text:
    Hathaway against St. John and another.
    A, being the owner of bank stock, transferred it to J3, in trust for her. She afterwards married C. The bank stock was sold, at her request, and the avails laid out in real estate; which, through the agency of B, was first mortgaged, and then sold, to secure and pay for a pair of horses and carriage, which were bought for, and went into the possession of A. These transactions were bona fide. The property being afterwards in the possession of C, it was attached by D, as C's property, in an action of replevin and trespass, brought by B, as trustee of A, against D, and E, the officer who served the attachment, it was held, 1. that when the land was sold, and the horses and carriage purchased, A had in equity full capacity to act as a feme sole in relation to that property, and to direct the sale of the former, and the purchase of the latter ; 2. that the temporary possession of C, at the time the property was attached, did not essentially vary the right of A, or of B, her trustee; 3. that whether the power under which C acted was sufficient to authorize his acts, or not, yet as B received the property, or permitted A to receive it, and, when taken away by D, sued him to recover it, this was a ratification of C’s agency ; but 4. that no judgment could be rendered, on the writ of replevin, against E,

      New-Haven,
    July, 1850.
    This was an writ of replevin, in connexion with an action of trespass, brought by Henry D. Hathaway, as trustee of Julia M, Clark, against Charles St. John and Henry A. Burr, to obtain the possession of a pair of horses, carriage and harness, then in the possession of Reuben H. Way, a deputy sheriff, which he had taken,*in August 1848, by virtue of an attachment in favour of said St, John and Burr against Remick K. Clark. The defendants avowed the taking of the chattels, alleging that they were the property of said Remick K. Clark, and not the property of the plaintiff, as trustee of Julia M. Clark. This was traversed, by the plaintiff; on which issue was joined.
    The cause was tried at New-Haven, October term, 1849.
    On the trial, the plaintiff claimed to have proved title to the chattels in question,by purchase from Lucius Hart; that the purchase was made in the city of New-York, on the 9th of May 1848, by Remick K. Clark, as the plaintiff’s attorney, duly authorized, by a power of attorney, which was produced ; that by virtue of the same povyer, R. K. Clark executed, in the plaintiff’s name, a bond to Hart, for the payment of said chattels, and also a mortgage deed, to secure the payment of such bond : and that some time after the execution of the mortgage, the mortgaged premises were sold and conveyed, and a part of the purchase money applied, by the concurrence of all concerned, to cancel the bond given for the property in question. It appeared, that the estate described in said mortgage deed, was a part of the property held in trust by the plaintiff, which had been purchased by him, with the proceeds of certain bank stock owned by said Julia M., prior to her marriage, and by her transferred to the plaintiff in trust for her. It also appeared, that the chattels in question were in the possession and use of Mrs. Clark, at Suffield, Conn., where she then resided, after they were purchased, and before they were attached.
    The defendants claimed to have proved, that the articles in dispute, at the time of the attachment and replevy thereof, were the property of R. K. Clark; and that they never had been the property either of said Hart or the plaintiff. They claimed to have proved the time, manner, and person of whom the purchase had been made, by R. K. Clark.

      The plaintiff denied the claims of the defendants, and introduced evidence to establish his own claims in opposition to-theirs.
    Upon these conflicting claims, the court instructed the jury, that the plaintiff, in order to recover, must satisfy them of the truth of the facts and claims set up by him, and that those of the defendants were not true ; and that the transactions of Hart and of Clark, as claimed by the plaintiff, in buying and selling the property in question, and the payment of said bond, and all the other matters, were not merely true in form, but true in fact, and bona fide, and not a cover to secure said property for said Clark, from his creditors ; and if there was indeed fraud in the transaction, the plaintiff could not recover.
    And the court said to them, that in deciding upon the true character of the transactions, they might and should look at the possession and acts of ownership of Clark, if any, and every other circumstance in evidence bearing on the question, in order to judge what the transactions were, and whether real and bona fide, or fictitious and fraudulent. That possession and use of personal property was, prima facie, evidence of title ; and that, in the case of personal property sold, the general rule of law was, that possession retained by the vendor would render the sale void as to creditors per se; but the court did not say to the jury, that the last mentioned rule of law was applicable to a case like this, except as herein stated.
    And further, if the transactions of said Hart and said Clark were true and bona fide, as claimed by the plaintiff; still, if after this, the plaintiff and said Julia M. suffered said Clark to act and represent said property as his own, and not as held by virtue of his power of attorney, for the benefit of said Julia M., so as that persons might and did give credit to said Clark, through this deceit or neglect; then in that case, the plaintiff can not, as against such persons, claim the property, but is estopped.
    The court further instructed the jury, that said power of attorney given by the plaintiff to said Clark, constituted him his true representative for the purpose therein named, and enabled him to act as fully as he himself could act, in buying, securing and paying for, the property in question, out of the avails of the trust property ; and that the exact mode of securing the payment, whether by bond or otherwise, if only payment was made bona fide, under said power, was not material in this case.
    The jury returned a verdict for the plaintiff, for 3 dollars, 73 cents damages ; and the defendants moved for a new trial, for a misdirection. Way, one of the defendants, also moved in arrest of judgment, alleging, that the declaration was insufficient for any judgment thereon to be rendered against him. These motions were reserved for the advice of this court.

      Ingersoll and Blackman, in support of the motions,
    contended, 1. That the power of attorney under which R. K. Clark claimed the right to purchase the property in question, relating, as it did, to real estate only, did not authorize the purchase of a pair of horses, a carriage and harness. An agent for a particular purpose, and under a limited power, cannot bind his principal, if he exceeds that power. 2 Kent’s Com. 620. & seq. Sto, Agency, 88. Seymour v. Bull, 3 Day 388. p Rossiter v. Rossiter, 8 Wend. 494. Illinois v. Delafield, 8 Paige, 527. S, C. on app. 26 Wend. 192. Webber v. Williams College, 23 Pick. 302. Ives v. Davenport, 3 Hill, 374.
    2. That no question of ratification or acquiescence of the principal in the acts of R. K. Clark, was submitted to the jury; nor does any such arise on the motion.
    3. That no judgment could, in any event, be rendered against Way, the deputy-sheriff, who is made a defendanl. Bowen v. Hutchins, 18 Conn. R. 550.

      Kimberly and J. S. Beach, contra,
    after remarking, that there was no room for the application of the rule that the retention of possession by the vendor, is fraudulent, because the jury have found, that E. K. Clark never was the vendor either of Hart or of the plaintiff, contended, 1. That the plaintiff could sustain this action, irrespective of the power of attorney. For, in the first place, the possession of personal property is, prima facie, evidence of property. 1 Greenl. Ev. 34. Robertson & al. v. French, 4 East, 130. 136, 7. 3 N. Hamp. 484. Secondly, a portion of the trust estate vested in this personal property ; and the trustee can follow it, and claim it. 2 Sto. Eq. § 210. Taylor v. Plumer, 3 Mau. & &⅛. 562. Oliver v. Pratt, 3 Howard, 401. Ryall v. Ryall, 1 A/A. 59.. Sto. Agency, § 229.
    2. That the power of attorney authorized Clark, the agent, to make this purchase.
    3. That if the agent exceeded the authority contained in the power, it is no ground for a new trial. In the first place, this is not the case of a principal defending against excess of authority by his agent; but of a principal claiming the benefit of the acts of his agent; and this he may always do. Sto. Ag. § 244. 248. But secondly, the act of the agent in making the purchase, has been ratified, by the plaintiff, by taking the property into his possession and use, and by bringing this suit. 2 Greenl. Ev. § 66. Smith v. Hodson, 4 Term R. 211. 216, 17. Peters v. Ballistier, 3 Pick. 495. Herring v. Policy, 8 Mass. R. 113. Foster v. Essex Bank, 16 Mass. R. 272. West-Boylston Manuf. Co. v. Searle, 15 Pick. 225. Duncan v. Meikleham, 3 Car. & Pa. 172. (14 E. C. L. 257.) Ferguson & al. v. Carrington, 9 B. & Cres. 59. (17 E. C. L. 330.) Sto. Ag. § 259. Thirdly, the principal may always follow his own funds, which have been, by the unauthorized act of his agent, converted into other property, wherever he can find it, and as far as it can be traced. Sto. Ag. 229. Taylor v. Plumer, 3 Mau. & Selw. 562. Thompson v. Perkins, 3 Mason 232.

    4. That judgment against Way, the officer, ought not to be arrested. He should have pleaded in abatement. Having avowed the taking, and failing in his justification, he may well be subjected for the trespass.
   Ellsworth, J.

Upon the merits of this case, the defendants have chiefly urged the insufficiency of the power of attorney given by the plaintiff to Remick K. Clark. They insist, that if this is insufficient, no title passed to the plaintiff', by the sale of Hart. We do not think that the sufficiency of this power of attorney is necessarily involved in our decision.

The defendants claim, as the creditors of Clark. We are satisfied, that Clark never had any title in himself, and, of course, they did not acquire any from him. It is true, they may require the plaintiff to show his title, though they had none themselves; and this, we think, is fully done, certainly -as to them.

It appears, that the property in question, all of it, is the avails of certain bank stock, once the property of Mrs. Clark, and by her transferred, before her marriage, to the plaintiff, her trustee. This stock was sold, at her request, and vested in real estate in Brooklyn, This again was first mortgaged, and then sold, to secure and pay for the properly in controversy, These transactions were all bona fide; and ail parties supposed the power of attorney was legal and sufficient. It appears, that when the land was sold and conveyed, Mr. Hart was paid out of the purchase money, by general agreement ; and. as this was her proper estate, and held exclusively for her benefit, she could direct as to the application of the money. She had, in equity, full capacity to act as a feme-sole over the property.

It further appears, that Mrs. Clark and her trustee, received into their possession, and for a considerable time enjoyed, the property, in Suffield, until it was attached by the defendants ; and although, on that day, it was in the possession of Mr. Clark, in Meriden, this does not essentially vary the effect of their possessory right.

Upon these facts, it is difficult to perceive how the defendants can question the right of the plaintiff. Mrs. Clark purchased and received the property, with the consent and approbation of her trustee. It is true, Mr. Clark was the agent, or supposed agent. The power of attorney was intended to be sufficient, and it was bona fide. Why- should these creditors object ? If the trustee had not, in the first instance, a good title, he has ratified the purchase, by receiving the property, or permitting Mrs. Clark to receive it; and he is now demanding it, and endeavouring to recover it. What can be a more complete ratification, if necessary, of the agency of Clark ? Besides, if it were necessary, the law would imply such assent, rather than that Mrs. Clark should suffer the loss of her own property. The plaintiff was created trustee for the very' purpose of protecting her title ; and his name may, with the highest propriety, be used for that parpóse. We do not cite authorities to these familiar principles.

The motion in arrest, we hold to be sufficient, so far as it respects Way, the officer. In Bowen v, Hutchins, 18 Conn. R. 550. it was decided, that an officer serving process, can not be sued in the action of replevin. Nor is it true, that by pleading to the merits, the objection is waived. The objection appears on the very face of the writ; he cannot be subjected ; and a waiver always proceeds upon the idea that there is substantially enough to give a cause of action.

But as the objection is apparent, the defendant should have demurred, and not put the plaintiff to the expense of a trial on the merits. He is entitled to judgment, but can have no costs.

We do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Kennedy against Howell.

      A executed and delivered to B a writing, under seal, promising, on or before a certain day to pay 300 dollars to B, for the sole and separate use of C, the wifeof A, At the lime this instrument was executed, C was living separate and apart from A, without his consent, and against his will; he requested her to return to his family, which she refused to do, unless he would allow her first to visit her parents in Europe, and allow her 300 dollars in money for the expenses of such visit,-she promising, that after her return, she would live with him; for this money the instrument in suit was given to B, a brother of C, as trustee; C accordingly went to Europe, and returned, but refused and neglected to live with A. Held, 1. that the instrument declared on was, in legal effect, an acknowledgment of indebtedness for the sum mentioned in it, with an express covenant to pay it; 2. that the law presumes, that such covenant was made upon sufficient consideration, and A was precluded from proving the contrary ; 3. that the non-performance by C of the agreement on her part, did not excuse A from performing his covenant; 4. that the consideration on which the covenant was founded, did not invalidate it, as being illegal or opposed to public policy; 5. that if C was insincere in her promise to return and live with A, this did not show any fraud in the execution of the instrument.

      New-Haven,

    July, 1850.
    This was an action on a promissory note or writing obligatory, under the defendant’s hand and seal, of the following tenor:
    $300 “ New-Haven, 28th September, 1846.
    On or before the 15th day of November next, for value received, I promise to pay to Andrew Kennedy, or order, three hundred dollars, for the sole and separate use of Eliza Howell. As witness my hand and seal,

      John W. Howell.” [L. S.]
    The defendant pleaded the general issue, with notice of special matter to be given in evidence.
    The cause was tried at New-Haven, October term, 1849.
    On the trial, the defendant offered evidence to prove, that the instrument under seal, declared on by the plaintiff, was founded upon no consideration ; and that if it was, that consideration bad failed : and furthermore, that the consideration was this, viz., the wife of the defendant, Eliza Howell, named in the instrument, at the time of the execution thereof, (which execution was not denied by the defendant, but proved and admitted,) was, for some cause not stated, living separate and apart from her husband, without his consent, and against his will; that the defendant requested her to return to his family, which she refused to do, unless he would allow her first to visit her parents in Europe, and pay her 300 dollars in money, to enable her to pay the expenses of such visit, for which money the instrument in suit was given to the plaintiff, a brother of the defendant’s wife, as trustee ; and then, on her return from Europe, she would live with him : that she accordingly went to Europe, and returned, sometime before this suit was brought, but though requested by the defendant, has refused hitherto, and still refuses and neglects to return to live with him, in his family. The cause of such continued separation was not stated. This evidence, being objected to, was ruled out by the court.
    The defendant further claimed, that said instrument, being founded on the consideration above stated, was void, as founded on an illegal consideration, and against the policy of the law. The court held otherwise, and still rejected the evidence.
    The defendant further claimed, that the promise of said Eliza, to return and live with him when she came back from Europe, was, when made, insincere on her part, she not intending to keep it, and was thus designed only to influence the defendant to do what he did do. The court allowed the defendant to show any fraud in the execution of the instrument, and held, that it would destroy the same, but not to set up the want of a consideration as a defence.
    The jury gave a verdict for the plaintiff; and the defendant thereupon moved for a new trial.

      C. A. Ingersoll, in support of the motion,
    contended, 1. That the facts which the defendant offered to prove, and which were excluded by the court, would excuse the performance, by the defendant, of the contract declared on. The rule that a writing under seal is binding, without a consideration, was adopted in the early history of the law, for reasons which were good then, but which now have no force. Then, the seal was every thing, and the signature nothing. Then, it was the seal, and not the signature, that gave binding efficacy to the contract. Now, it is the signature that gives binding force to the contract, and the seal is unessential, except in particular cases, where it is made necessary, by positive law.
    There are some covenants which are of no binding force, unless there be a consideration to support them; and the want of a consideration may be set up as an excuse for nonperformance. Covenants in restraint of trade, for instance, without consideration, are good for nothing. And when the courts decided, that it was necessary, in any covenant, to make it good, that there should be a sufficient consideration to support it, they in effect abrogated the general rule, which before existed, that the seal was a sufficient consideration, and no other was needed.
    2. That though the defendant will not claim, that the mere total failure of consideration will be a sufficient excuse for the non-performance of a covenant; a doctrine which has been sanctioned by respectable authorities; (Com. Dig. tit. Covenant F. Chitt. Cont. 5. n. Rose & al. v. Poulton & al. 2 B. & Adol. 822. (22 E. C. L. 191.) Havelock v. Ged-des & al. 10 East, 555. Thompson v. McCord, 2 Bay, 76.) yet he contends, that the consideration upon which this covenant was founded, is opposed to public policy. The effect of it will be, if sustained, to create family quarrels, and to cause pretended and real alienations, on the part of the wife.
    Dutton, contra,
    contended, 1. That the evidence of a want of consideration, was properly excluded. Montville v. Haugh-ton, 7 Conn. R. 543. 549. Seymour v. Harvey, 8 Conn. R. 63.
    2. That the other evidence offered by the defendant, was also properly rejected. A bond to provide for a permanent separation of husband and wife, has been held in this state to be good. Nichols v. Palmer, 5 Day, 47. A fortiori, a bond like this, providing for a temporary separation, must be valid. A separate estate in the wife, is recognized in this state. Jarvis v. Prentice, 19 Conn. R. 272.
    3. That the arrangement, in this case, was not opposed to the policy of the law. The ultimate object was to bring husband and wife together. The fact that the wife did not return and live with the defendant, is of no consequence : it did not affect the validity of the arrangement. Though an agreement made directly between husband and wife is void ; (Morgan v. Thames Bank, 14 Conn. R. 99. Fourth Ecc. So. in Middletown v. Mather, 15 Conn. R. 587. 589.) yet the defendant, might have taken a bond from her trustee.
   Hinman, J.

The instrument declared on, is in the usual form of a promissory note, but, being under seal, and properly delivered, it is, in legal effect, an acknowledgment of indebtedness for the sum for which it was given, with an express covenant to pay it; a covenant being nothing more than a promise under seal. It was given for the benefit of the defendant’s wife ; and, on the trial, he offered to prove, that it was given without any valid consideration ; and that such consideration as there was for it, has failed-which he was not per mitted to do.

The law presumes, that covenants are made upon sufficient consideration, and estops the covenantor from proving the contrary. This is now admitted ; still, the defendant claims, that, in cases where there is a consideration, and the party for whose benefit the covenant was made, deprives the other party of it, this excuses the covenantor from performance on his part.

There is no authority for this, where the covenant, like the-one underconsideration,is a single obligation for the payment of money. That it is so, where the covenant is made dependent on performance, on the part of the covenantee, there is no doubt. Hence the cases cited, where landlords have failed to recover for rent reserved. Rent is the compensation reserved for the enjoyment of property; and such enjoyment is the condition on which the payment is made to depend.

It is claimed, that the consideration of this instrument was illegal; or, at least, that it was opposed to public policy; and, therefore, the covenant was void. The note was payable to the plaintiff, for the use and benefit of the defendant’s wife ; and it was given to enable her to visit her friends in Europe. There seems to be nothing improper in this. It has been held, that a bond for the permanent maintenance of a wife, separate from her husband, is not opposed to public policy. Nichols v. Palmer, 5 Day, 47. If such an instrument is valid, it would seem, there can be no objection to this.

But, it is said, the covenant was intended as an inducement to return and live with the defendant; and that she was insincere in her promise to do so. This does not show any fraud in the execution of the instrument, but rather, that it was understandingly made; and the promise of the wife, in this respect, was a mere agreement to perform her marital duty; it imposed no new obligation ; and, therefore, it could not have amounted to a legal consideration for the instrument. Besides, the agreement, as between husband and wife, would have been void, had it professed to bind her to any thing new.

The covenant was, therefore, wholly voluntary, and without consideration ; but, inasmuch as the defendant had a right to make it, and saw fit to do so, it is too late, now, to deny his liability.

We do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.


author: Storrs, J.

text:
    Merriam against The Hartford and New-Haven Rail-road Company.
    New-Haven,
    July, 1850.
    In order to charge a common carrier for the loss of property, it is necessary that it should be delivered to him, or his agent, for transportation. But such delivery may be either actual or constructive.
    If a common carrier agree, that property intended for transportation by him, may be deposited at a particular place, without any express notice to him, such deposit merely, would amount to constructive notice, and be a sufficient delivery.
    And such agreement may be shown, by proof of a constant practice and usage by the carrier, to receive property left for transportation, at a particular place, without any special notice of such deposit.
    Where goods were delivered, in the usual manner, for transportation, by a common carrier, on his private dock, and in his exclusive use, for the purpose of receiving property to be transported by him ; it was held, that such delivery was a good delivery to the carrier, to render him liable for the loss of the goods, although neither he, nor his agent, was otherwise notified of such delivery.
    Where the defence to an action against a common carrier for the loss of goods, was placed solely on the ground of a want of notice to him of deli very; and the court instructed the jury, that the delivery, if in accordance with the usage claimed to be proved by the plaintiff, was sufficient, without-submitting to the jury the question of fact, whether such usage influenced the plaintiff in his conduct; it was held, that the charge was not exceptionable, by reason of such omission.
    Under the late statute, regarding the competency of witnesses, the wife of a party is a competent witness in his behalf.
    Though by the general rule, a witness cannot be supported, by evidence of his general character as to truth, except after a general impeachment of it; yet where the witness is in the situation of a stranger, such evidence is admissible, without such previous impeachment.
    This was an action on the case for negligence on the part of the defendants, in the transportation and delivery of certain goods belonging to the plaintiff. The cause was tried, on the general issue, at New-Haven, January term, 1850.
    On the (rial, it was proved and admitted, that the defendants were common carriers of goods by steam-boat, from New-York to New-Haven, and from thence, by rail-road, to Meriden, in this state ; and that a steam-boat, called The Commodore, belonging to the defendants, and used in their business, usually lay alongside a dock in Peck-slip, when in the city of New-York; which dock, the plaintiff claimed to have proved, was the private dock of the defendants. The plaintiff also claimed and offered evidence to prove, that said dock used by the defendants, was fenced off from the adjoining street, and that there were two gates in the fence-one for the admission of passengers, and the other for carts carrying freight to and from the steam-boat; but these gates were never kept locked or fastened; that a shed was placed over the South half of said dock, extending about half way down from the fence to the pier; which shed was boarded up on the Northerly side, and was open at the Easterly and Southerly side, opposite the steam-boat landing.
    It was also proved and admitted, that the defendants usually had a person in attendance upon said dock, to open and shut the gates thereof, for carts with freight to come in and go out; and that such person assisted in taking the lines of the steam-boat to bring her to the dock, on her arrival; and that when the boat was not lying at said dock, this person took charge of such freight as might be brought to him for the boat; which freight, when so received by him, was left upon said dock, near to the usual landing-place of the steam-loaf; and that the clerk of the boat, after her arrival at the landing-place, came upon the dock, and took an account of all freight so lying there, if properly marked and directed, and had it placed on board the boat, to be carried, by the defendants, to its place of destination.
    The defendants claimed to have proved, that no other person but the clerk was authorized, by the defendants, to receive freight, when the boat was lying at said landing-place ; and that when the boat was not at said landing-place, the only person authorized by the defendants to receive freight, was the person before-mentioned in attendance upon the dock.
    The plaintiff claimed to have proved, that on the 4th day of May, 1848, the box of goods claimed in the declaration to have been lost, which was marked “ Mrs. A. E. Merriam, Meriden, Conn.,” was carted, by William C. Crawford, a licensed carman of the city of New-York, to the dock aforesaid ; and that Crawford drove his cart, with the goods, through the gate, and on to the dock, near where the steamboat was then lying; that he then called to some one on board, who appeared to him to be acting in authority, but whom he did not know, and had never seen before nor since, and told him, that there was freight for Meriden, to which the person so addressed replied, “ all rightand the carman thereupon left said goods on the dock, at the usual and ordinary place of depositing freight for the boat. The plaintiff also claimed to have proved, that it was the established custom of the defendants to receive all goods deposited on said dock for transportation, and duly marked and directed ; and to keep a person to open the gates for the reception of freight; and that it was usual to deliver all goods for transportation by the defendants in their boat, upon said dock and within said enclosure; and that said delivery was, by the uniform usage of the defendants, and the understanding of the public, a delivery to them, without any further notice to them.
    The defendants claimed they had proved, that said box was never left upon said dock ; and that if it was ever left there, by the carman, that no agent or servant of the defendants who was intrusted to receive freight for the boat, was ever notified thereof, at the time of such delivery, or at any other time; and that said box was either lost, by the carman, or stolen from the dock. And the defendants claimed, that if the jury should find from the evidence, what the defendants claimed to have proved, that no other person was authorized by the defendants to receive freight, but said clerk, or the person in attendance upon the dock; and that neither the clerk, nor such person, was notified, by the carman, of his having brought said box to be transported in the boat, that then the law was so, that there had been no delivery to the defendants.
    But the plaintiff claimed, that if the jury should find from the evidence, that the person on board the steam-boat, whom the carman hailed, and who replied as aforesaid to the carman, was, at the time, an officer or other person in authority belonging to the boat, and so the servant of the defendants, though not the clerk or person attending the dock, said delivery on the dock, by the carman, would be in law a good delivery to the defendants: and he also claimed, that if the jury should find, that said dock was a private dock of the defendants, inclosed by them, and if the carman had deposited said goods, duly marked and directed, upon the defendants’ private dock and inclosure, and near to where the steam-boat was then lying, and at the usual and customary place of delivery of freight to be transported by the defendants, the goods, when so deposited, would be duly delivered to the defendants, without any notice thereof to their servants or agents author ized to receive freight.
    The court charged the jury, that in order to make the defendants responsible as common carriers, they must find, that the goods in question were delivered to them, as such carriers, to be transported ; that a delivery to any person not authorized by them to receive the goods, would be no delivery to them ; and thereupon the court left it to the jury to say from the evidence, if they believed said box of goods was left upon the dock, in the manner testified by the carman Crawford, whether the person on board the defendants’ boat, whom Crawford notified of his having the freight for Meriden, was an officer of the boat who was authorized to receive freight.
    The court further told the jury, that if the dock where the goods were claimed to have been delivered, was a public dock, then a delivery there was no delivery to the defendants, unless they were properly notified thereof; but if said dock was the private dock of the defendants, and in their exclusive use, as claimed by the plaintiff; and if the goods were delivered there, in the usual and accustomed manner in which they received goods for transportation; then a delivery at such private dock was a good delivery to them, though their agents were not notified thereof.
    The plaintiff offered his wife as a witness in the cause, and being objected to as incompetent, she was admitted by the court.
    He also introduced the deposition of Wm. C. Crawford, the carman, who delivered said goods upon the dock in New-York; and it appearing, that Crawford was wholly unknown in and resided without the state, in the city of New-York; the plaintiff immediately thereafter, and without any impeachment of Crawford, and without any evidence whatever having been introduced on the part of the defendants, offered the testimony of Alfred Edwards, to show the general good character of Crawford; to which the defendants objected ; but the court overruled the objection, and admitted the testimony of Edwards, for the purpose aforesaid.
    The plaintiff obtained a verdict; and the defendants thereupon moved for a new trial.

      Ingersoll and W. B. Bristol, in support of the motion,
    contended, 1. That there was not a delivery of the goods to the defendants, sufficient to make them responsible as common carriers. To constitute such delivery, it must be made to the carrier in person ; or to his authorized agent in person; or it must be accompanied with notice to the carrier or his agent. The delivery is inchoate until such notice is given ; and no usage can change this universal principle of commercial law. Sto. Cont. 466. 5 Petersd. Abr. 66. 2 Kent's Com. 604. Buckman v. Levi, 3 Campb. 414. Packard v. Getman, 6 Cowen, 757. Blanchard v. Isaacs, 3 Barb. Sup. Ct. R. 388. Frith v. Barker, 2 Johns. R. 327. 335. Nor can it make any difference, whether the dock was a private or public dock, in regard to the necessity of notice. He who leaves his goods, though properly marked, in a rail-road depot, without notice to the company or its agents, or who leaves upon the counter of a banking-room his bank-book, with his money in it intended for deposit, instead of handing it to the clerk or cashier, cannot subject the rail-road company or the bank for the loss, if his property is stolen, before they or their agents have notice of its being so left,
    2. That if usage could controul the law of delivery, irrespective of notice, the court should have submitted the question of fact, not merely whether the usage claimed was proved, but whether it was such, and had been so long continued and generally acquiesced in, that the jury could say it influenced the conduct of the plaintiff. The jury should have been permitted to pass upon the question, whether the defendant’s previous course of business, or their usage, had been such, that the plaintiff had in fact been induced by it to leave his goods exposed upon the dock. The charge was, substantially, that if the jury found a usage, whether long or short, whether the plaintiff had been influenced by it or not, it was, as matter of law, conclusive upon the rights of the parties. This was incorrect. Rushforth & al. v. Hadfield , 7 East 224. Frith v. Barker, 2 Johns. R. 335.
    3. That the testimony of the plaintiff’s wife should have been excluded. Prior to the statute of 1848, the wife clearly could not be a witness in her husband's favour. By that statute, the law was so altered that interest in the- event of the suit should not disqualify a witness. The wife, in this case, has not such an interest. She is excluded as a witness, not on the ground of interest merely, but on principles of public policy, which lie at the basis of civil society. Greenl. Ev. 3S4. & seq. 2 Kent’s Com. 178. 180. Stanton v. Willson, 3 Day 37. 56.
    4. That the deposition of Edwards, to sustain the witness Crawford, before he had been in anyway impeached, should have been excluded. That deposition relates to Crawford’s character for integrity, and is not confined, as it should have been, if admissible at all, to his character for truth. His character, in no other respect than for truth, could have been questioned. 1 Sw. Dig. 767. 1 Greenl. Ev. § 461. 469.

      Kimberly and Doolittle, contra,
    contended, 1. That, the charge of the court as to the delivery of the goods to the carrier, was correct, within the strict rule of law on the subject. Sto. Bail. 341. 3 Stark. Ed. 334. 2 Kent’s Com. 603. Gibson v. Culver, 17 Wend. R. 305.
    2. That the wife of the plaintiff was a competent witness. In the first place, under the late statute, she was not disqualified, by reason of interest or otherwise. Stat. 86. Secondly, nor has the wife, in this state, ever been excluded, on the ground of public policy, when offered in support of her husband’s claim. Stanton v. Willson, 3 Day 37.
    In Massachusetts, she is holden a competent witness to prove the entries made in her husband’s book. Littlefield v. Rice, 10 Metc. 287. In Vermont, she is holden a competent witness in book debt, if a party with her husband. Andrus & ux. v. Foster, 17 Verm. R. 556. Gay & ux. v. Rogers, 18 Verm. R. 342.
    3. That the testimony of Edwards to the good character of Crawford, was properly admitted.
    In the first place, the witness, Crawford, was a stranger, wholly unknown, and gave his deposition in New-York. The State v. De Wolf, 8 Conn. R. 101. Rogers v. Moore, 10 Conn. R. 13. Howell & al. v. Brown, Sup. Ct. N. Haven Co. Oct. 1848. cor. Storrs, J. Secondly, if the character of the witness be impeached, by cross-examination, or by contradictory evidence, it is competent to support him, by general evidence of. good character. 1 Stark, Ev. 147, 8. 1 Phill. Ev. 306, 7. * The People v. Rector, 19 Wend. 584. 610, 11. Thirdly, such evidence is particularly proper, where, as in this case, the position of the witness subjects him to suspicion, involving his integrity, as well as his veracity.
    4. That the court will not grant a new trial, if no injustice has been done, although the evidence was technically inadmissible.
   Storrs, J.

The plaintiff claimed to have proved, on the trial, that the property, to recover the value of which this action was brought, was delivered by him, to be transported by the defendants, as common carriers, from the city of New-York to Meriden, on a dock in said city, which was the private dock of the defendants, and in their exclusive use, for the purpose of receiving property to be transported by them ; and that it was delivered there, in the usual and accustomed manner in which the defendants received property for transportation ; and the court charged the jury, that such delivery at said dock, was a good delivery to the defendants, to render them liable for the loss of the property, although neither they nor their agents were otherwise notified of such delivery. The defendants insist, that they were not chargeable for it, unless they had express or actual notice of such delivery ; and that the jury should have been so instructed.

A contract with a common carrier for the transportation of property, being one of bailment, it is necessary, in order to charge him for its loss, that it be delivered to and accepted by him for that purpose. But such acceptance may be either actual or constructive. The genera! rule is, that it must be delivered into the hands of the carrier himself, or of his servant, or some person authorized by him to receive it; and if it is merely deposited in the yard of an inn, or upon a wharf to which the carrier resorts, or is placed in the carrier’s cart, vessel, or carriage, without the knowledge and acceptance of the carrier, his servants or agents, there would be no bailment or delivery of the property, and he, consequently, could not be made responsible for its loss. Addison on Cont. 809. But this rule is subject to any conventional arrangement between the parties in regard to the mode of delivery, and prevails only where there is no such arrangement. It is competent for them to make such stipulations on the subject as they see fit; and when made, they, and not the general law, are to govern. If therefore, they agree that the property may be deposited for transportation at any particular place, and without any express notice to the carrier, such deposit merely would be a sufficient delivery. So if, in this case, the defendants had not agreed to dispense with express notice of the delivery of the property on their dock, actual notice thereof to them would have been necessary; but if there was such an agreement, the deposit of it there, merely, would amount to constructive notice to the defendants, and constitute an acceptance of it by them. And we have no doubt, that the proof by the plaintiff of a constant and habitual practice and usage of the defendants to receive property at their dock for transportation, in the manner in which it was deposited by the plaintiff, and without any special notice of such deposit, was competent, and in this case, sufficient to show a public offer, by the defendants, to receive property for that purpose, in that mode ; and that the delivery of it there accordingly, by the plaintiff', in pursuance of such offer, should be deemed a compliance with it on his part; and so to constitute an agreement between the parties, by the terms of which the property, if so deposited, should be considered as delivered to the defendants, without any further notice. Such practice and usage was tantamount to an open declaration, a public advertisement, by the defendants, that such a delivery should, of itself, be deemed an acceptance of it by them, for the purpose of transportation ; and to permit them to set up against those who had been thereby induced to omit it, the formality of an express notice, which had thus been waived, would be sanctioning the greatest injustice, and the most palpable fraud.

The present case is precisely analogous to that of the deposit of a letter for transportation in the letter-box of a post-office, or foreign packet vessel, and to that of a deposit of articles for carriage in the public box provided for that purpose, in one of our express offices; where it would surely not be claimed, that such a delivery would not be complete, without actual notice thereof to the head of these establishments or their agents.

The only authorities cited by the defendants, to show that an express notice to them was necessary in this case, are Buckman v. Levi, 3 Campb. 414. and Packard v. Getman, 6 Cowen, 757. These cases are distinguishable from the present, in this respect, that there was not, in either of them, a claim of any particular habit or usage of the defendant, which should vary or modify the general principles of law in regard to the mode of delivering the property. They were, therefore, decided merely on those general principles, unaffected by any special agreement between the parties on that subject, inferable from such usage. But in several of the cases cited, it was held, that where the earlier had been in the habit of receiving property for transportation in a particular mode, a delivery to him in that mode, was sufficient.

The defendants except also to this part of the charge, on the ground, that, if their particular usage as to the reception of property could eontroul the general law of delivery, the court should have submitted to the jury the question of fact, whether such usage influenced the plaintiff' in the course which he took in regard to the delivery of the property, and did not instruct them, as matter of law, that the delivery, as claimed to be proved by the plaintiff, was sufficient. We think, that it would not be going too far to say, that when the plaintiff, in delivering the property, conformed to the usage of the defendants in receiving it, which was different from the usage which generally prevails in that business, he is presumed to have known of that usage of the defendants, and to have been influenced by it; and it does not appear, that there was any evidence to repel such presumption. But without deciding that point, it is a decisive answer to this objection, that it was not only not made on the trial, but the defendants placed this part of their defence on the sole ground of a want of notice to them of the delivery. To no other matter in this branch of the case was the attention of the court called. The judge therefore had a right to infer, that no question was intended to be made, as to whether the plaintiff was influenced in his conduct, by the usage of the defendants. His attention would naturally be drawn from that subject, by the course taken by the parties, in raising the question of notice, and no other. It was the duty of the defendants distinctly to direct the attention of the judge to the point which he now claims was overlooked, if he wished to have it noticed. In regard to his instruction to the jury, that the delivery, if made in the usual and accustomed manner in which the defendants received goods for transportation, was sufficient, we think that it was correct, as there was no evidence adduced by the defendants to qualify or affect the proof of the plaintiff on that subject. The charge, therefore, was unexceptionable,

2. We are of opinion that, by a just construction of the 141st section of the act “ for the regulation of civil actions,” (Stat. 86.) the wife of the plaintiff was a competent witness in his behalf. It was the express object of that section to remove the common law disqualification of persons as witnesses, in all civil suits, by reason of their having an interest in the event of the same. In legal contemplation, the husband and wife are one person : their interests are, therefore, identical. This is the ground of their exclusion, by the common law, as witnesses for each other. The reason given by Blackstone, why they are not to be admitted to be witnesses for each other, is, that it would contradict the maxim of law, “ nemo in propria causa testis esse debet:” (1 Comm. 443.) and Phillips says, “ they cannot be witnesses for each other, because their interests are absolutely the same.”

It is said, however, that the reason for this exclusion, is not founded wholly upon their identity of interest, but partly on a principle of public policy, which deems it necessary to guard the confidence of married life; and that the statute, by its terms, applies only to cases where the interest of the party was the sole ground of exclusion. This argument, however, entirely fails, because that reason applies only where the husband and wife are called to testify against* each other; and in such cases, we admit that it has very great weight.

But were it otherwise, we think that this would be too narrow a view of the statute and of the intention of the legislature in making it. Its language is substantially like that of the statute making all interested persons competent as witnesses in the action of book-debt; and its object, although broader, is the same. The latter statute has been in existence since the earliest settlement of the state. Under it the wife, in that action, has always been admitted as a witness for the husband ; and this construction of that law was sanctioned, by the case of Stanton v. Willson & al. 3 Day, 37. The law now in question should receive a similar construction.

3. The remaining question respects the admissibility of the deposition of Edwards. He testified, in that deposition, to the general good character of Crawford, a previous witness, for honesty, and in every other respect, which of course included his character for veracity. The general rule is, that a witness cannot be supported by evidence of his general character for truth, excepting after a general impeachment of it; but we have adopted an exception to it, where the witness is in the situation of a stranger; in which case, we allow him to be supported, by evidence of his genera! good character for veracity, without such impeachment. Rogers v. Moore, 10 Conn. R. 12. But evidence of his good character, in other respects, is not admissible for that purpose. Therefore, as Crawford was a stranger, that part of the deposition which related to his character for truth, was admissible ; but the remainder of it, which spoke of his character in other respects, was not. The objection in this case to the deposition, was a general one ; but a part of it being admissible, it would not have been proper for the court to exclude it. The objection should have been made, specifically, to that part of it which was inadmissible.

We do not, therefore, advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.


author: Church, Ch. J.

text:
    Tomlinson against Collins.
    In replevin for goods attached, the plaintiff can recover only by proving himself to be the owner of them.
    On the 12th of August, A caused certain goods owned by B, to be attached, and the officer who served the attachment, placed them in A’s hands, as his bailee, to keep them for him. On the 22d, while these goods were thus under attachment, C entered into an agreement with B, that C should have the goods, if he would pay the claim of A ; which C did not pay until the 28th, Oh the 26th, while the goods were under A's attachment and in his hands as bailee, D attached them in a suit against B, without removing them from A's custody, and without notice to him of such attachment. Held, 1. that the agreement between C and B was upon a condition precedent, and no title in the goods passed to C, until performance by him, on the 28th ; 2. that the attachment of 7?, on the 26th, was, in the absence of fraud, a valid attachment; the law requiring no act of notoriety to constitute an attachment of property, and nothing more {han that the officer should so take it as to have it in his power or custody; 3. that though it would have been proper for the officer serving the second attachment, to give notice thereof to A, the bailee of the goods, yet there is no law requiring this to be clone, nor did the want of such notice, in this case, invalidate the attachment.

      New-Haven,

    July, 1850.
    A constable, having attached goods in the town in which he lives, may leave a copy with the defendant in another town.
    Where it was material to shew, on the trial of the cause, that the property in question was, at a certain time, holden by attachment; and the writ which had been served, but never returned to court, was offered, with parol testimony, to prove such fact; it was held, that the evidence was admissible for this purpose.
    This was an action of replevin, to obtain the possession of certain goods, alleged to be the property of the plaintiff, which had been taken from him, by attachment.
    The defendant avowed the taking, by virtue of a writ of attachment in his favour against Samuel Walcutt; alleging, that the goods, at the time of such taking, were the property of said Walcutt, and not* of the plaintiff. Upon this plea issue was joined.
    The cause was tried at New-Haven, January term, 1850.
    On the trial, the plaintiff, for the purpose of proving title to the goods, claimed and offered evidence to prove, that on the 22d day of August, 1848, those goods, being then the property of Samuel Walcutt, were in the possession of Abraham Hubbell, of Derby, under a claim by him, as a creditor of Walcutt; that they were then under an attachment in his favour against Walcutt, and had been placed in his custody, by the attaching officer, David T. Stoddard, a constable of Derby, to keep them for him ; that the amount of his claim was about 130 dollars ; that the plaintiff, having knowledge of these facts, and that Walcutt had, within a few days preceding, failed and become insolvent, they agreed with each other, at Naugatuck, on the 22d day of August, 1848, that the plaintiff should have the goods, if he would pay HubbelVs claim, amounting to nearly the fair value of the goods; that on the 24th day of August, 1848, (Hubbell then being absent from home,) the plaintiff informed Hubbell's wife, that he had bought said goods, and requested her to notify her husband of the same, and to direct him to feed two horses, parcel of said property and goods, with grain, at the plaintiff’s expense, until the fore part of the next week, when the plaintiff would pay Hubbell's claim and take the property.
    On the 28th day of Avgust, 1848, at Derby, the plaintiff called on Hubbell, and asked him, if he, the plaintiff, could have said property, by paying his, Hubbell’s, claim, and informed him of said agreement, and also asked him, if there were any other claims or attachments on said goods ; and Hubbell, in reply, told the plaintiff that he could have the goods, if he would pay said claim, and that there were not any other claims or attachments than his upon said goods, to his knowledge. And the plaintiff thereupon paid Hubbell's claim and costs, amounting, in full, to 134 dollars, and took a part of the goods, and left the residue with Hubbell, for the remainder of that day ; and in the evening, while the plaintiff was removing the residue of the goods, they were taken, by said Stoddard, a constable, from the plaintiff, by virtue of an attachment, in favour of the defendant, against Walcutt.

    And the plaintiff claimed, that during all this time, the goods remained in the actual possession of Hubbell; and that he advanced said sum of money to pay Hubbell's claim, solely on the faith and credit of said goods ; and that Walcutt, at the time of such payment, was wholly insolvent.
    The defendant claimed, that, at Derby, on the 12th day of August, 1848, said goods were attached, by David T. Stod-dard, a constable of Derby, at the suit of Hubbell, against said Walcutt, founded on the before stated claim of Hubbell against Walcutt; and that this officer then put said goods into the possession and keeping of Hubbell, the creditor in said suit, to keep for him ; and for the purpose of proving these facts, the defendant, offered in evidence, the writ of attachment, upon which he claimed they were attached, together with the return of said constable Stoddard thereon endorsed, accompanied with the parol testimony of Stoddard, (to the facts claimed by the defendant,) and to the correctness of the return on said writ; which was made returnable to the October term of the superior court for New-Haven county, 1848 ; but it was never returned to said court; and the plaintiff objected to its admission, and to all of said evidence ; but the court overruled the objection and admitted the same. The officer also testified, that he told Hubbell, on the last-mentioned day, not to give up said property, on any consideration, without a written order from him.
    The defendant also claimed to have proved, that on the 20th day of August, 1848, he caused a writ of attachment in his favour and against Walcutt, to be put into the hands of said officer for service ; and that, on the evening of that day, the officer went into the cellar of HubbelPs house, where a part of the goods were, and attached the same ; and that he also went to Hubbell"s barn, where the residue of the goods were, and attached them ; and that the officer testified, that he thought he told Hubbell, that he had attached them, but did not tell him on whose writ he attached them ; but the officer repeated to Hubbell what he had said to him, when the same goods were first put into Hubbell"s possession on his own attachment, not to give up the property, upon any consideration, without a written order from him, the officer ; and the officer did not remove the goods, nor place any mark on them ; and there was no person present, when he attached them on the last-mentioned writ.
    The defendant also claimed to have proved, that on the 28th day of August, 1848, after said sum of money had been paid by the plaintiff to Hubbell, towards evening of that day, the plaintiff was about removing said goods out of Hubbell’s possession, contrary to his wishes, (and against his express commands,) when the officer took said goods from the plaintiff, and left a copy of said writ of the defendant’s with Wal-cutt, on the day of September, 1848, at the town of Nau-gatuck, and said writ was not otherwise served. And the defendant denied all the claims of the plaintiff; and claimed, that if any such purchase was made by the plaintiff as he claimed, it was fraudulent and void.
    The plaintiff also claimed to have proved, that after said property was attached by the defendant, (if it ever was so attached,) said attachment was made secretly ; that the plaintiff and Walcutt were wholly ignorant of it, at the time said sum of money was so paid ; and that said goods remained in the same situation,during all the time aforesaid,after the sécond attachment as before; that there was no mark on said property ; and that nothing was done, by said officer, on the 26th day of August, 1848, to designate that said property liad been attached ; and that he did not notify Hubbell, in whose possession said property then was, that he had again attached said goods. And the plaintiff also denied the claims of the defendant.
    The plaintiff claimed, and requested the court so to charge the jury, 1st, That if they should find, that he bought said goods on the 22d day of August, 1848, prior to the defendant’s attachment, and left notice thereof, with said direction concerning the keeping of the same, as claimed by him, although he did not take the actual possession of said goods prior to the time when the defendant claimed to have attached them, that the property of said goods vested in the plaintiff, and that they could not, after such purchase, be taken for Walcutt’s debt.
    2d. That if the plaintiff permitted the goods to remain in the possession of Hubbell, who held them under a claim of right, adverse to Walcutt, it was not a badge of fraud, and no presumption of fraud could arise from this circumstance.
    3d. That if Hubbell had notice of the plaintiff’s purchase of the property, previous to the defendant’s attachment, the plaintiff would hold the goods against the defendant.
    4th. That the acts of the officer, as claimed by the defendant, on the 26th day of August, did not constitute an attachment of the goods ; but that (the goods being in the possession of Hubbell,) it was necessary for the officer to give Hubbell notice of such second attachment, or to remove the goods, or take them into his custody, or place some mark upon them, so that third persons might know that they were attached ; and that if the attachment was secret, it was, at least, a badge of fraud.
    5th. That if the plaintiff paid his money on the faith and credit of the goods, while they remained in the actual possession of Hubbell, without notice to the plaintiff, Hubbell or Walcutt of the defendant’s attachment, the plaintiff would hold the goods as against the defendant.
    6th. That if Hubbell, while he had possession of the goods, relinquished them to the plaintiff, a bona fide purchaser, the defendant’s attachment became thereby relinquished; and that the officer and the defendant were bound by the acts and declarations of Hubbell relative to the goods, while he remained in the possession of them.
    7th, That if the defendant's writ was not otherwise served than by leaving a copy thereof, with his return thereon, with Walcutt, at the town of Naugaluck, by David T. Stoddard, a constable of the town of Derby, such service was invalid, and the defendant acquired no lien upon the goods, by such attachment arid service.
    The court did not charge the jury in accordance with the claims of the plaintitf; but charged them, that if there was an attachment in fact of the goods, on the 12th day of August, 1848, at the suit of Huhbell against Walcutt, and the goods were then placed in Hubbell's custody, by the officer, as claimed by the defendant, and so remained until the 28th of August; and if the acts of the officer, on the evening of the 26th of August, were as claimed by the defendant ; they constituted a valid attachment of the goods; that it was not necessary for the officer to remove them, or place any mark upon them, or to give Hubbell notice that he had again attached them with Collins's writ; and that, although the plaintiff might have paid his money to Hubbell, on the faith and credit of the goods, and at the time of such payment, neither the plaintiff, hubbell, nor Walcott, knew of such attachment; and the goods were then in liabbeiis possession and custody, and, as he, and the plaintifl and Walcott sup~ posed, subject only to Hubbell's claim or attachment; yet that the acts of the officer constituted a valid attachmer]t to hold the goods, as against the plaintiff, provided the jury should find, that neither the officer, nor the defendant, ~was guilty of any actual or intentional fraud in relation to such attachment.
    The court also told the jury, that as by the terms of the original agreement between the plaintiff and Walcuti, the goods were only to become the plaintiff's, on his paying the debt of hubbell; and as it was not claimed, that, said debt was paid until after the attachment of the defendant ; that if that was a valid attachment, it would hold the goods; that if there was no fraud in the acts of either of the parties, they should be regarded as having equal equitable rights to the property in question; and in such case, the party who first obtained the possession and perfected his lien or title, would prevail and that the defendant was not bound, by Hubbell's acts or declarations, unless he, or his officer, Stoddard, was privy -thereto. But if there was any designed or fraudulent concealment of the defendant’s attachment from the knowledge of the plaintiff, by means of which he was induced to pay his money to Hubbell; and if either the defendant, or his officer Stoddard, was privy or consenting thereto, the defendant’s attachment would thereby be rendered invalid, and the plaintiff would hold the goods.
    The jury returned a verdict for the defendant; and the plaintiff moved for a new trial.

      Munson, in support of the motion
    contended,
    1. That the evidence of the acts of the officer prior to the plaintiff’s purchase of the goods, and the defendant’s attachment of the same; the endorsement on the writ; and the parol evidence of the officer to the truth of the facts contained in the endorsement, were improperly admitted.
    In the first place, these facts have nothing to do with the issue between the plaintiff and defendant. The issue is simply on a question of title, at a time subsequent. And no legal inference could arise relative to the validity of a subsequent purchase, by the plaintiff, or a subsequent attachment, by the defendant. The facts are collateral, and do not come within any of the exceptions of the rule which excludes collateral facts, 1 Greenl. Ev. 551, 2. 1 Stark. Ev. 52. 1300. (3d ed.)
    Secondly, the evidence offered was not, in its nature, proper, to prove the facts claimed. The return of the officer is the only legitimate evidence of an attachment. It is the duty of the officer to return the writ. Stat. 579. sec. 10. Dutton v. Tracy, 4 Conn. R. 79. Stark. Ev. 995. 1002, 42, 4.
    Thirdly, the writ and endorsement is not matter of record, until it is returned to court. Stark. Ev. 284. By the record we distinguish the official acts of the officer from the acts of the individual. The endorsement of an officer on a writ not returned, is no higher evidence of the facts contained in it than his parol declarations made out of court to the same facts. He is not liable for making a false endorsement ; and until the return is made, it is not a communication to the codrt of his official acts. The reason why credit is given to the return of an officer, is, that he is a sworn officer of the court, to which he makes return of his official acts. Stark. Ev. 285.
    Fourthly, if the endorsement is evidence, then the parol evidence of the officer was, at least, superfluous. 1 Greenl. Ev. 315. Stark. Ev. 995.
    2.That the title of these goods vested in the plaintiff, when the bargain was completed between him and Walcutt, on the 22d of August, prior to the defendant’s attachment.
    The bargain was simply this ; that the plaintiff should have the property, and pay Walcutt’s debt to Hubbell, in consideration of the conveyance; and it was then complete and valid. The minds of the parties met. There was a mutual assent and agreement of the parties to the terms of the contract. The consideration that the plaintiff was to pay the price of the property to Walcutt’s creditor, was a valuable consideration. Meade v. Smith, 16 Conn. R. 346. 358.
    The contract was for a lawful purpose. Every thing was finished, by Walcutt, the vendor, that could be, or was to be, done by him. The goods were parcelled out and specified. The terms of the sale were agreed on. The bargain was absolute and complete, and the right and risk of the property was in the plaintiff. 2 Kent, 492. note 2. 2 Black. Com. 448. Meade v. Smith, 16 Conn. R. 358.
    It is no objection to the validity of this transfer, that the property was then in the adverse possession of Hubbell, a third person. 2 Kent’s Com. 492. note (b.) The sale was a sale of Walcutt’s right, subject to Hubbell’s lien.
    If the transaction was bona fide, and the plaintiff was guilty of no laches in taking possession of the property, and in performing his part of the contract, his rights and title could not be defeated, by any subsequent act of Walcutt’s creditors. Ingraham v. Wheeler, 6 Conn. R. 277. Meade v. Smith, 16 Conn. R. 358. And there is nothing in the circumstances of this transaction, that can raise a presumption of fraud, or shew any want of diligence on the part of the plaintiff.
    3. That at the time this bargain was made, the possession was not in Walcutt; and when the bargain was struck, his title had passed to the plaintiff. What interest then could his creditors acquire, by attaching that in which he had no interest ?

    4. That the plaintiff carried out his contract, and paid his money, in good faith, solely on the credit of this property ; and why should the defendant reap the benefit, when otherwise he would have had nothing ? But by the charge and ruling of the court, all of these considerations were withheld from the jury ; and the terms of the contract were, by the court, assumed to be such, that although it was bona fide, and the whole transaction was free from fraud, and the plaintiff was guilty of no laches, and the plaintiff paid his money on the credit of the goods, in good faith ; yet if the defendant’s attachment was made prior to the actual payment of the money, by the plaintiff, the defendant would hold the same.
    5. That the defendant’s attachment was constructively fraudulent; and the jury should have been so instructed. It was made in secret, and kept in secret, until after the money had been drawn out of the plaintiff. Secrecy is always a badge of fraud. 1 Sw. Dig. 27 5. No matter if it was not designed to be secret or fraudulent, the effect is the same on third persons. The possession was never taken and held, by the officer, under the defendant’s attachment. Burrows v. Stoddard, 3 Conn. R. 164. Hollister v. Goodale, 8 Conn. R. 334.
    The possession of Hubbell, without notice, is not the possession of the officer. There is no privity of contract or possession between them, as to the defendant’s attachment. Ingraham v. Wheeler, 6 Conn. R. 279.
    Prior to the defendant’s attachment, this property was Wallcutt’s, subject only to Hubbell’s lien ; and by Hubbell’s consent, without the consent of the officer, Walcutt could make an absolute and valid transfer of this property. Felker v. Emerson, 17 Verm. 101. Collins v. Smith, 16 Verm. 9.
    So far as third persons are concerned, it is the same as though the property attached had been left in the hands of the original owner. Taintor v. Williams, 7 Conn. R. 271. Waterhouse v. Smith, 9 Shep. 337. Burroughs v. Wright, 19 Verm. 510. Possession of property after an attachment or sale,is made constructively fraudulent, because it is deemed to operate as a fraud on third persons.
    The plaintiff stands on higher ground than an attaching creditor, who has not parted with his money and the credit of the property. Thompson v. Rose, 16 Conn. R. 71.
    6. That the lien of the defendant, by virtue of his attachment, was terminated and lost, by Hubbell's giving up the property to the plaintiff, after he had paid Hubbell's claim, on ihe 28 th of August. Taintor v. Williams, 7 Conn. R. 271. Carrington v. Smith, 8 Pick. 419. Bugly v. White, 4 Pick. 395. Knapp v. Sprague, 9 Mass. R. 258.
    7. That the attachment was never perfected. In order to perfect an attachment the defendant must be summoned ; he must be officially informed of the suit, by a copy of the writ, attested by a proper officer. The service of a writ, by a constable, is limited to his own town. Slat. 143. sect. 38. The leaving of the copy is an official act ; it is the service of the writ. The fact that the property was attached within the officer’s precincts, gave him no power to go beyond his precincts to make service on the person. An officer can not enlarge his precincts, or derive a new power, by his own acts.

      Wooster, contra,
    contended, 1. That the writ offered in evidence, accompanied by the testimony of the officer, was properly admitted. All that it was necessary to prove, was, that there was an attachment in fact. The defendant claimed nothing, by virtue of the legality of the attachment. He simply claimed to show, that the property was under the controul of the officer. To prove this fact, the officer was introduced as a witness, and the writ was produced by him, as a mere memorandum of the transaction, made at the time, and sworn to by him, as tending to show an attachment in fact. The writ was not introduced as record evidence ; nor was the effect of such evidence claimed from it. Did it not tend to prove the matter in issue&emdash;an attachment in fact ? All evidence that shall tend to prove the issue, if offered in legal form, is admissible. 1 Greenl. Ev. § 51, 2. Of this the plaintiff cannot complain ; as it tended to prove nothing but what he claimed to prove, for the purpose of showing his title.
    2. That by the bargain, as claimed by the plaintiff, between him and Walcutt, the payment of Walcutt's debt to Hubbell was a condition precedent to his obtaining any title to the property in question ; and as such debt was not paid to Hub-hell until the 28th day of August, no title could, by the terms of the agreement, vest in the plaintiff until that time. A con-ditipn precedent must be performed, before he whose duty it isto perform it, can claim any title or benefit by the contract to which it is annexed. 1 Sw. Dig. 195. 2 Smith's Lead. Ca. 8.

    3, That had the plaintiff’s contract been such with Wall-cutt, on the 22d of August, as by its terms to have vested its title in the plaintiff; yet the leaving of the property in the possession of Hubbell, the bailee of the officer, until the 28th of August, Walcult being notoriously insolvent, was such a badge of fraud as to render the sale to the plaintiff prima facie fraudulent, and, unexplained, conclusively so. No explanation was offered. 1 Sw. Dig. 267, 8. Osbornev. Tuller, 14 Conn. R. 529. Carter v. Watkins, Id. 240,
    4. That the possession of Hubbell was the possession of the officer; and the goods were as much subject to a second attachment, as though they had remained in the actual possession of the officer; nor would notice to Hubbell of the pretended purchase of the plaintiff, affect the right of attaching creditors, so long as Hubbell was acting as bailee and agent of the officer, and not of the plaintiff. It does not appear, that Hubbell ever received such notice, as was claimed to have been left with his wife. The wife is bound by no rule of law to communicate to her husband ; and no presumption can be drawn, that, in this case, she did so.
    5. That had such notice been received by Hubbell, it would not have any effect in giving title. It would not be a payment ; it would not be a taking of possession ; it wmuld not constitute a delivery; nor would it make Hubbell his agent.
    6. That the goods, being, on the 26th of August, in the custody and possession of the officer Stoddard, by his bailee Hubbell, it was not necessary that there should be a removal or marking of the goods. All that is necessary to constitute an attachment, is, that the property be under the controul of the officer, by virtue of legal process. Hubbell’s possession was the possession of the officer ; and no removal or mark could bring the goods more under the controul of the officer. Hollister v. Goodale, 8 Conn. R. 334. Turner v. Austin, 16 Mass. R. 181.
    7. That Hubbell, being a bailee and agent of the officer to keep merely, and expressly forbidden to give up the goods to any one, without an order from the officer, could not so relinquish them, as that the defendant, or the officer, would be bound by his act. It would not be within the scope of his authority.
    8. That an officer may go beyond his precincts to leave a copy with the defendant, when he has made an attachment of goods within his precincts. When an officer legally commences a service, he has power to complete it.
   Church, Ch. J.

This being an action of replevin for goods attached, the plaintiff can recover only by proving himself to be the owner of them. Brown v. The Chicopee Falls Co., 16 Conn. R. 87.

The first and most material question arising here,is, whether the legal title to the property in controversy vested in the plaintiff, before it was attached by the officer, on the second writ of attachment. Walcutt was the owner of the goods, and the contract between him and the plaintiff, made on the 22d day of August, 1848, was, that the plaintiff should have them, if he would pay the claim of Hubbell, who then had them under attachment. This was a contract of sale, upon a condition precedent. It was not, that he should have them, upon his promise to pay Hubbell, at some future time ; but if he paid in fact-which was equivalent to saying, upon his paying, or when he paid. 1 Sw. Dig. 195.

No title, therefore, vested in the plaintiff, on the 22d day of August, as he did not pay Hubbell’s claim until the 28th of that month. It is important, of course, to determine whether, in the mean time, on the 26th day of August, they were attached and legally holden, by the defendant, as he claimed. For if so, this action can not be sustained.

As to this, it appears, that Hubbell, a creditor of Walcutt, had attached the property in question, on a suit in his favour against Walcutt, on the 12th day of August; the writ in that suit was served, by Stoddard, a constable of Derby, who placed the goods attached by him in the hands of Hubbell, as his bailee, to keep them for him, and not to be given up, without a written order. And the defendant claimed, that, while Hubbell was thus holding them, he caused them to be attached on a suit in his favour against Walcutt, by a writ, served by the same officer, Stoddard, on the 26th day of August, two days before the plaintiff paid up the claim of Hubbell upon them, under his contract with Walcutt. The goods were attached in fact, but without a removal of them from Hubbell’s custody, and without any notice given to him. Was this a valid attachment ? We think it was ; and that the charge of the judge on this point was correct.

It was as competent for the attaching officer to make Hubbell, the creditor, his bailee to hold the property attached for him, as to have placed it in the custody of any other person ; and while he was thus holding it, it was, in legal effect, continuing in the care and custody of the officer, or in custody of the law. The same or any other officer could again have attached it, while in this situation. If it had been attached the second time, by a different officer, he would have had no right to take it away from the custody of the first one; and as it was attached by the same officer, there can be no reason why he should have removed it from the possession of his own bailee, to whose custody he might have remanded it the next moment.

The law requires no act of notoriety to constitute an attachment of property. Nothing more is necessary than that the officer should so take it as to have it in his power or custody. Perhaps, in the present case, the delivery of the second writ of attachment to the first attaching officer, with directions to attach these goods, was, of itself, a sufficient attachment of them. But, here was more than this ; the officer attached them in fact, not constructively, and they remained in the same custody under both attachments, until Hubbell’s first attachment was settled, on the 28th day of August. The officer had given no written order to Hubbell, nor had he done any other act relinquishing his legal custody of the goods. Hollister v. Goodalp, 8 Conn. R. 332. Turner v. Austin, 16 Mass. R. 181. Widgery v. Haskell, 5 Mass. R. 157. Denny v. Warren, 16 Mass. R. 420. Lyon v. Rood, 12 Verm. R. 233.

It would have been very proper, and indeed to have been expected of the officer, to have notified Hubbell, his bailee, that the property was again attached ; but we know of no law requiring this, and can not say, that the attachment was invalid, for want of such notice. So far as this might have conduced to prove a fraudulent attachment, the plaintiff has had the benefit of it, upon the question of fraud made at the trial.

The defendant’s writ of attachment was served, by Stod-dard, a constable of Derby. He attached the property situated in Derby, in that town ; but inasmuch as the defendant Walcutt resided in the town of Naugatuck, the attaching officer left his copy with the defendant in Naugatuck, describing the property attached ; and for this cause, the attachment is objected to, as invalid.

Where there is but one defendant, the service of process upon him is but an entire act, the performance of but one entire duty, and can be performed only, by one officer. We know of no law or practice authorizing one officer to commence such a service, and giving power to another, to complete it. If a writ of attachment against property is issued, the taking or attaching of it, is the first and principal step in the process of service; and the officer thus commencing the service, must finish it, by leaving his copy and returning his writ, setting forth his whole proceeding under it; and this, in the present case, he could not do, without going into the town of Naugatuck.

On the trial, the defendant offered in evidence the first writ of attachment in favour of Hubbell against Walcutt, with the officer’s return of service indorsed upon it, accompanied by the testimony of Stoddard, the officer. This was objected to, because the writ had not been returned to court, and the suit had been discontinued. If the object had been to make claim under the attachment, this objection might well enough have been made ; but it was only to show what was the situation of the property, when the last writ was served-that it was then in custody of the law, and under the controul, and in the legal possession, of the officer, when the defendant’s writ of attachment was levied upon it; and for this purpose, this evidence was admissible.

We sustain the judge at the circuit, in his charge, and in the admission of the evidence objected to.

In this opinion the other judges concurred.

New trial not to be granted.


author: Ellsworth, J. Waite and Hinman, Js.

text:
    The town of Naugatuck against The town of Middlebury.

      New-Haven,

      July, 1850.

    In 1807, the town of M. was incorporated, including territory taken partly frons the town of W; and in the act of incorporation, it was provided, that the expense of supporting inhabitants of those towns living without their limits, who should thereafter become chargeable without those limits, should be paid by W and M. according to the list of 1806. In 1807, W, and M, agreed in what manner they would divide the expenses of supporting paupers, who should became chargeable without said limits. In 1844, the town of N. was incorporated, comprising territory taken from W. S.} a pauper, was born, and has ever since had a settlement in that part of the town of Wn which thus became a part of N. At the time of the incorporation of M., he was living without the limits of W. and M., and afterwards became chargeable without those limits; one-fifth part of the expense of his support, which, according to the list of 1806, was M's proportion, being paid by M. to W. until 1844. In 1845, *S. returned to N., and was supported, as a pauper, by that town. In an action brought by N. against M, for its proportion of such support, it was held, I. that the pauper, by the common law of this state, irrespective of special legislative provisions, was settled in the town of N.; 2. that the agreement between W. and M in 1807, did not affect the question of settlement; 3. that there was no special provision in the charter of M, which subjected that town for the support of S., an inhabitant of, and living in, N; consequently, the plaintiff could not recover. [Two judges dissenting.
    This was an action of assumpsit, for supplies furnished, by the plaintiffs, to one Oliver Stephens, a pauper, from the 1st day of July 1844, to the 1st day of January 1849.
    At the term of the superior court in New-Haven, January term, 1850, the following statement of facts was agreed to, by the parties, and was, by the court, found to be true.
    1. Oliver Stephens, the pauper, was born, and has ever since had a settlement in that part of the old town of Waterbury, which is now Naugatuck.

      2. Middlebury was incorporated as a town, by a resolve of the General Assembly, passed in 1807, containing, among others, the following provisions : said town of Middlebury shall be liable for the support of their proportion of the poor of said towns, [referring to the towns of Waterbury, Wood-bury and Southbury, from which the territory of Middlebury was taken,] and of such as are now chargeable to said towns, according to their list of August 1806, and shall assume the maintenance thereof.”-“ And whereas there are inhabitants, previous to this incorporation, who live without the limits of Waterbury and Middlebury, and hereafter may become chargeable without said limits, whenever said charge shall happen, it shall be paid by said towns of Waterbury and Middlebury, according to the list of August, 1806.”
    3. At the time of the incorporation of the town of Middle-bury,, the pauper in question was living without the limits of both the towns of Middlebury and Waterbury.

    4. Afterwards, on the 28th day of December, 1807, the towns of Middlebury and Waterbury mutually agreed in writing, regarding the expenses of supporting the poor of said towns, who should become chargeable without said limits, as follows, viz., that the town of Middlebury should take, as their proportion of the poor of the town of Waterbury, to support thereafter, the widow Thankful Rowley, and three others named, not including Oliver Stevens, with a special stipulation as to Obadiah Scott.

    5. The pauper remained absent from both the towns of Waterbury and Middlebury, from the time of said act of incorporation, for a period of about fifteen years, when he became first chargeable, as a pauper, in the town of Danbury ; and soon thereafter was returned, as a charge to the town of Waterbury, where he belonged, and where he was after-wards, occasionally, a charge to the town, until 1844; when he again left the town of Waterbury, and was absent therefrom, and from the town of Middlebury, at the time of the incorporation of the town of Naugatuck, as hereafter mentioned.
    6. The town of Middlebury paid to the town of Waterbury one-fifth of the expense of supporting said pauper, whenever and wherever incurred, previous to the year 1844 ; that being the proportion of the poor of said towns, according to their list of August, 1806.
    7. The town of Naugatuck was incorporated, by resolve of the General Assembly, in 1844.
    8. Afterwards, on the 12th day of December, 1844, the towns of Waterbury and Naugatuck, by the select-men of those towns respectively, duly authorized under the resolution of the General Assembly, incorporating the town of Nauga-tuck, made a written agreement, apportioning and dividing the then present town poor, as follows, viz. “ They have mutually agreed upon the following list of persons as the present town poor of the town of Waterbury, mentioned in the resolution aforesaid, namely, Jabez TVelton," [and twenty-three others, among whom the pauper in question is not named.] " and in pursuance of the resolution of the General Assembly aforesaid, and of the power vested in us thereby, we have apportioned and divided the aforesaid present town poor between the towns of Naugatuck and Waterbury, as follows, viz., we have apporLioned and set to the town of Naugatuck, the following persons of the list aforesaid, viz., Garry Osborn, [and five others,] and the same shall be settled inhabitants of the town of Naugatuck, for all purposes, as specified in the resolution aforesaid ; and the remaining eighteen persons named in the list aforesaid, we have apportioned and set to the town of Waterbury; and the same shall be settled inhabitants of said town of Waterbury, for all purposes, as aforesaid."
    9. After the incorporation of the new town of Naugatuck, the pauper returned to that town, and on the 20th day of October, 1845, again became chargeable. And the town oF Naugawck has expended the sum of 154 dollars, 97 cents, for the support of said pauper, (in said town,) between the 20th day of October, 1845, and the date of this writ; one-fifth of which they now claim to recover of the town of Middleburq, due notice having been given, &c. Upon these facts, the questions of law arising thereon, were reserved for the advice of this court.
    Buel, (with whom was Kellogg,) for the plaintiffs,
    contended, 1. That upon the admitted facts, and by the provisions of the resolve of 1807, incorporating the town of Middle-bury, that town, from the time of the pauper, Stephens, first becoming chargeable, was liable for one-fifth part of his support; that being their proportion under such resolve. In the first place, the pauper living without the limits of the towns of Jlliddlebury and Waterbury, at the time of the incorporation of the former town, and afterwards, and before returning, becoming first chargeable without the limits of said towns, the liabiliiy of Middlebury for their proportion of his future sup~ port, became fixed, as a permanent liability, under said resolve. Priv. Stat. 1161,2. Secondly, by the common law of this state alone, in the absence of any different rule prescribed by the legislature, the pauper would have belonged, wholly to Waterbury. Bethany v. Oxford, 15 Conn. R. 550. Waterbury v. Bethany, 18 Conn. R. 424. But, thirdly, the-legislature, by the resolve of 1807, have prescribed a different rule from that of the common law, as to two classes of persons : the poor, then changeable ; and those absent, who should afterwards become chargeable without the limits of the two towns. To the latter class, the pauper in question belongs. Fourthly, the resolve is to be construed according to the apparent intention of the legislature, to be gathered from the entire language used, in connexion with its subject and purpose ; and a large construction is to be given, when it can be done, without violence to its terms. Rawson v. The State, 19 Conn. R. 292. Wolcott v. Pond, Id. 597. Bethany v. Oxford, 15 Conn. R. 550. Fifthly, the town of Middlebury, for more than twenty years, has given a practical construction to the resolve, by paying their proportion of the pauper’s support up to the incorporation of Naugatuck; showing the understanding of the towns of Middebury and Waterbury, as to the intention of the legislature.

      2. That the resolve of 1844, incorporating the town of Naugatuck, was not intended to discharge, nor did it expressly or impliedly discharge Middlebury from her liability for the support of the pauper Stephens, under the resolve of 1807, but only substituted Naugatuck as her partner in that liability, in place of Waterbury. Priv. Slat. p. 86. sess. 1844. In the first place, there is nothing in that resolve, that necessarily releases Middlebury from her former liability. Secondly, it had no operation, and was not intended to have, except upon the towns of Waterbury and Naugatuck, they alone being parties to it. Thirdly, it operated as, and was, a transfer or assignment to Naugatuck, of all that part of Waterbury, and its inhabitants, (including the pauper in question,) who were set off, with all their existing rights, among which was the right to draw from Middlebury one-fifth of the support of this pauper. Fourthly, the claim of the plaintiffs, works no injustice to Middlebury, and imposes on her no new liabilities. Fifthly, the resolve of 1807, having fixed upon Middlebury the liability for one-fifth of the support of this pauper, no subsequent legislative provision whatever, has discharged her from it. Sixthly, the liability of towns for the support of paupers, is a matter of positive law, and cannot be taken from one town and imposed upon another, without express authority from the legislature. Such a shifting of ha-bility cannot be effected by construction. Simsbury v. Hart-fords 14 Conn. R. 192.
    Kimberly and J. S. Beach, contra,
    contended, That Mid-dlebury, as a town, is not, and never was, Jiable for any portion of the expenses incurred within the limits of the ancent town of Waterbury, for the support of the pauper in question. They supported this poshion,
    1. As between Waterbury and Middlebury. In the first place, it is fuond, that the pauper is now. and ever has been, a settled inhabitant of that part of the ancient town of Wat-erbery now included in the new town of Naugatuck. Secondly, by the common law of this state, the pauper remained chargeable to the town of Waterbury. in which he had his legal settlement, at the time of the incorporatirn of Middle-bury, unless it is otherwise provided in the act incorporating that town, Waterbury v. Bethany, 18 Coon. R. 429, and cases there cited, Thirdly, by the act of 1507, incorporating the town of Middlebury, special provision was made for two classes of inhabitants only; frst, those inhabitants then poor and chargeable-that the new town should be liable for the support of its proportion of such persons, according to the list of 1508: and secondly. those inhabitants then being out of the binds of both towns, who should thereafter become chargeable without those limits-that such charge should be borne by said towns according to tneir respective lists of 1806. Fourthly. all inhabitants of said towns, then residing therein, and flit paupers. and all inhabitants then absent therefrom, and who should thereafter return, and become chargeable therein, were left to the operation of the common law, The pauper in question is within the latter description of persons, and so remained chargeable to Waterbury alone.
    2. As between Naugatuck and Middlebury. First, it is not claimed, that the act of 1S44, incorporating the town of Naugatuck, imposed any new obligation upon the town of Middlebury. Secondly, if it be admitted, that there was an implied contract, on the part of Middlebury, to pay to Waterbury a portion of this expense, such a contract was not assignable; and no action at law can be sustained by Nauga-
      tuck against Middlebury. Thirdly, if Middlebury has heretofore paid a proportion of such expense, it in no wise affects. the case. The question is, whether the town of Middlebury is legally liable; and that question is not affected, by the acts or declarations of the officers of the town. Ludlow v. Weth-ersfield, 18 Verm. R. 39. But fourthly, Middlebury has never paid any thing to Naugatuck.

   Ellsworth, J.

Oliver Stephens, the pauper, was born in Naugatuck, which was, then, a part of Waterbury, but is now a distinct town, by the name aforesaid. By the common law of this state, a person absent on the division of a town, is settled in the particular locality where born or settled ; and therefore Stephens, unless there be something more, is an inhabitant of Naugatuck.

Had this pauper been supplied by any other town than Naugatuck, it is certain that Naugatuck could have been sued for the support furnished ; nor indeed could any other town have been made liable. He was not born in the limits of the present town of Waterbury or Middlebury ; and hence they could not be made liable. Stephens cannot be settled in two towns ; and where is he settled, if not in Naugatuck?

The agreement proved, in this case, between the towns of Waterbury and Middlebury, how they will apportion between themselves the expenses incurred for paupers, “ who may become chargeable without said limits,” does not affect the question of settlement.

Naugatuck is liable, as if no such agreement had been made. How then can this town sue for the support of its own pauper ? If it takes the place of Waterbury, as being equitably entitled to the benefit of the provision in the charter, this will not help the matter; for that provision embraces only expenses incurred “ without its limits." The latter words cannot be rejected as unmeaning or inconsistent; nor is their meaning open to a serious question. The charter of Middlebury seems to have made no provision for absent inhabitants, who should return to their respective towns, and become poor. Perhaps the legislature expected the usual law to apply, as the chance would be equal in the two towns, in proportion to the extent of territory.

We advise that judgment be rendered for the defendants.

In this opinion, Church, Ch, J. and Stores, J. concurred.

Waite and Hinman, Js.

thought, that, by the last clause in the act incorporating the town of Middlebury, the inhabitants of Waterbury and Middlebury, then residing without the limits of those towns, who afterwards became chargeable without said limits, were thereafter to be supported at the joint expense of such towns ; and that the application of said clause was not restricted to the expense of supporting said paupers, while residing out of said limits; and, as the pauper in question was one of the persons to whom the clause properly applied, it was the duty of Middlebury to pay its proportion of the expense of supporting him.

They also thought, that the incorporation of Naugatuck had not varied the liability of Middlebury, in any respect: that its only effect was, to exonerate Waterbury from its liability, and cast it upon Naugatuck; and consequently, under the facts agreed to, in this case, the plaintiffs were entitled to recover the amount claimed by them.

Judgment for defendants.