiff, on demand.
    The cause was tried at Fairfield, September term, 1817, before Swift, (Jh. J., and Goddard and Gould, Js.
    The delinco was usury. In support of this defence, the defendant introduced testimony to shew, that on the 13th of April 1813, one Jarvis Platt gave his note to the plaintiff for .214 dollars, in which was included about 8 per cent, more than the lawful interest : that on the 24th of JSTovember following, that note was renewed for 290 dollars, in which was also included about 8 per cent, more than the lawful interest : that each of those notes was indorsed by the defendant as surety : and that on the 24th of October 1814, the defendant took up the last mentioned note, and gave his own note for the principal and lawful interest. To obviate this defence, the plaintiff offered witnesses to prove, that when the note of the 24th of November, 1813, was taken up, it was not due j and that the defendant urged the plaintiff to give it up to him, that he might have an opportunity to secure it out of the estate of Platt, who was then in failing circumstances ; that the plaintiff gave it up accordingly, and took the defendant’s note of the 24th of October, 1814, which was done at the defendant’s request, to effectuate the object proposed by him. The plaintiff offered to prove, also, by the same w itnesses, that afterwards, when the note in suit was given, the defendant acknowledged, that he had obtained out of the estate of Platt a sufficient sum to pay the note which the defendant had given for him, and to indemnify the defendant, by the levy of an execution on the real and personal estate of Platt, obtained in a suit on Piatt’s note to the plaintiff, commenced and carried on by the defendant against Platt, with his assent and approbation. The defendant objected to the admission of this evidence, on the ground, first, that the facts stated were irrelevant, and secondly, that they could not be proved by witnesses, without producing the execution and other proper documents in the suit against Platt, The court rejected the evidence on the first ground. The defendant having obtained a verdict, the plaintiff moved for a new trial : and the questions arising on such motion were resorted for the consideration and advice of the nine Judges.

      A. held a promissory note, given by B. on a usurious consideration, and endorsed by C. as surety. B. being* in failing* circumstances, C. applied to A- for the note, that he might secure it out of B.’s estate, and offered to give A. his own note for it : which was agreed to, and done. Held, that C,9s note so given was usurious, the transaction being a mere substitution of one security for another, by parties to the original usury.
    In such case, C. afterwards obtained payment of B.*s note, by a suit thereon against him, and was thereby -fully indemnified ; in consideration of which, he gave a new note to A. for the amount, field, that the latter note was not usurious.

      Hartford,

    November, 1817.

      Dnzqett and Chapman, in support of the motion,
    contended, 1. That the first note given by the defendant, viz. that of October 241 h IS 14, was not, upon the evidence offered, usurious. A grealer sum than the lawful interest may he included in a security micontamimitcd with usury ; as where it was included by mistake, or by the act of llie obligee, without the consent or knowledge of the obligor. So too a sccu-rify given for the amount of a judgment recovered on an usurious contract, is free from usury. So too a security given on good consideration, for the amount of an usurious one, by a person not party to the original agreement, is equally free from usury. Turner v. Eulme, 4 Esp. 11.

      liearce v. Baratóte, 9 Maas. Hep. 45, Church v, Tomlinson, 2 Genu. Rep. 3 84. n. In this case, there was a new and distinct consideration : and it w as also a good consideration. The defendant says to the plaintiff, if you will give me Platt’s note, so that 1 may secure myself against my indorsement, I will give you my note for that amount. The plaintiff parts with a security which he held, and the defendant gets a benefit to himself. The transaction rests on the same ground as it would, if the defendant had bought an usurious note, and given his own obligation for it.
    2. That the note in Suit, at any rate, was not usurious. After the note of October 24th, 1814, was given, the defendant obtained payment of the whole amount from Platt, and then, in consideration of the money thus received, took up that note, and gave the rióte in suit. This transaction brings the case exactly within Scott v. Lewis, 2 Conn. Rep. 132.
    3. As to the nature of the evidence offered, it w as remarked, in the first place, that the court decided, that the facts offered to be proved were irrelevant, and could not be received, if made out by any kind of evidence. Secondly, the evidence was not offered to prove the form or amount of a judgment, or the contents of an execution, but to prove that the defendant had obtained satisfaction. Thirdly, personal as well as real estate was taken ; and whether satisfaction was obtained or not, by personal property, clearly may be, and generally must be, proved by parol j it cannot ordinarily be proved by record evidence.

      Sherman and Hatch, contra,
    contended, that so much of the evidence offered by the plaintiff, as related to the first note given by the defendant, was properly rejected, because, if admitted, it would not have obviated the charge of usury. That note was clearly a substituted security for the usurious notes of Platt. The case of Fields & al. v. Gorham, 4 Day, 251. shews, that in substituting one security for another, a change of names on the paper makes no difference. Besides, the original notes had the defendant’s name on them as endorser. He was a party to them. The case of Turner v. Hulme, is, at best, of apochryphal authority; but this case does not even come up to that. Here, there was no process, no judgment, no arrest, on the original notes given by Platt. In Bearce v. Barstow, the defendant was indebted on a just and legal considerations for the amount of the note then in suit j it was a part of the case that the demand against him was liable to no objection of usury ; and the defence was substantially this, that a just and legal debt, had been transferred, by the creditor, to a man who had practised usury, in a distinct transaction with this creditor ! It is not wonderful that such a defence did not prevail; but it has no bearing upon the present case.
    2, The note in suit was usurious, admitting all the facts which the plaintiff offered to prove. It was still a substituted security. It was given to secure the payment of Plait’s debt to the plaintiff, and for no other purpose. Scott v. Lewis «loes not touch this case. There, the maker of the note in suit, had got a fund in his hands to pay an usurious note given by another; and instead of paying the money to the creditor, he gave his own note. If he had given no note, he would still have been liable to the plaintiff for money received to his use. Here, the defendant had, by legal process, obtained an indemnity for Ms own liability 5 but had received nothing for the plaintiff’s use. Platt still has a right to try the question of usury on this substituted security, in the defendant’s name, as well as he might on his original notes, if they had not been given up.
    3. The suit, judgment, execution, levy and return, which the plaintiff offered to prove, are all matters of record, or, at any rate, written evidence, which ought to have been produced, and could not be proved by parol. If it be said, that the court did not reject the evidence on this ground, but because it was, in their opinion, irrelevant, it is sufficient to observe, that if this Court can see from the case before them, that the evidence was properly rejected, though for a wrong reason, they will not grant a new trial; for if they should, it would obviously avail nothing, as the evidence would still be inadmissible.
   Swift, Cb. J.

In regard to the first note given by Sanford the defendant, to Botsford the plaintiff, I am of opinion, that it was usurious. It appears from the facts stated, that Botsford held a note against Platt, indorsed by Sanford as surety, which had been given on an usurious consideration. Sanford applied to Botsford, and offered to give him his own note for that note, for the purpose of securing it out of the estate of Piatt, who was in failing circumstances : to which jjotsford assented. This note, then, was given by a party to the original usurious contract, to the original promissee, the party to the usury, and in consideration of giving up the usurious note, without the privity or consent of the real debtor. Here was the same usurer, and the same usury: there was no-new consideration to the plaintiff; it • was a mere substitution and exchange of notes, which has never been deemed sufficient to purge the usury.

it lias been contended, that this was a purchase of the note by Sanford, for the purpose of securing it from Platt. But Sanford is to be considered as a party to the original note. He might have avoided a claim against him on his indorsement, on the ground of the usury contained in it. It might as well be said, that giving a new note by Platt for the old note would have been a purchase. The substance of the transaction is the substitution of one note for another, as between the parties to the original usury.

In respect of the last note, the one now under consideration, the plaintiff offered to prove, that the defendant, at the time it was given, acknowledged that by a suit on the former note, he had obtained a sufficient sum to pay it, from Platt, with his assent, and that he was indemnified. This would, in effect, have been a payment of the note by Platt to Sanford. No demand could ever have been made by Sanford on Platt; and the case stood precisely on the same footing as if Platt had actually paid the money to Sanford, and taken up his note. A man who has given a note, void on account of the usury contained in it, may waive taking advantage of the statute, and pay the money. In such case, it is said in Massachusetts, he cannot recover it back. 9 Mas. Rep. 48. And it has been decided in England, that no part but the unlawful interest can be recovered back. 1 Term Rep. 154. Gowp. 792.

Now. it would be a manifest absurdity to say, that a person who had received the whole money from the debtor, and. in consideration thereof, had given a new note, could avoid it. on account of usury in a prior note, when the debtor himself, who made and satisfied the usurious tontract, could recover nothing, or, at any rate, no more than the unlawful interest. Indeed, the object of the statute is, to protect those persons only, of whom an oppressive advantage has been taken, and not those who have made contracts on adequate consideration. Here no advantage was taken of Sanford; there was no usury in his note to Botsford; he received the full amount from the actual debtor; and then promised to pay it to Botsford. Here, then, was a new consideration j and the note given m consequence of it, was not infected, by the usury in the original note given by Platt to Botsford: for it cannot be permitted, when a man who has given a note void for usury, waives the statute, and pays the whole money to another, to be paid to the creditor, and the person to whom the money is so paid, instead of paying it over to tise creditor, gives a new note for it, that such new note should be void for the usury contained in the prior note. It may then be considered as a settled principle, whenever a man, whether the surety or a stranger, receives the amount of a usurious note from the debtor, and, in consideration thereof, gives a new note to the creditor, that there is no usury in the last contract, and it cannot be avoided on account of usury in the first, unless such arrangement was originally made with an intent to defeat or evade the statute ; and of this there is no pretence in the present case. Scott v. Lewis, 2 Conn. Rep. 132. is decisive.

⅜ The evidence offered by the plaintiff, and w hich was re-Sjected, conduced to prove, that Platt had made payment to Sanford of the note for which he was surety, and liad waived | taking advantage of the statute against usury ; and the jury ⅜ might have found, that Sanford, the defendant, in considera- | tion thereof, gave the note in suit. This testimony would ⅜ have been relevant, and ought to have been admitted ; and I on this ground I would advise a new trial,

With respect to the objection to the testimony, that the plaintiff ought to produce the record, execution and written documents, I think it ought not to prevail. The plaintiff relied on the acknowledgment of the defendant, that he liad received payment and indemnity for the note he had given as surety for Platt. This was the material part of the testimony. Whether he received it by a judgment and execution, or in any other mode, was wholly immaterial : and the plain till" was not hound to produce proof that he had received it in the manner he had acknowledged.

Trumbuxx, J., was of the same opinion,

Edmond, J.

thought, that Sanford was to be considered as a purchaser of PlatPs note, and though indorser on it, not a party, but a stranger ; it not appearing that lie knew that such note was usurious at the time he indorsed it: Con* sequently, the first note given by Sanford was not usurious. As to the second note given by Saifurd, he concurred in the opinion delivered by the Chief J ustice.

Smith, J.

On trial of this cause in the superior court,, the defence relied upon was usury : and to obviate the defendant’s testimony, the plaintiff offered certain evidence, which was rejected by the court as being irrelevant, and a verdict was consequently found for the defendant.

In determining whether the evidence is relevant, it will he proper, at present, to assume Ihe. fads as being proved, and if those lads will deliver the c ase from usury, the cause ought to go back for another trial. From these facts it ap pears, that on the 24th of October, 1814, tin' plaintiff held a note against Jarvis Platt, indorsed by the defendant, which was usurious. At this time, Platt being in failing circumstances, the defendant, who does not appear to be privy to the usury, applied to the plaintiff, and requested the note against Platt, that he might secure its contents out of his óslate. That note was accordingly delivered to him for the purpose aforesaid, in consideration whereof, the note of the 24lh of October was given by the ueleridanl. Now, the lies*, question presented by this record, is, whether the note, so given by the defendant, is usurious. If not, it puts an end to the case j but if this note is usurious, then a farther question arises.

1 have formed a dear opinion, that the note in question was not usurious. I cannot view this transaction in any other light than as a purchase of the note against Platt. If the. defendant had paid in rash, or exchanged other property for it, the purchase would not have been more, manifest. Giving his own note was payment, as much so as to have paid in cash. And Ihe defendant did not take the note, as one, taken np and paid hv an obligor ; hut the case states expressly, that lie received it for the purpose of securing its coni cnts out of the estate of Plait. He received it, then, as a purchase, and paid a valuable consideration in his own note. Had Platl availed himself of a defence on the ground of usury, the defendant’s remedy, if any, would be for the deceit practised in concealing the usury.

It has been said, that this case stands on the same ground as though the defendant had signed his name as co-obligor, and that he is virtually such ; but to my mind there is a manifest distinction. The indorser is not necessarily a party to the usury, and in a suit on the note, he cannot be permitted to appear and plead it. It has been said, indeed, and truly said, that in a suit against the indorser, founded on bis indorsement, he may be permitted to avail himself of the nsury. But this is not because the indorser is to be viewed in the light of a co-obligor, but it is because the defendant, in an action on an indorsement, has a right to defend on the ground of any defect in the plaintiff ’s cause of action. Were it duress, or any other defect, he would have the same right. This point was decided in the case of Lloyd v. Keach, ante. 175. and on these principles.

If I understand the argument, it is this, that an obligor, taking up a note, and giving a new one, cannot be viewed as a purchaser of the old note ; and that an indorser is in the same situation wish an obligor. Hence, his note given for the old one must be viewed as a substitute for the old one. But will any gentleman seriously contend, that an indorser is not as much a distinct person, for the purpose of purcha*-sing a note against the obligor, as any other ? Can he not own the property in a note indorsed by him, and bring forward a suit upon it as well as any other person ; and in case he gives his own note on such purchase, will it be seriously questioned whetbertliis purchase is not on a new consideration entirely distinct from the old one ?

1 am also perfectly clear, that on the supposition that the note I have been commenting upon was usurious, the usury was purged by the facts which occurred afterwards ; but on this point, as the Court appear to be unanimous, it becomes unnecessary for me to make any remarks.

Baldwin and Goddard, Js. were of the same opinion.

Brainard and Hosmer, Js. concurred in the opinion given by the Chief Justice.

Gotnr.n, J.

I think, that that part of the plaintiff’s evi-clenre, which was offered to show, that the defendant had obtained satisfaction upon Flail’s note, before the note now in suit was given, ought to have hern received But that the first part of 1 lie testimony, explaining the views, with which the defendant gave his first note (of October 24, 1814,) furnishes no answer to the defence, and was, therefore, properly rejected. For I am decidedly of opinion, that that note was usurious.

It is admitted, that the prior note, given by Platt, and indorsed by the defendant, was infected with usury ; but the plaintiff contends, that the, first note, given by the defendant, was not so. Perhaps, no rule in the law is better established, than tisis : That if an instrument, contaminated with usury, is taken up, and a new one substituted by the parties, to secure to the lender, or creditor, the original loan, or debt ; the substituted, as well as the original, security, is usurious and void. This rule was laid down as clear law' by Lord Kenyon, in. Tate v. Wellings, 5 Perm Rep. 537., and Cuthbert v. Haley, 3 Esp. Ca. 22. ; and afterwards, by all the judges of the King’s Bench, in the latter case. 8 Term Rep. 390. The question, then, as to the defendant's first note, given on the 24th of October, 1814, is, whether it was a mere substituted security, for Platt's last note ; or, as the plaintiff contends, an original security, given in consideration of a purchase of that note, by the defendant. To show that the transaction was, in substance, a purchase of Platt's note, the plaintiff’s counsel stated, and offered evidence to prove, that Plait's note was taken up, and the defendant’s first note given, at the request of the defendant himself, that he might secure himself against any eventual loss, as indorser, by enforcing the collection of the former note, out of Plait's property. I should hold, however, for this "very reason, that the first note, given by the defendant, was but a substituted security, (wliirh was, of course, void ;) and therefore, that this part of the evidence ought to have been rejected, ns it was. For what was the object of this arrangement ? To secure the defendant, as surety, or indor-ser, upon a note, confessedly usurious, by compelling Plait to pay it ,- i. e. by enforcing a usurious contract against the borrower, the very mischief, which the statute was intended to prevent. And when, in connexion with this fact, we consider the relation, in which the defendant stood, to the oilier parties, there appears to me to be but little ground for dispute, as to the nature of the transaction. For he was not a stranger, volunteering in the purchase of an obligation ; but a party to it, a guarantee for the payment of it. For the purpose of the argument, he stood precisely in the condition of a co-promissor, or a surety, who had underwritten his principa!. As a party to Platt's note, he was in the plaintiff’s power ; and lie gave his own, in exchange for it, by way of subslitniin" one form of liability for another, with a view, indeed, to his own ultimate indemnification, but still, by seen-ring anew the original usurious debt. lie gave his first note, then, solely in consideration of the plaintiff ’s delivering up to him another, to which he was a party, and by which he was already as much bound as Platt himself; that is, as far as any parly is ever bound, by an illegal contract. He was not, as to Platt's note, a payee, who had indorsed it to a stranger ; but, as l have said already, a surety, and virtually a co-promissor, guaranteeing the payment of it. to the usurious lender. And if he had been sued upon that note, lie might, unquestionably, have pleaded usury, as an original party to the instrument. This, if I understand the argument at the bar, is conceded : but whether it is, or not, the rule is undeniable, that a surety, or guarantee, underwriting, indorsing, or lending his name in any other way, may take advantage of the defence of usury, whenever his principal might do it. This rule was established, by the superior court, many years ago, in the case of Cowles v. Munson ; and has been so repeatedly adopted since, that a reference to individual cases would be useless. The English doctrine is the same. Button v. Downham, Cro. Eliz. 643. Robinson v. May, Id. 588. Potkin's case, 3 Leon. 63. Button v. Droman, Mo. 398. Young v. Wright, 1 Campb. 141. There is, then, no similarity between this transaction, and that of purchasing a third person’s obligation. The defendant did not buy another man’s note ; but took up one, which was virtually given by' himself and Plait, by substituting a sole security of his own. And it might as well be said, as in this case, that; if Platt, instead of the defendant, had given the note of October 24th 1814, upon t he same consideration ; it would have been only a purchase of his own note.

The case of Bearce v. Barslow, 9 Mass. Rep, 45., is en» tirely foreign to the question. The transaction in dispute in that case, was neither the purchase of an obligation, nor the substitution of a new security, by a party to the original notes. The defendant was a stranger to the original securi-j 1\' : and the note, upon which he was sued, was given to secure the consideration of a purchase of land by himself, from the borrower, it was, in short, the common case of an obligation, given for land purchased. In that case, however, the ruléis expressly recognized, that a new security, given, by “ a party, otherwise liable,” upon the prior usurious obligation, would be void. The Nisi Prius case of Turner v. Hulme, 4 Esp. Ca. 11., before Lord Kenyon, has been strongly pressed for the plaintiffs. But that case was manifestly determined, upon the ground, that a party, who, upon being sued, pays or secures the debt demanded, instead of contesting it as illegal, is afterwards estopped to deny the legality of it, precisely as he would have been, if the suit had proceeded, and a judgment had been given against him.. This is apparent from the reasons given for the decision : And the point had been twice before decided by the same judge, where, in one case, a defendant on being sued, and in the other, a party threatened with a distress, had respectively paid the demand, and afterwards attempted to call it in question. Knibbs v. Hall, 1 Esp. Ca. 84. Brown v. M’Kinally, Id. 379. Upon no other principle, at any rate, can the case of Turner v. Hulme be reconciled with the established and admitted rule, that a new security, substituted by the parties to a prior one, that is usurious, in consideration of the creditor’s delivering up the original instrument, is itself infected with the usury'. That case, therefore, is plainly irrelative.

With respect to the note now in suit, I was misled at the, trial, bv a mistake as to dates, having understood, that this note, like that of October 24th, 1814, was given before the defendant was claimed to have obtained Platt’s property, i, therefore, considered both of them, as standing upon the same footing. Rut as I now find, that the evidence, relating to this part of the case, was offered to prove, that the note in suit was given after the defendant had received the property ; I am clear, that the question is the same, as that in Scott v. Lewis. For this last note must be considered, as having been given, in consideration of a fund, received beforehand by the defendant, for the purpose of satisfying Platt's second note ; which fund, as between the present parties, must be regarded as having been, virtually, tlx o. piiiatijf’s property, in the defendant’s hands. Upon this ground it is, that the plaintiff’s evidence, as to this part of the case, ought, in my opinion, to have been received.

As to the defendant’s objection, that the record evidence of his title to the land, which he is said to have obtained from Platt, ought to have been produced, it is sufficient to say, that the fact of his having obtained payment, or satisfaction of Platt’s note, is legally provable by his own corif. ssion. The manner of obtaining it, is not material. In 1 bat con fession, according to the statement of the evidence offered, no specific property was mentioned ; but his declaration was, merely, that he had obtained satisfaction, by the levy of an execution upon Platt’s “ real and personal estate.” By what court the execution was issued $ or in what place— whether in this state, or another — the property was found, the declaration of the defendant, as stated, did not point out. Where, then, is the plaintiff to seek for the record-evidence! It would be too much to require such evidence at his hands.

New trial to be granted.

         A former note had been given, and the then existing note had been sub. stituted in its place ; but this circumstance makes no difference in the case, and may be laid out of it.


text:
    Lockwood and others against Weed and others.
    THIS was an appeal from a decree of probate, ordering a distribution of two tracts of land in Stamford, part of the estate of Daniel Scofeld deceased, to his heirs at law. The appellants were the North Baptist Society in Stamford, by their agents, Lockwood and others.
    The case was as follows. On the 7th of May 1812, Daniel Scofeld made and published his last will, containing the following deviso : “ I give, grant and devise unto the church of the North, or JV%w, Baptist church, in the town of Stamford, in Fairfield county, all my land joining my house, with the buildings, to lie as a parsonage forever; (conditions more fully hereafter mentioned) hounded 6cc.; and also, another piece on the east side of the highway, bounded &ce. ; and that the use, and improvement, and interest arising on said land, to be paid to said church, for the sole purpose of supporting the gospel in the Not th Baptist meeting-house ; and when said church shall neglect or refuse to keep a regular authorized minister to preach among them, or shall be moved to any other place, or shall alter in any way, or form the church in different sentiments than what it is now, or shall offer to move the property to any other place than what it now is; then the property and land to return to my heirs at law : So long as said church shall fulfil as aforesaid, they may give a part to the poor of said church.” The testator died soon afterwards, seised of the lands in question ; and his will was duly proved and approved. There was, at the time of making the will, and long has been, a congregation of Christians in Stamford, by the name of The North Baptist Congregation, being a legal corporation, duly organized and formed; and there never has been any church or congregation in Stamford known by that name, except the appellants. There was also, at the time of making the will, before, and since, a church, composed of a part of said congregation. Upon these facts, the superior court were of opinion, that the devise was made to the communicants composing the church of said congregation, who were not a legal corporation, and were incapable of taking. The devise was, therefore, held to be void ; and the decree of probate was affirmed.

      thereon, the A testator devised “ to the church of the North Baptist church in the town of S.” two pieces of land, with the buildings first “ to lie as a parsonage forever,” and the rents and profits of the other K to be paid to said church for the sole purpose of supporting the gospel m tire North Baptist meeting-house and then added, that “ when said church shall neglect or refuse to keep a regular authorized minister to preach among them, or shall be moved to any other place, or shall alter in any way, or form the church in different sentiments than what it is now, or shall offer to move the property to any other place than what it how is, then the property and land to return to my heirs at law : So long as said church shall fulfil as aforesaid, they may give a part to the poor of said church.” Held, that this devise was to the church of the North Baptist congregation, and not to the congregation, nor to the church in trust for the congregation.

      Hartford,

    November, 1817.
    The appellants thereupon moved for a new trial, on the ground that the court, in so deciding, had mistaken the law ; w hich motion was reserved for the consideration and advice of the nine Judges.

      N. Smith and Chapman, in support of the motion,
    contended, 1. That admitting a devise to “ the church of Iho North Baptist church” must be taken to be a devise to the communicants of that church, yet such devisees are capable of taking the estate devised. If the persons named as devi-sees are so described that they can be ascertained, they may take, though they are not a corporation. Shep. Touch. 4⅛ A devisee may as well be constituted by description as by nomination: e. g. devisees may be constituted by the words “ child” or “ children” — “ stock,” “ family,” “ house.” Fow. Dev. 320, 337, 344, 346. All the cases applicable to this point turn on the question of reasonable certainty ; and. the certainty is made out by parol evidence. Now, the communicants of a church may be as easily and as accurately ascertained as the members of a family. Suppose a devise be to the judges of the supreme court, to the president and professors of Yak-College, orto the inhabitants of a certain district; cannot all these be ascertained by evidence aliunde ? And will any one contend, that such a devise would be void for uncertainty? The member of the devisees never forms, of itself, an objection to the devise. To substantiate the objection urged in. this case, it must appear, that by no legal evidence can it be shewn who are the communicants.
    2. That the word “ church,” as used in this devise, is sy-nonimous with “ congregation.” That the word “ church” will admit of this sense, is evident from our statute, tit. 138, where “ church” and “ congregation” are used as words of equivalent import. Then, of two meanings that which will give effect to the devise is to be preferred, on the familiar principle ut res magis valeat quam percal. In construing a devise, the whole will must be taken together. If it can be gathered from the whole will for whose benefit the devise was intended, the court■ will carry into effect such intent. Now, the congregation of Baptists in the northern part of Siam-ford, was evidently the object of the testator's bounty. One piece of land, with the buildings upon it, is given “ to lie as a parsonage forever.” A “ parsonage,” in England, appertains to a benefice ; and, in this state, must mean the property of an ecclesiastical society. 15y another clause, the rents and profits of the land are given “ for the sole purpose of supporting the gospel in the North Baptist meeting-house an object in which the whole congregation, and not the church merely, are interested. The intent of the testator to give the estate to the congregation being established, there canuot he a doubt, whether this corporation is sufficiently described. The legal and proper name of a corporation is not required in a devise : it is sufficient; if it he so designated that it may be known. Fow. Dev. 493, 4. It was determined in a very early ease which has never since been questioned, that the words “ ecclesia sancti Andrea’, de l-Iolbomwere a sufficient description of the corporation of the parson of the church of Saint Andrew in llolborn, and his successors. 21 Rich. 2. Devise 27. S. C. cited 10 Co. 57. b. Plowd. 345. a. 523, Pow. Dev. 403.
    S. That if the devise be to the communicants of the church, and they are incapable of taking the beneficial interest, yet they may take as trusteds of the congregation. “ If a mars devise goods to the parishioners of the parish of S. to the use of the church; this is a good devise, and the church-wardens may recover it.” Shep. Touch. 415. Com. Dig, tit. Devise. (K.)

      Sherman and Hatch, contra,
    remarked, that the case presented two questions ; first, to whom is this devise made] secondly, can the devisees take ? They contended,
    1. That the devise was manifestly to the church, and nor to the rongregati m. This is the import of the words used, according to their literal and ordinary acceptation. The testator says explicitly, that he gives the property to the church, it is also apparent from other parts of the will, that be intended the church should have the property. Tire rents and profits of the land are to be paid to the church, to aid them in supporting the gospel. The, conditions prescribed in the will are to be performed by the church, And the provision for the relief of the poor is confined to “ the poor of said church.’*

    2. That a church is a community not incorporated ; and it is a clear principle of law, that a community not incorporated- cannot take an estate in fee. 1 Swift’s Syst. 225. Bout die ⅜* al. v. Cowdin, 9 Mass. Rep. 254, 10 Co. 26. b. Com. Dig. tit. Capacity. (B. 1.) Hornbeck v. Westbrook, 9 Johns. Rep. 73, 74. Jackson d. Cooper <$* al. v. Cory, 8 Johns. Rep. 385. 388. Barker v< Wood, 9 Mass. Rep. 419.
    In reply to the claim of the appellants, that the devise was to the communicants of the church in trust for the. congregation, it was remarked, that this was a gratuiions assumption, as there is not a word in the will indicating such an intention, if the. testator intruded to make the church his devisees, in any sense,lie clearly meant to give them the beneficial interest. This is manifest, from every part of they ill; but there is one consideration which is conclusive, viz. that the devise is made forfeitable by an act of the church. Besides, if this point were conceded to the appellants, it would not help their case. The trustee must be capable of taking a legal estate, though the cestuy que trust need not be.
   Swift, Ch. J.

The expressions made use of by the devisor clearly shew an intent to devise the estate to the church, as such, and not to the congregation. The words “ to the church of the north Baptist Church,'9 exclude the idea that he intended the congregation should be the object of his bounty. Had he named the North Baptist church only, I should have presumed, that he considered church as synonimous with congregation, and intended to have devised the estate to the congregation : But the expression, “ church of the North Baptist church” must have been intended for some special purpose. If he had intended to have given the estate to the congregation, he had nothing to do but so to express it. The words of the devise can be accounted for only on the idea of excluding the congregation j and they arc appropriate and proper, if it was his intention that the church, or body of communicants, should take the estate. This only could have been the object of this peculiar phraseology ; and on any other construction it is an utter absurdity. This meaning of the expression is perfectly consistent with the subsequent directions respecting the devise.

It is equally evident, that it was the intent of the devisor that the estate should be for the use and benefit of the church: and that he did not make the church, or its members, trustees, to hold the estate in trust and for the use of the congregation. The support of the gospel ministry in the North Baptist meeting-house, was a benefit to the church : and though it might also he a benefit to the congregation, yet this was incidental, while the direct object, of the testator was a benefit, to the church. But the last direction must shew the design of the testator beyond all doubt. In a certain event, the devisees may give a part to the. poor of the church. This w as for the benefit of the church ; and it cannot be presumed, that it was the intent of the testator, that the devisees were to hold the estate in trust, partly for the use of the congregation, and partly for the use of the church. The plain import, and fair construction is, that the devise was to llic rhurch of the North Baptist congregation, for their ose and benefit.

Whether the church can take the devise or not, it is unnecessary now to decide ; for it is not a party to the record. it is sufficient to say, that the devise was not made to the congregation.

In this opinion the other Judges severally concurred, except Govtn. J. w ho gave no opinion, having been absent, by reason of indisposition, when the case was argued.

New trial not to he granted,