author: Swift, Ch. J. ■ Smith, J. Gouxd, J. Ciiapmast, J.

text:
    Hovey against Magill.

      New-Haven,

    November, 1818.
    \V here .7, being' the authorized, agent ol n manufacturing company, gave to jB. a promissory note, in the body of which were the words, “ I promise to pay,” &c. the signature being “«A, agent for the M. -!/. Company and it appeared, that J. had been in the constant habit of signing notes in this manner, with the knowledge of the company, which had been regularly paid: it was held, that he was not personally liable.
    THIS was an action on a promissory note, wherein the plaintiff declared, that the defendant, by the name, of Arthur IV. Magill, agent for the Middletown Manufacturing yConi-pany, in and by a certain writing or note, under his hand, and by him well executed, dated the 18th day of August 1815, promised the plaintiff, sixty days from date, to pay to ■him» for value received, the sum of 300 dollars, in Mew-Fork money ; making a proferí of the note, and alleging a breach.
    The note read: on oyer was as follows : « Sixty days from date, I promise to pay William Hovey the sum of three hundred dollars, in Mew-Fork money, for value received. Mid-dletown, August 18th, 1815. Arthur W. Magill,

    Agent for the Middletown Manufacturing Company. ”
    On the trial, at Middletown, July term 1818, before Swift, Ch. J. and Brainurd and Chapman, Js., the defendant admitted the making and signing of the note, in the manner stated ; but claimed, that lie was not personally liable. In support of this claim, the defendant proved, by a duly authenticated copy of a vote of the company, passed on the 29th of March 1811, that he was, at that time, appointed the agent for transacting the business of the Middletown Manufacturing Company »” and by sundry competent witnesses, that he had ever since acted as agent for the company, and that he had been in the constant practice of signing notes, in the same manner, with the knowledge of the company, which had been regularly paid. This being the only evidence offered by the defendant, the plaintiff contended, that it did not prove an authority to bind the company, by his signature as agent. The court, to whom the issue had been referred, decided, that such evidence was sufficient to prove an authority to bind the company, by his signature as agent; and therefore, found the issue, and gave judgment, in his favour. The plaintiff moved for a new’ trial, on the ground, that this decision was erroneous ; and the court reserved the motion.

      Staples and Hotchkiss, in support of the motion,
    contended, that the defendant, by the note in question, had bound himself personally. Where one has an authority to do an act as a» agent or attorney, he ought to do it in the name oí him who gi\es the authority. Combes’ caw, 9 Co. 76 h. 77 a. Frontín v. Small, 2 Ld. Ray in. 1418. Mayhexv A al. v. Prince, i I .Hass. Rep. 54. .Stackpole v. Arnold, It Mass. Rep. 27. The undertaking in this note is In the name of Arthur W, .Magi11; the phraseology in the body of the instrument. “ l premise,” &c., is the most apt and adequate that possibly could be chosen, to denote an individual liability ; and the addition of “ agent” to the signature, is merely descriptive of his character. Thomas & al. v. Bishop, Q Sfra. 955. Talbot v. Godbolt, Felv, 1ST: M’ Williams v. Willis, 1 Wash. Rep. 199. Cullen v. The Duke, of queensbury & al., I Bro. Ch. Ca. 101. Thacher & al. v. llinsmore, 5 Mass. Rep. ?99. Forster v. Fuller, 6 Mass. Rep. 38. ■ Buffum t. Chadwick, 8 Mass. Rep. 103.
    If an agent make an absolute engagement to perforin per. sonally, he may be sued upon such an engagement; and that although he may be a public agent. 1 Com. Contr. 251. Appleton v. Sinks, 5 East, 148. Tippets v. Walker & al. 4 Mass. Rep. 595. Sheffield v. Watson, 3 Caines, 69. Gill y. Brown, 12 Johns. Rep. 383. 388.
    The- engagements of agents have been held to bind them personally" in two classes of cases : First, where the engagement is, in form, the engagement of the principal, but the agent has not the authority. Sumner v. Williams, 8 Mass. Rep. 162. White v. Skinner, 13 Johns. Rep. 30?. Tippets v. Walker & al. 4 Mass. Rep. 595. Johnson v. Ogil-by, 3. P. Wins. 2?9. Secondly, where it is, in form, the engagement of the agent, although executed in behalf of the principal, and with authority. Appleton v. Rinks, 5 East, 148. Talbot v. Godbolt, Felv. 13?. May hew & al. v. Prince, II Mass. Rep. 54. Stackpole v. Arnold, 11 Muss. Rep. 2?. The case before the court clearly belongs to the latter class.

      Whittelsey, contra,
    contended, that the law required no particular form of expression, in order to make the contract of a corporation, enter-'-! into by its authorized agent, binding upon the corporation ; that if it appeared from the face of the instrument, and the circumstances of the case, that the person contracting, acted, not on his own account, but as the agent of a corporation, with authority so to act, the corporation would be bound ; and that it did appear, In this case, from the face of the instrument, that the defendant acted as “ agent of the Middletown Manufacturing Company,” and fiutn the facts found in the motion, that he was, as he claimed to be, the authorized agent of the company, having, for a long time, acted as such, and having been in the constant habit of signing notes in this manner, with the knowledge of the company, which had been regularly paid. H» cited Shelton 8f al. v. Barling, 2 Conn. Rep. 435. Wilks Sp al. v. Back, 2 East 142. Hodgson v. Dexter, 1 Cranch 345. 365. Walker v. Swartwout, 12 Johns. Rep. 444. 448. Odiorne & al. v. Maxcy & al. 13 Mass. Rep. 178. Frost v. Wood,2 Conn. Rep. 23. Rex v. Bigg, 3 P. Wins. 422. Bulk-ley & al. v. The Derby Fishing Company, 2 Cora». Sep. 252. S. P. JTitíe v. T/te Derby Fishing Company, ⅞ Coran. Rep. 260. On the same principle, where the promise is made to the agent, be cannot, but the company must, bring the action, Bilmore v. Pope, 5 .Mass. Rep. 491.
   Swift, Ch. J.

In this case, it is conceded, that the defendant was agent for the Middletown Manufacturing Company ; that he had power to bind them ; and that this contract was made for their use and benefit. It is also agreed, that an agent can make himself personally liable on a contract for his principal. So that the question is, whether the signature of the defendant, “ Arthur W. Magill, agent of the Middletown Manufacturing Company,” is obligatory on the. company, or on himself.

When an agent, duly authorized, subscribes an engagement, in such manner as to manifest an intent not to bind himself, but to bind the principal ; and when, by his subscription, he has actually bound the principal $ then it is clear, that the contract cannot be binding on him personally. It will be agreed, that no precise form of words is required to be used in the signature ¿ that every word must have an effect, if possible ; and that the intention must be collected from the whole instrument taken together.

Who can entertain a doubt, upon reading the note in question, that it was the intent of the defendant to bind the company, and not himself ? It is, how» un-, said, that he has made use of the expression I promise,’’ which-is,.in-terms, a personal undertaking : but he lias qualified it, by adding his character of agent, which unequivocally shews, that he did not mean to bind himself. Again : it is said, he might have added this merely to distinguish the company from his private concerns. This is a far-fetched supposition, indeed. If such had been the object, it could much more effectually have been answered, by a proper mode of keeping his accounts. I can see no good reason for the addition of “ agent,” but to render the note obligatory on the company, and exclude all idea of individual liability. This is the plain language of the transaction ; and we ought to give it the obvious meaning, and not entrap men by the mere form of words. This mode of signing the note will fairly admit of this construction : I, as agent of the eompany, pledge their credit, or give their promise, to pay the note ; or, the company, by me as their agent, promise to pay it.

But if we consider the word agent as merely descriptio persona, we give it no operation, and really expunge it from the writing. We are bound, however, to give effect to every word, if possible ; and the only way to give this word any effect, is, to make the note binding on the company.

The case of Hodgson v. Dexter, 1 Cranch 345. is, in all respects, ad idem. There, the contract was made by « Samuel Dexter, Secretary of War.” He bound himself, and his successors, and subscribed the instrument by his own proper name, without any addition. The court decided, that as it appeared from the whole face of the agreement, it was made entirely on public account, and not for the private advantage of the defendant, it was not binding on him. But here was a signing in his private character ; yet it appearing from the body of the instrument, that it was on public account, the defendant was held not responsible. So in the present case, though the defendant uses the expression I promise,” which would import a personal engagement ; yet when it is coupled with the declaration, that he acts as “ agent for the Middletown Manufacturing Company,” the meaning of it is qualified, and explained, to constitute a contract binding on that company.

The case of Shelton & Parrot v. Darling, in this court, recognizes the same principle. That was a bill of exchange drawn on “ Noyes Darling, agent of the Commission Company and he accepted it, by the signature of ” Noyes Darling, agent C. C.” This question, it is true, was not made; but it fairly arose upon the record j for accepted is the same as I accept, and as «inch imports n pci*Mmal undertaking, as^ I promise. This point would have buen decisive in favour of the plaintiff ; but it escaped the attention of the counsel and the court. This would be. strange, if they had not al! considered, that such am acceptance did not imply a personal liability.

Thumb itix, Edmond, Brainard, and Peters, Js. were of the same opinion.

■ Smith, J.

I do not imagine there can be any doubt but that an agent of a company may receive property for its use and benefit, and so contract in writing as to pledge his individual responsibility, or that of the company, or both, as the parties shall mutually stipulate. A correct decision, in this case, will not, therefore, depend so much on solving any doubtful point of law, as on discovering the real intent and meaning of the parties. When I look at this contract, I cannot imagine words more appropriate to create a personal liability than I there find. What can be more effectual for this purpose than the words “ I promise to pay and his being agent to a company makes no difference with the nature and terms of the promise : it is, nevertheless, according to the obvious import of the language, his promise to pay. I apprehend, that no person could receive a note drawn in this manner, without understanding, that he had the individual promise of the agent, and might rely on his responsibility. And 1 apprehend, it is agreeable to the common course of business for persons who deal with an agent of a manufacturing company, to take their contracts with a view to the personal responsibility of the agent. People at large are not supposed to be acquainted with the precise state of the pecuniary concerns of a manufacturing company, or the amount of its funds ; and, of course, would feel unsafe to part with property, without the personal security of the agent. - On the other hand, the agent, who is supposed to be fully acquainted with all its concerns, cannot refuse to give bis individual security, without destroying all confidence in its responsibility. Hence, the practice of drawing and signing contracts like the one under consideration, which, while it contains a direct .personal obligation, on the part of the agent, contains also evidence, that he pledges his persona! security for and on account of the company — a practice no less dictated by necessity than propriety. And lienee, the practice, also, of the company’s paying off notes so drawn, and so signed. The court on the circuit seem to have proceeded on the ground, that a liability of the company would discharge the agent; but this, I think to he a mistake. Perhaps, in this case, the plaintiff might have proceeded against the company, and by proving that the contract was made for their benefit, might have recovered ; and especially, with the farther proof, which was adduced in this case, that they had usually paid notes drawn and signed in this way. But will it be said, that this is any reason why the agent should not also be liable, provided there is a direct personal obligation to pay ,• and that there is such obligation in this writing, I have already shewn.

Hosmer, J. was of the same opinion.

Gouxd, J.

My opinion is, that the note in question binds the defendant, personally. The question is matter of mere legal construction, to be determined only from the face of the instrument. For, the authority of the defendant to hind the company not being disputed ; there is no extrinsic fact, which can have any influence, in our determination. To show, that this remark is, in its strictest sense, applicable to the present case, it may be observed, that promissory notes, not negotiable, have, from time immemorial, been regarded, and treated, in our courts of justice, as specialties.

It is certain, that an agent may bind himself, personally, by a contract, made for the benefit of his principal. And the question, whether the one, or the other, is the party bound, may depend, either upon the form of the signature only, or upon the signature, taken, in connexion with something, appearing in the body of the instrument. The note, now in question, is in this form •, 441 promise to pay, &c. for value received y’ and signed 44 A. ft', JHagilt, agent for the Middle-town Manufacturing Company.” Now, the only question is, whose contract is this ? In other words, whose language is it ? If the principal, claimed to be bound by it, were a natural person $ the body of the instrument would afford no ground of inference, either way. For the pronoun, 44 1,” might denote either the principal, or the agent. But in this cese. the words of the note are, in my judgment, very material. For though it is true, in legal theory* that a corporation aggregate is an artificial, or civil person ; yet, the words “/promise,” as referred to such a corporation, are extremely unappropriate, and in the common use of language, and the common forms of written instruments, entirely unknown. Indeed, the pronoun, he, or she, would be quite as likely to be employed, with reference to such a corporation, where the language of a contract is in the third person, as the pronoun, J, would have been, to designate the manufacturing company, in the present case. It is true, that in Rex v. Bigg, 3 P. Wms. 422., a note drawn in this form, and signed “ Joshua Mams, on behalf of the Bank of England,” was, by a divided opinion, holden to be a bank-note. But this determination was founded upon the long and notorious usage of the bank, by which such notes had been recognized and adopted, by that corporation, as their own ; and in consequence of which a universal credit had been given them, as such, by the public. And upon the same principle, the same determination would have been had, I trust, whatever might have been the form of the instrument, or of the signature, thus adopted and sanctioned. Such also w as the principle, w hich governed the case of Witte v. The Derby Fishing Company, 2 Conn. Rep. 260. Judging only from the body of the note, therefore, I should certainly conclude, that it was the contract of the individual signing it.

But the form of the signature, it is said, establishes a different conclusion. If there were any inconsistency between the terms of the instrument, and the mode of signature $ that circumstance might present a distinct question from the one before us. But there is none. The signature of the defendant does not purport to have been made in behalf of a principal. In the f irm, “ J. W. Magill, agent for the Middletown Manufacturing Company,” the words, “ agent for” the company, are equivalent, only, to the words, “ agent of, or to, the company.” They do not, therefore, express an act of agency, as the words “ J. B. for C. D.” would do. They are mere description. I agree, that no precise form of words is indispensable to the execution of an instrument, by an agent, for a principal. But it must appear, in some way, that the instrument is executed in behalf of the principal j or it cannot be his act. Here, it does not so appear. ,

But why, it is asked, is the word, « agent,’* used in the signature, if it was not intended to bind the company ? It might, perhaps, as well be asked, why the pronoun, “ I,” is used, in the body of the note, if the person signing wras not intended to be personally bound Í But the more proper answer is, that such additions are often made, by way of description, when they can have no legal effect. It is not unusual for one, who, as surety, executes a joint bond, with the principal debtor, to annex to his name, the character, in which lie signs. But there is no doubt, that he is liable to the creditor, as principal. An executor, or administrator, who assumes a debt, due from the person, whom he represents, by giving his own note for it, frequently annexes to his name his representative character. But it is well settled, that the contract binds himself, personally, and not the assets in his hands. So also, in the present case, the defendant, probably, added the words “ agent for the Middletown Manufacturing Company,” to shew, that he was to pay out of the company’s funds, or that he was to charge the payment over to the company. But whatever may have been actually his object, the addition can, in my judgment, have no effect, upon the construction of the instrument.

This view of the case appears to me to be the correct one, ami is justified, 1 think, by the authorities introduced. These are very numerous j and I do not wish to enter into a minute examination of them. Of those, however, which have been: cited for the defendant, it Is proper for me to take some notice.

Tins case, of Wilks v. Back, 2 East, 142. affords no more support to the argument on one side, than on the other. Every circumstance in that case went to show, that the principas was hound, lie mast have been named in the body of the bond of submission. The agent, being himself abo a party., had signed and scaled, for himself, separately ; and thee, signed, “ For J. B. — M. W. :’3f a form, prescisely tantamount to, i( M. W. in behalf of J, 7i.” The intention to hind the principal was the clearest imaginable : the only question was as to the form of signature, (which was, undoubtedly, a proper one for binding the principal) *. whereas, in the present case, the intention is the main point in question •

In Gilman v. Pope, 5 Mass. Bep. 492. the action was brought by an agent of a corporation, as upon a promise made to. himself. The contract: did not even describe him, as agent,; but the court held, that he could not maintain the action : since the promise, if made to him, in his private capacity, would be void, as being without consideration. There was no question, and could be none, as to the proper mode of signing,: by an agent, to bind his principal : but as it appeared from the written agreement, exhibited iri proof, of the promise, that the assessment, for which the action was brought, was to be paid, for the benefit of the corporation, which was actually the party in interest ; the chief justice held, that the corporation might maintain the action. This case, then, has clearly, nothing in common with the present. Odióme v. Maxcy, 13 Mass. Rep. 178., though it resembles this case, in one respect, falls far short of the point, whiclt it is incumbent on the defendant to establish. The action was against a cotton factory company, as indorsers of two promissory notes : the indorsment, by the company’s agent, was in the same form, as that now before us : and the court held, that if the property, for which the note was given, was purchased for the company, they would be liable. It is true, then, that, so far as regarded the form of signature, the court was of opinion, that one exactly like the present, might hind the principal; and it may be admitted, consistently with my own views, that under the circumstances »f that case, such might be its effect. For there, as the note was made payable to the company ; as, before indorsement, it was the company’s property; and, as no individual, in his private capacity, could indorse it, so as to pass the interest; it might fairly be presumed, that the indorsement, containing the addition ofagent” for the company, was intended to be the company’s act. And if so, it might, by a very liberal application of original rules, (but certainly not otherwise), be considered as their act, in law. Here, however, no such grounds of presumption exist.

The same explanation is applicable to the case of Shelton v. Darling, 2 Conn. Rep. 435., where the indorsement was in the same form. There, the bill of exchange was addressed to Darling, as agent for the commission company ; and having been so addressed, by third persons, was regarded as a bill, drawn upon the company. That case, therefore, comes directly within the principle of the former one. It may be added, that in Shelton v. Darling, the liability of the company was, in tin's court, assumed, on both shies. That point, therefore, though involved in the determination, was not discussed, nor made.

In Hodgson v. Dexter, 1 Cranch, 345., it appeared from the whole frame arid structure of the body of the deed, that the lease was virtually made to the government: and that, so clearly, that the form of the signature was entirely disregarded by the court. It was a deed inter paries, between Hodgson, of the one part, and Samuel Dexter, the defendant, 54 Secretary at War,” of the other. The demise, was to

J “ Samuel Dexter and his successors” — containing covenants | by the lessor, with “Samuel Dexter and his stu cessors”-— ! and covenants by the defendant, for himself, and ids suc- | cessors.” It was apparent., upon the face of the deed, that I the lease was for the use of government; and the deler-Iinination was grounded, solely, up n the body of the instrument. No comment can be necessary to show, that that case is inapplicable to the present question.

The case of Frost v. Wood, 2 Conn. Rep. 23,, is equally irrelevant. Indeed, that is one of the clearest cases suppo-sable, of an act by agency, binding upon the principal. — ■ The defendant was not, as in this case, a corporation aggregate; hut a natural person: Íhe language of the note was “ J promise to pay” — signed, “For It. Wood, A. W. War-riner a form of signature, confessedly tantamount to “ A. It. by C. 7?.” The pronoun “ I,” was, therefore, very properly construed, as referring to the principal. It seems extraordinary, indeed, that the obligation, created on the part of the principal, by such a mode of signing, where the agent had competent authority, should ever have been doubted.

These, I believe, are all the authorities, relied upon, for the defendant; and none of them, as I view the subject, support his defence.

I shall not occupy time, for the purpose of explaining the authorities cited for the plaintiff; but barely remark, that they appear to me decisive in his favour. I am, therefore, of opinion, that there ought to be a new trial.

Ciiapmast, J.

It is admitted, in this case, that the defend - ant had authority to bind the company, whose agent he claimed to be, and that he borrowed the money, and gave the note in question, for the benefit of the company. The only question, then, presented by the motion, is, whether he executed the note in such form as to bind the company ; for if he did not, he must undoubtedly be bound himself.

The authorities cited by the plaintiff abundantly prove this position ; that the addition of “ treasurer of the joeky club” — guardian”—“ executor,” &c. produce no effect upon the obligation entered into, for this plain reason, that persons acting in those capacities, can bind only themselves. The addition of titles, whether civil or military, importing no power to bind other's, may well be rejected as surplusage. But where one acts as the agent of another, with full power so to act, and for the sole benefit of his principal, the form of his signature would seem to be of little importance, provided the character in which he acted, was apparent on the face of the obligation.

Was it not so here ? Why did the defendant add to his name, sí Agent for the Middletown Manufacturing Company 1” To bind himself in his personal capacity ? Or to bind those fot whom he acted ?

It is said, indeed, that the name of the company ought to have been signed ,; but will it be pretended, that this is indispensable ? Do the authorities support such a rule ? The case of Thomas v. Bishop, 2 Stra. 955. so much relied on by the plaintiff, and perhaps one which goes further in his support, than any other, does not warrant the position.

In that case, the bill was drawn on the defendant as « cashier,” but not accepted by him as such. He did not add to his name cashier. Had he done so, having authority to bind the “ Fork Buildings Company,” there can be little doubt but that there would have been a different determination.

The numerous cases against public agents, found in the books, sufficiently evince, that it is enough, that the agency appears on the face of the contract, whatever may be the form of the signaturc.

The case of Wilks & al. v. Back, 23 East, 142. seems to me decisive of this case. In that case, the Judges severally say, that it is immaterial whether the attorney put his name first, or last-

But the case, on which I more especially rely, is that of Shelton & al. v. Darling, 2 Conn. Rep. 435. I am unable to distinguish that from the case under consideration. A bill was drawn on the defendant as “ agent of the Commission Company,M and accepted by him thus — “ M'oyes Darling, agent C. C.” The Court held, that he was not. holden, but that he bound the company. After this decision, there seems scarcely room to doubt, that the defendant in this case is not hohleit.

Hew trial not to be granted.

         1 Wash. Rep. 199.

        5 Mass. Rep. 299-

       See Hodgson v. Dexter, 1 Cranch 345.


source: Caselaw Access Project

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

license: Public Domain

text:
    Alling, administrator of Gorham, deceased, against Munson.
    THIS was an action on the case, for the non-performance of an award. The submission and award were thus stated in the declaration ; “ That on the 28th day of December, 1814, sundry disputes and differences had arisen, and were existing, between the plaintiff, in his said capacity of administrator, and the defendant, concerning two notes executed by the defendant, to the said Gorham, deceased, in his the sftid Gorham’s life time, viz. one of said notes being for the sum of 157 dollars, dated the lftli day of February, 1812, and payable six months from its date, with interest; and the other of said notes, dated the same day and year, being for the sum of 500 dollars, payable one year fiotn the date thereof, with interest: and in order to make an end and final determination of all said disputes and differences, the defendant, and the plaintiff, in his said capacity, at JSTerv-Ilaven, viz. on the 28th day of December, 1814, submitted to stand to the arbitration and award of Henry Daggett and Stephen Twining, Esq’rs. arbitrators indifferently chosen by and between the plaintiff, in bis said capacity, and the defendant, to arbitrate, order, and finally award of, upon and concerning ail the premises : And the defendant, after-wards, via. at said JVew-Haven, on the day and year last aforesaid, in consideration of said submission, and that the plaintiff did then and there promise the defendant, that he, the plaintiff, would faithfully abide by, and fulfil whatever the said arbitrators should award and determine concerning the premises, on his part to be fulfilled, then and there promised the plaintiff, that he, the defendant, would well and truly perform ami fui ¡‘11 whatever said arbitrators should arbitrate, award ami determine, on his part to be performed and fulfilled, concerning the premises : and said arbitrators did undertake the business of arbitrating, ordering' and awarding between the plaintiff and defendant, of and concerning the premises ; and did, by their award, made after-wards thereon, viz. at New-Haven, on the 23d day of February, 1815, arbitrate, order and award between tbs plaintiff and defendant, in mariner following, viz. That a debt due to Charles Denison, Esq. of 80 dollars and 80 cents, from the defendant, arid a debt due from the defendant to Daniel Read <j¡~ Son, at the time of the date of said notes, were to have been paid by the plaintiff’s intestate, the said Gorham, and made a part of the consideration of said notes ; that said Gorham never paid said debt, and that 1 hi; amount thereof ought to be deducted from said notes; that there was due, including interest, to the said 23d day of February, 1815, from the defendant to the said plaintiff, in his said capacity of administrator, on the said note, the sum of 618 dollars and 77 cents; that the plaintiff should pay the arbitrators’ fees, being 8 dollars, and the cost of room and fire, being 1 wo dollars ; and that the defendant should pay to the plaintiff the said sum of 618 dollars and 77 cents: and also the sum of 10 dollars for, fees of arbitrators, and cost of room and fire : and that, on the payment of the same, by the defendant, the plaintiff should deliver up to the defendant the aforesaid notes; and that the costs of each party attending said arbitration, should be borne by each respectively.

      An administrator may submit a claim of his intestate to arbitration; and may, in that capacity, maintain a suit on the award.
    Arbitrators may award costs, at their discretion, without express authority, for that purpose, in the submission.

      Semi. A parol submission of a claim in favour of an intestate estate, to arbitration, by the administrator, is not within the statute of Frauds.'

      New-Haven,

    November, 1818.
    On the trial at New-Haven, August term, 1816, before Swift, Ch. J, and Brainard and Chapman, Js., the plaintiff’ proved a parol submission, and an award in writing, as stated in his declaration. The defendant contended, that the plaintiff, in his capacity of administrator, had no authority to submit the matters of controversy to arbitration; that he could not maintain an action, in that capacity, on the award; and that, as no power was delegated to the arbitrators to decide respecting the costs, they could not make an award relative to that subject. But the court charged the jury, that the plaintiff'had. authority, as administrator, to make the submission, and could, in that capacity, maintain the action; and that the submission being general,. the arbitrators had authority to award respecting the costs ; and directed the jury to find for the plaintiff the amount, of the award : which they accordingly did. The defendant thereupon moved for a new trial, on the ground of a misdirection. He also moved in arrest of judgment, for the insufficiency of the declaration. The questions arising on these motions were reserved for the consideration and advice of the nine Judges.
    JV. Smith and R. S. Baldwin, in support of the motions,
    contended, 1. That the plaintiff, as administrator, had no power to make the submission, and, of course, has no right of action on the award. No decided case authorizes such a power; and the decisions in analogous cases are against it. An administrator is a mere trustee; and it is settled, that trustees connot bind their cestuy que trusts, by a submission. A judge of probate being a trustee for the benefit of others, cannot submit their rights to arbitrament. Thomas v. Leach, 2 Mass. Hep. 152. Paine v. Ball <§• al. 3 Mass. Rep. 235. The act of submission, being a contract, which originated with the administrator, must, if it has any effect, bind him personally, and cannot operate upon the estate of the deceased, Smnner, admr. v. Williams ⅜ al. 8 Mass. Rep. 162. 200. 208. If an administrator perform an award against him, he is liable over for what he might have recovered, or hold, at law. Kyd on Awards, 40.
    2, That if the plaintiff, as administrator, had power to make the submission, yet being by parol, it is within that clause of the statute of Frauds, which provides, that no suit shall be maintained upon any agreement, “ whereby to charge any executor, or administrator,” &c. The judgment against an executor or administrator, on a contract made by him, in-that «capacity, is always de bonis propriis ; and if the plaintiff could be subjected in consequence of this submission, he would be made “ to answer damages out of his own estate.”
    3. That the award is bad on the face of it, because it awards costs, without any authority for that purpose, in the submission. By the submission, no power is given to the arbitrators to award upon any subject, except the “ differences concerning two notes,” existing between the parties, at the time. Candler v. Fuller, Wittes 62. Grove v. Cox,
      1 Taun, 165. Bradley v. Tunstow, 1 Bos. ⅜ Pull. 34. If the award is hadas to costs, itis bad in toto j because the payment of costs, is made a condition precedent to the giving up of the notes. Besides, if the law is with the defendant, on this point, he is entitled to a new trial, for the misdirection.

      Staples and L. E. Wales, contra,
    contended, I. That an administrator may submit a claim of his intestate to arbitration, and his submission will bind the estate. An administrator is the representative of his inteslate, \\ ith respect to the settlement of the estate. He has the whole legal interest, controul and disposition of the estate. He may discharge, or compound debts. He may institute suits, and prosecute or abandon them, at pleasure. The amount recovered by this award, would be assets in his hands. Kyi on Awards, 39. Barry v. Rush, 1 Term Rep. 691, 2. Pearson & al. v. Henry, 5 Term Rep. 6. JYettleton, adrar, v. Buckingham, 1 Root, 149.
    2. That the statute of Frauds could have no application to this case.
    3. That the power to award costs is incident to every submission, containing no provision to the contrary, Kyd on Jlwards 152. 396. Malcolm ⅜* al. v. Fullarton, 2 Term Rep. 645. Wood v. 0‘Kelly, 9 East, 436. McLaughlin v. Scott, 1 Binn. 61. Strong v. Ferguson, 14 Johns. Rep. 161. In this state, it has been the uniform practice for arbitrators to exercise the power in question; a practice in itself reasonable, and attended with no inconvenience. would seem to result from the nature of the submission, where there was no express provision. The rule is reasonable, and attended with no inconvenience. Immemorial usage has given to it the sanction of common law .: and it would now be unwise to depart from it.
   Swift Ch. J.

I am of opinion, that the authorities dearly establish the position, that an administrator can submit a claim of the deceased, whom he represents, to arbitration $ and that he, can, in that capacity, maintain ⅞ suit on the award.

Though there has been some difference of opinion and practice, in different countries, with respect to the power of arbitrators to award costs, where no provision is made in the submission ; yet the practice in this state has been, where the submission was general, and there has been no restriction on their power respecting costs, to consider the arbitrators vested with a discretionary authority to decide whether costs should be allowed, or not. Such a power

Tbumbuu, Edmond, BrainARD, Hosmer and Peters, Js. were of the same opinion.

Gored J.

I have no doubt, that an administrator has power to submit a claim, over which he has the legal controbl. Nor can I perceive, how the present submission is affected,by the statute of Frauds. And as to the plaintiff’s suing in his representative character, I take the rule to be, that an administrator, (not having taken a new written security to himself,) may always sue in that manner, if the money sued for, will, when recovered, be assets in his hands : as, in this case, it clearly will be.

There seems to me, then, to be no difficulty, in supporting the direction to the jury, except in regard to the costs of the arbitration. And if I was satisfied, that the awarding of costs, in cases, in which the submission contains no express authority, for that purpose, was sanctioned by any such genera!, arid long established usage, as could be deemed authoritative ; I would cheerfully acquiesce in it. For I think, that such a rule might be attended with convenience; and if it were established, parties submitting would be apprized of it beforehand, and, if the submission were silent, as to costs, would be presumed to have made their submission, with reference to it. But I am not aware, that there is any such general usage, where no power to award costs is given, by the terms of the submission : and upon strict original principles, arbitrators have no authority, except what is delegated to them, by the parties. Now, what was the authority, conferred upon the arbitrators, by this submission ⅛ An authority to award, only, upon certain claims and con-lroversi.es, or, in the language of the declaration, certain disputes and differences,” subsisting between the parties, at the time of the submission. But the costs, or charges, which might afterwards accrue, on either side, constituted no part of those disputes, or differences, and consequently, no part of the subject matter submitted. It appears to me. therefore, that so far as regards the costs of the arbitration* £¡IC. diicctioil of tllC COUl't WUS wrong.

Smith, J. concurred fully in this opinion.

Chapman, J.

The award, in this case, is claimed to be void, on two grounds :

1. That the administrator had no authority to submit.

2. That the arbitrators awarded costs.

As to the first point, were there no adjudged cases, I could entertain no doubt. The administrator, in respect to the personal property, dioses in action, &c. stands in the place of the intestate, and has the whole legal interest in them. He may dispose of the personal property, release all personal claims, compound, &c. It would, therefore, seem strange, if he could not submit, when he has power to discharge.— But the adjudged cases are too numerous to admit of a doubt on that subject.

The extent, however, of the administrator’s liability to the representatives .of the deceased, is a different question. They are not bound, in respect to their claim upon him, by the amount of the award; nor would they be, in case of a release, &c. Their claims remain open ; and in a suit on the administrator’s bond, a larger sum might be recovered against him, than might have been awarded to him. Yet, as between the parties to the submission, the award is final, so that either party, in case of a suit on the matter submitted, might plead the award in bar. It lies not, therefore, with the defendant, to say, that the award is not both mutual and final.

As to the second question — I admit, that the old and modern authorities are at variance with each other. In the case of Bussfield v. Bussfield, Cro. Jac. 577, 8. it seems to have been adjudged, that an arbitrator had no authority, without a special provision, in the submission, for that purpose, to award costsj but it is well known, that since that period, great changes have taken place, in the law of arbitrations. The following authorities will evince the truth of the remark. Malcom & al. v. Fullarton, 2 Term Rep. 645 Wood v. O'Kelly, 9 East 436. M‘Laughlin v. Scott, 1 Binn 61. Strong v. Ferguson, 14 Johns. Rep. 161.

Hie true criterion, after all, (as this point is now. for the first time, made before this Court.) is to discover, if wo can, what was the intention of the parties to the submission — Having discovered that, the conclusion follows as a matter of course. A man may agree expressly, or impliedly. The costs are an incident. If the-principal mailer is submitted, it would seem, that what was but an incident, would be included. If, however, further arguments were necessary, they might he drawn from a practice, which, I believe, has been universal, in this state. By agreeing to submit a controversy, the parties agree to abide the consequences ; one of which is the costs.

I think, therefore, the decision of the superior court was right.

New trial not to be granted ; and Motion in arrest insufficient.


author: Swift, Ch. J.

text:
    Beach against W. S. and S. Hotchkiss.
    A NEW trial having been granted, in this case, pursuant to the advice of the nine Judges, (ante 425. 431.) it was had at Mew-Haven, August term, 1818, before üwij't, Ch. J., aud Brainard and Chapman, Js.
    On this trial, the plaintiff proved, that lie, the defendants, Gad Peek and Goodrich ‡ Deforest were joint owners of, and equally interested in, an adventure of corn-meal and lard, shipped for the West-Indies, in the Francisco ; that the whole of this property was placed in the hands of the defendants, to ship and sell to the best advantage, and to account with the other owners for the nett avails thereof: that the defendants did ship it, had the whole management of it, obtained the avails in a cargo, which they sold, and after charging all expenses to the adventure, found the nett avails to be 7215 dollars, 14 cents; that the defendants stated their account of the nett proceeds of the adventure, making the batanee in favour of the adventure, after deducting all expenses, said sum of 721;? dollars, 14 cents j which account they delivered to Gad Peek, stating, on the back of it, his share, amounting to 1803 dollars, 28 1-2 cents; and that they paid to him this sum, as his share of the adventure, which he received as such. But the plaintiff proved no express promise of the defendants to pay him ids share of the adventure; nor was any account eve!- rendered or shewn to the plaintiff, or to Goodrich if Deforest. On these facts, the plaintiff claimed, that he was entitled to recover. The defendants, on the other hand, insisted, tlial the plaintiff could not recover, without proving an express promise.— The cause was taken from the jury, under an agreement of the parties, that if the court should he of opinion, that the plaintiff was entitled to recover, a verdict should be entered for him for one fourth part of the nett proceeds of the adventure, with interest; but that, if the court should be of opinion that the plaintiff could not recover, a verdict should be entered for the defendants, for their costs. The questions arising on this case were reserved for the consideration and advice, of the nine Judges.

      Where a severance is made of a joint claim, by the party liable to it, by paying to one or more his or their proportion, the others may sue separately.
    struck,by the parties, Where, in a proper matter of account, a settlement has been made, and the bal. anee ascertained and assumpsit will lie to recover such balance.
    But where C. and J). were jointly concerned, in equal proportions, to a mercantile
    adventure, of which JL had the sole management; and,after its termination, an account was stated, the nett proceeds were ascertained, and a balance in favour of the adventure was struck by A.; who delivered such account to J}., with the amount of B’s share stated on the back, and paid him that amount as his share ; it was held, in an action of assumpsit brought by C. for his share, that such statement and payment to li. were not equivalent to a liquidation of the partnership account, and a statement of the sum due to <?„ without which the action muid not be sustained,

      New-Haven,

    November, 1818.
    Staples, for the plaintiff,
    contended, that as the defendants had turned the adventure into money, ascertained the nett proceeds, struck the balance, and found the amount of each one’s share, and paid to one of the concern his share; there was a severance of the joint interest, previously subsisting j the defendants had waived any further right to account ; and were liable in assumpsit, without an express promise. He cited Garret v. Taylor, 1 Esp. Dig. 225. (Gould’s edit.) fCirkman v. New stead, Ibid. I Chitt, Plead. 6. 26. Smith v. Barrow, 2 Term Rep. 476.478. Wetmore ⅜ at. v. Barker ‡ al. 9 Johns. Rep. 307. 309. 12 Mass. Rep. 34.
    Denison,. contra,
    insisted, that one partner cannot maintain assumpsit against his copartner, on any claim arising out of the business of the copartnership, except where an account has been rendered, a balance has been struck and settled between the parlies, and there has been an express promise to pay. In this case, there has been no account stated with the plaintiff, nor delivered to him. Nor on the account delivered to Gad Peck was there any balance struck in Savour of the plaintiff; nor did that account shew, that any thing was due to the plaintiff. Can rendering an account to Peck alone, and paying him his share, hc'imide equivalent to rendering an account to, and striking a balance with, the other partners respectively? At any rate, there has been no express promise to pay ¡he balance. To shew that tiiis was necessary, he was proceeding to refer to some authorities ;  when he was stopped by the Court.

       The following- cases were minuted on his brief Moravia v. Levy, 2 Term Rep. 483. n. Casey v. Mrush, 2 Gaines, 293. Niven v. Spiekermwtfl2 Johns. Bep. 401,2. Murray v. Bogeriü al. 14 Johns. Rep, 318.322.

   Swift, Ch. J.

Where there is a joint interest, or a joint, cause of action, all the parties in interest must join in a suit to recover it; but’where a severance is made, by the party liable to the claim, by paying to one or more, his or their proportion of the debt or interest, there the others may bring their separate actions against him ; lor he has, by his own act, severed the claim.

Where, in a proper matter of account, a settlement has been made, and the balance ascertained and struck, by the parties ; assumpsit will lie to recover such balance.

But, in this case, it appears, that there has been no liquidation of the accounts, by the parties; and that the balance due to each has not been ascertained. The defendants have made a statement to one of the concerned, and paid him what they agreed to be his part; but no account has been rendered to the plaintiff; no agreement has been made respecting the balance ; and the accounts arc now open, liable to be contested, by the plaintiff or defendants. The plaintiff’s remedy, then, must be by bill in equity, and not by assumpsit.

The other Judges were of the same opinion.

Verdict and judgment to he entered for the defendants.


author: Swift, Ch. .T. Goran, J.

text:
    Luddington against Peck.

    New-Haven,
    November, 1818.
    Trespass will not lie for an act done under a process, valid on tlie face of it, and regularly issued by a court of competent jurisdiction.
    For an abuse of lawful process, scien-ter et mah-tiose, an action on the case is the proper remedy.
    An alias execution, issued, after the original one had been paid, but returned unindor-sed, on a judgment not appearing from tlie record to be satisfied, reversed or set aside, is a valid execution ; and the debtor, if aggrieved, can obtain redress only by audita querela, or by an action on the case for a wrong, ful and malicious usg of the authority pf Jaw.
    THIS was an action of trespass vi et armis, for an assault ami false imprisonment, tried at Mew-Haven, August term, 1818, before Swift, Ch. J., and Brdinard and Chapman, Js.
    On the trial, the plaintiff proved, that he had been imprisoned, by Moses 8, Beach, a deputy sheriff, on an execution ip favour of the defendant, against the plaintiff, issued on a judgment of the Mew-Haven county court; that the defendant delivered the execution, on which there were some partial endorsements, to the officer, after the term originally limited for its return, had expired, with directions to procure it to be renewed, and then to execute it; and that the officer accordingly procured it to be renewed, by the court which issued it, and executed it within its fife. The defendant then proved the judgment in his favour, against the plaintiff, on which the execution was issued, which did not appear from the record to have been satisfied, reversed or set aside$ and justified under the renewed execution, w hich was duly returned, and had never been set aside by the court. The plaintiff then offered parol testimony to prove, that the judgment had been fully paid to the defendant, previous to the renewal of the execution, by sundry articles of produce, agreed to be received thereon; to the admission of which the defendant objected. The court decided, that the testimony was inadmissible, and excluded it. After a verdict for the defendant, the plaintiff moved for a new trial, on the ground that this decision was erroneous ; and the court reserved the motion.

      Staples and Hitchcock, in support of the motion,
    contended, 1, That the defendant could not justify under an execution merely, but must prove a subsisting valid judgment of the court granting the execution : consequently, that evidence, shewing, that the judgment had been fully paid and satisfied, before the defendant sued out the execution in question, ought to have been received. Bul. M. F, 23. Britton v. Cole, 12 Mod, 175. S, C, 1 Ld. Raym. 305. Barker, admx. v. Braham ⅜ al., 2 W. Black. 866. Tumor v. Fágate, Baym, 78, The officer, however, is justified, if he obey the precept, Philips V. Biron <§* al. 1 Stra, 509.

      That trespass was tin; proper form of action. The party, who wrongfully sues out Jinn l process, is a trespasser, lie abuses the process of the court, and cannot claim its protection. 1 ('■¡lift. Plead, 184, 5. He is in the situation of one, who causes an arrest, by false information, Slone-house v. Elliott, 6 Term Rep. 315.

      Baldwin and 11. 8. Baldwin, contra,
    stated, 1. That trespass is not sustainable- for an injury effected under regular process of court, whether mesne or final: 2. That an execution, until set aside, is a good justification in any form of action : and were pioceeding to support tiiese propositions, by authorities ; when they were stopped by the Court.
   Swift, Ch. .T.

Trespass will not lie for an act done tinder a legal process, regularly issuing from a court of competent jurisdiction. Case only will lie; and that: on the ground of malice, and want of probable cause.

Trespass will lie only in cases where the process is irregular, and void upon the face of it. The question, then, iri this case, is, whether the execution, by force of which the plaintiff was imprisoned, was regularly issued upon a valid judgment ?

The judgment was properly rendered between the parties, and, on the face, of the record, appeared to be unreversed and unsatisfied. The plaintiff offered to prove, that the judgment had been paid to the defendant, by sundry articles of produce, agreed to be received thereon : but this could be no satisfaction or discharge of the judgment. When the defendant produced the first execution, unindorsed and unsatisfied, the clerk of the court was bound to renew it, or grant an alias. He could not investigate the fact, whether it had been paid. The execution, then, w as regularly issued, and was valid. A contrary doctrine would lead to serious inconveniences. It might be a litigated question between the parties, whether the execution was paid or not. The defendant could enforce his claim only by renewing the execution. If he should He under a mistake with regard to the payment, he would be subjected as a trespasser for a mistaken exercise of a legal right. But the plaintiff had a complete remedy. If the judgment had been satisfied, after the rendering of it, lie could have had relief by audita querela, and have recovered his costs; but if this action is sustained, a party never need to have recourse to an audita querela; he may bring his action of trespass, and not only avoid the judgment, but subject the party to pay damages for attempting to enforce it, in a lawful manner.

If the defendant, knowing the judgment to be satisfied, had obtained a renewal of the execution, the plaintiff might have brought his action on the case; and the question of science and malice would have been put in issue. But if this action can be sustained, the defendant might be subjected to pay damage, when he acted without malice, under a mistake, and really supposing he had a legal right. On the sánte principle, every plaintiff would be liable to be sued* if he brought an action, and failed to recover.

Goran, J.

There is no such distinction as has been claimed, at the bar, between the effect of an arrest, on mesne and on final process. Where process, of either kind, is void, the execution of it is illegal, and the party procuring it to be executed, is, regularly, liable it! trespass. But where the gravamen is the abuse, or wrongful use, of lawful process, (and all process not strictly void, is lawful and “"f alid, till set aside by due course of law,) the only remedy in damages, for the party injured, is trespass on the case.

Now, the process, in the case before the court, was, clearly, not void. Process, issued by a court, having jurisdiction of the subject matter of the suit, is never void, unless there is an irregularity, either in the process itself, or in the mode of issuing it. But in the present case, there is no pretence of any want of jurisdiction, or authority in the court, from which the execution issued ; it is regular upon the face of it; and, was sued out according to the established course of practice. It is clear, then, that the process was lawful, to every intent; and there was nothing illegal, in the mode of executing it. But the regular execution of lawful process, cannot, in the nature of the thing, be a trespass. Whenever there is a cause of action, in such a case, it is founded upon the wrongful and malicious use of the authority of law.— Malice is of the gist of the action ; and must be expressly alleged, and proved. And this consideration, alone, is decisive, that trespass will not lie. For if it would, there would certainly be no need of averring, or proving, malice.

The plaintiff’s right of action, if ho has one, is of precisely the same mituie, as if lie had been arrested, on mesne process, in an action of debt, on the original judgment, recovered against him, or «pon any other claim, which liad, before, been satisfied, or upon pretence of a demand, which never existed; in each of Which cases, it is agreed, that trespass on Ihe case would he his only remedy.

The case of Turnor v. Felgate, Raym. 73. 2 Sid. 125., and others, of the same class, where the process in question was irregular, and had been set aside, before action brought* are all inapplicable. But the case of Waterer v. Freeman, Hob. 205. 266., in which the ground of complaint was of exactly the same general nature, as the present, is, by conse-que.nce, decisive of the question. In that case, the defendant, who had obtained a regular execution against the plaintiff, and on which the plaintiff 's goods, to the full amount of the recovery, had been seized, took out a second execution, and levied the money, out of other goods of the plaintiff, while those first seized, remained in the hands of the sheriff. The action was case. The declaration specially alleged malice, (?. e. science, in the defendant, of the seizure under the first execution, and an “ intent to vex and double-charge” the plaintiff:) and this was holden to he indispensable — . Chief Justice Hobart, in delivering the opinion of the court, went into a full exposition of the principles, upon which the right of recovery was founded ; ami the action was sus~ tained. Now, the only difference between the gravamen in that case, and in this, is, that in the former, the wrong, complained of, was done to the property, whereas, in the present, it was to the person, of the plaintiff. But, this difference is, very obviously, immaterial. If, then, the determination in that case was correct; (and no one, I presume, has ever doubted it;) it follows necessarily, that the plaintiff cannot recover in this. For if case was the proper remedy, in the one : it is impossible, that trespass can lie, in the other.

The other Judges wore of the same opinion,

New trial not to he granted.


author: SwiRT, Ch. J. Gottxd, J.

text:
    Hughes and Grannis against Barney and Smith.

      New-Haven,

    November, 1818.
    Where the plaintiff', in a general action of account, declared, that the defendant received of the plaintiff, on board a sloop bound to a certain port, certain enumerated articles, the proper goods of the plaintiff, to transport, sell and dispose of; it was held, that a writing- given by the defendant to the plaintiff, acknowledging the receipt of goods, which was to entitle the plaintiff to one sixth part of the profits of the cargo, at the return of the voyage, was not admissible to prove the declaration, as it went to shew a liability different from that imtrender the evidence less irrelevant, that had Smüff forth the his^declaration, and assigned a breach of the contract there», expressed.
    THIS was an action of account, wherein the plaintiffs declared, “ that the defendants, at Georgetown in the state of South-Carolina, on the 13th of April 1812, being masters of the sloop Three Sisters, then bound on a voyage to Charleston, and elsewhere, thence back to Georgetown, received of the plaintiffs on board said sloop, of the proper goods of the plaintiffs, [specifying the articles] to transport to Charleston, and elsewhere, and to sell and dispose of the same to the best advantage of them the plaintiffs, and returns make, and their reasonable account render to thepiaintiffs, when thereto required.” The declaration then stated, “ that the defendants, thereupon, at said Georgetown, on said 13th of April, 1812, made and executed their certain writing or receipt, in the words and figures following, vito. Received on board the sloop Three Sisters, the above goods, which is to entitle Hughes and Grannis to their part of loss and gain in the cargo that is on board, that is, the third of the one half to be paid to Hughes and Grannis, at the return of the voyage, Georgetown, April 13th, 1812. Elihu Smith,

      Hanover Barney.”

    The plaintiffs further averred, “ that said voyage has long since been returned, and the defendants have long since disposed of said cargo and goods; yet the defendants have never paid to the plaintiffs the third of the one half of the avails of said cargo, although the defendants have made great gain, viz,, the sum of 3000 dollars, by the sale and disposition of said cargo ; nor have the defendants, though often requested thereto, ever made any return to the plaintiffs of said articles of goods, nor any part thereof, nor rendered to the plaintiffs any account, but have wholly neglected and refused so to do.”
    the trial at JTew-Haven, August term, 1818, before Swift, Ch. J., and Brainard and Chapman Js., the plaintiffs offered the writing recited in the declaration, as proof to support the declaration. The defendants adhiitted the exe-cu^0n ^,e writing, but objected to its being read to the jury as evidence in the cause, on the ground that it was i****elevant. The court sustained the objection, and excluded the writing. The plaintiffs excepted to this decision of the court, and, atice a verdict against them, moved for iin /.- tri.il, on that ground. Tire motion was reserved in the usual manner.

      Staples and ICimberhj, in support of the motion,
    contended, that the wrhing offered in evidence, by the plaintiff", was admissible, ]. Because it pi'ssvi s 1 hut Use articles v,ere received, by the di fe nil ants, as charqui in tin’ declaration.

      il, Because il shews, that-'.they were received, by the tie-fendants, to he accounted fot,

    3. Because it conduces to prove, that they were to be accounted for, in ¡he manner stated,

      Bristol, contra,
    after remarking, that the declaration calls upon the defendants to account for goods, the property of the plaintiffs, contended, that the writing in question does not conduce to prove such declaration, for these reasons. 1. That it only proves, that the plaintiffs and defendants were jointly intcresled in certain goods on board the Three Sisters,

    2. That when the, plaintiffs claim, that the defendants have received property of them, to sell and account for, they cannot recover, under such a declaration, by shewing that they, with the dcfeiuiants, were j doily interested in the property.
    S. That the. Hitting forth of the writing in the declaration, does not make it proper evidence. The plaintiffs cannot claim, that, they have two counts, one for goods owned by .themselves, and one for goods owned jointly by them and the defendants. That part - of the declaration, which sets forth the writing, «loes not state any case, or distinct canse of action. It merely seis forth certain evidence, which the plaintiffs say they have to support the allegations in the declaration, and which «loes not conduce to prove those allegations. It is, therefore, to be regarded as surplusage.

      N. Smith, on the same side,
    was stopped by the Court.
   SwiRT, Ch. J.

This is a general action of account. The plaint iff has recited a cerium writing, acknowledging the receipt of “ the above goods bat there is no allegation, that the above goods were the goods described in the declarations or what goods they were. The allegation, then, respecting the receipt, is a mere nullity, and cannot constitute a distinct count, to prove which the writing would In relevant.

The writing or receipt offered in evidence not only disproved the allegations of the plaintiff in his declaration, but clearly proved an entirely different contract, or engagement, from the one declared on ; and that the defendant was not accountable in the manner claimed by the plaintiff. The evidence, therefore, was not relevant; and was properly rejected by the court.

Gottxd, J.

The declaration charges the defendants, as bailiffs of certain enumerated articles, “ the proper goods of the plaintiffs,” and of which the defendants have rendered no account. The writing, offered in evidence, in support of the declaration, shows, not that the defendants were bailiffs of any of the proper goods of the plaintiffs ; but that they had received the enumerated articles, as part of a cargo, of which they and the plaintiffs were joint owners, and of the whole of w hich the plaintiffs were entitled to one sixth part of the avails. But the evidence, to be relevant, ought to show a liability, on the part of the defendants, to account for the particular goods described, and in the manner stated. in the declaration : whereas the writing goes to prove a liability to account, not only in a manner, entirely different from that alleged, but even for different property j i. e. for one sixth of the entire cargo, instead of the whole of the enumerated articles, which formed a part of it.

There is, however, a singular twofold breach laid, which, it is contended, obviates this objection. It is not, as has been claimed in the argument, a different statement of the contract, in the nature of a second count; but an assignment of the breach, with a sort of double aspect: one part ofit referring to the contract, expressed in the writing j and the other, to that previously alleged in the declaration. But the first breach, or (if it may more properly be so called) the first part of the breach, assigned, is not within the contract, stated, nor the second within that, contained in the writing, recited. Nor can the recital of the writing make the least difference in the case. It is merely % statement of evidence 5 and a plaintiff cannot, by reciting evidence, render it admissible, where it would not, otherwise, be so. It is, in neither case, admissible, unless be has alleged a cause of action, to which it is applicable. The writing in question was, therefore, properly rejected.

The other Judges were of the same opinion.

New trial not to be granted.


author: Swift, €1». J. HosmeR, J.

text:
    Frisbie against Fowler and wife :
    in error.
    THIS was an action of slander, brought by Benjamin R. Fowler and Peggy Fowler, his wife, against Frisbie, charging him with having “ uttered and published, of and concerning the said Peggy, the following false, scandalous and malicious words, to wit, she (meaning the plaintiff) is as common as the New-York wkores, and has been kept as a mistress nine years ; and she may help herself, and be damned, for I can prove it.” Another count stated the Words thus : « She (meaning the plaintiff) is a whore, and as common as any common whore in the streets ; and I have had to do with her, for nine years past, as often as I pleased ; (meaning thereby that the defendant, for nine years past, had, as often as he pleased, unlawfully had carnal knowledge of the body of her, the plaintiff.”) No special damages were alleged.
    The plaintiffs obtained a verdict, with 1150 dollars damages 5 and judgment being rendered accordingly, the defendant brought the present writ of error, assigning for error the insufficiency of the declaration.
    Words with a violation of ⅛⅛⅛ themselves.

      E. Huntington, for the plaintiff in error,
    contended, that the words spoken were not actionable in themselves. He cited Byron v. Elms, Comb. 391. Gascoigne <$• use. v. Jtmb-ler, 2 Ld. Raym. 1004. Buys ⅝ ux. v. Gillespie, 2 Johns, Rep. 115. Brooker v. Coffin, 5 Johns. Rep. 188.
    The counsel for the defendants in error
    were stopped by the Court.

      New-Haven,

    November, 1818.
   Swift, €1». J.

It is true, that i» England, to charge a woman with a breach of chastity- — as to charge her with guilty of adultery, or fornication, or to call her a whore — -is not actionable, except by custom in London, withv out stating and proving special damage ; because these are not offences punishable by the common law, but only in the ecclesiastical courts, where the party injured by such charges must seek redress. But as by the laws of this state, the breach of chastity, in every form — from adultery to mere lascivious carriage — is punishable by statute, the consequence has been, that these charges have become words atv tionable in themselves. This point has been repeatedly decided, and may be considered to be settled law in this state.

HosmeR, J.

The words spoken by Frishie, impute the crime of adultery to Mrs. Fowler, and are alleged to have been uttered falsely and maliciously. This charge^ if true, would subject her to an indictment for a crime involving moral turpitude. By the common law of this state, (to her bonour be it spoken,) words imputing to a woman, whether she is married or single, a violation of chastity, are in themselves actionable,

. No objection is perceived, to the sufficiency of the requisite allegations, or the regularity of the proceedings.

The judgment of the superior court, therefore, is unquestionably correct.

The other Judges were of the same opinion.

Judgment affirmed.

         From the earliest period of our government, adultery has been, by statute, an indictable offence, and subject to severe punishment. It was, for some time, a capital crime ; the punishment was then altered to whipping, burning on the forehead with the letter A., and wearing a halter ; and lastly, by the act of May Session 1816, it was al'ered to imprisonment — the man in new-gate, the woman ⅛ a common gaol, — from two to five years. Incest and polygamy are crimes punishable with eqtul severity. Fornication and lascivious carriage expose the offenders to corporal punishment; which, it ought to be remarked, however, is seldom, if ever, inflicted. If.


author: Smith, J.

text:
    Baldwin against Norton and others.

      New-Haven,

    June, 1817.
    JJV* the report of this case, ante 161. 168., Judge Smith is stated to have concurred in the opinion of Judge Edmond. This is true as to the result; but as he pi acceded on very different grounds in coming to that result, it seems proper to subjoin, in this place, a correct note of his opinion, with which the Reporter has since beenfurnished.

   Smith, J.

It appeared from the plaintiff’s bill, and the farts proved in this rase, that on the Kith of March, 180f, Horace Baldwin gave a mortgage of a farm of land, to secure the payment, of a note of 1761) dollars, to Timothy Leonard : andón lite I Oth of May 1808, he gave a mortgage of the same land to Jlshbel Baldwin, to secure the payment of a note of 500 dollars : and furl her. that on the lSIh of May 1811, Horace Baldwin conveyed, by quit-claim deed, his equity of redemption in the huid, to Leonard, and, in consideration thereof, took up his note. Whether an express contract was entered into beta,ecu Horace Baldwin and Leonard, that the latter should pay the debt to Jlshbel Baldwin, docs not appear : nor is it: material, in the present case, to enquire : because the nature and legal effect of the arrangement made between Horace Baldwin and Leonard place the rights of Jlshbel Baldwin on the same ground as though such contract did appear; and many circumstances exist in the case strongly calculated to induce a belief, that if there was no express contract, it was the understanding of 1 he parties, that Leonard should pay the debt to Jlshbel Baldwin. 1 consider the purchase of the equity of redemption by the first mortgagee, and cancelling his debt against the mortgagor, as being, in the nature and legal effect of the transaction, a purchase of the land, subject to the second mortgage. After this arrangement, Horace Baldwin can have no interest in the land, in any event; and, of course, no interest in removing Ibe incumbrance of Jlshhd Baldwin.

On the other hand, after the arrangement made between Horace Baldwin and Leonard, vesting in the latter art indefeasible title, subject only to the mortgage of Jlshbel Baldwin, Leonard must be alone affected by that mortgage ; arid whether a remedy is sought by ?■ bill to redeem, or to forc-close, still Leonard alone has the interest. I consider him, therefore, as assuming the debt and the mortgage of Jlshbel Baldwin ; and so far as it regards the incumbrance on the land, as stepping into the shoes of Horace Baldwin. Where there are two mortgages, and the first mortgagee wishes to become a purchaser of the estate, I see no more appropriate method of doing it, than by an arrangement of this kind with the mortgagor j which secures to him the estate, at all events, by discharging the second mortgage. If a first mortgagee wishes further security, he will, of course, take another mortgage : if he wishes to purchase the ultimate equity, retaining his mortgage, he will make the purchase, holding his debt uncancelled. But where the mortgagor and first mortgagee both understanding!}' intend a sale and purchase of the estate, subject to the second mortgage, they will usually make precisely the arrangement which was made in this case. The character of mortgagee, by such arrangement, is lost, and merged in that of mortgagor. There can be no such thing as a mortgage in equity without a debt. If that is assigned, the pledge follows it; if it is cancelled, the pledge is discharged.

That Leonard does not sustain the character of mortgagee in equity, sufficiently appears from the mere fact of giving up the note j which has ever been considered as the most effectual mode of discharging the debt. Had he added a discharge in writing, in the fullest manner, it would not have added to the effect. The delivering up of a note, is a contract executed; and, if done voluntarily, without fraud or mistake, it will effectually discharge the debt, even without a consideration. But in the present case, there was a good consideration. An equity of redemption is an interest in land, recognized by law, and in some cases, of great value 5 in the present case, when united with the interest of the first mortgagee, probably of as great or greater value than the debt.

There has appeared some solicitude, in this case,'lest the first mortgagee should be postponed to the Second ; but parties must be at liberty to make any contracts they please, and must be supposed to make them with a view to all the consequences, which the law attaches to them. But in the present case, the contract may have been, and probably was, an advantageous one to Leonard. This would be the case, if the land was worth more than enough to pay both mortgages ; and it appears that Leonard soon after sold the land, by a dear deed with warranty, to Norton, upon the consideration of 2400 dollars, and took a mortgage to secure the purchase money — a sum more than sufficient to pay both mortgages. By this deed, it should be remarked also, Leonard actually laid himself under obligations to Norton to raise Jlshbel Baldwin’s mortgage, as the continuance of it was a breach of his covenants of seisin and warranty.

This arrangement between the mortgagor and first mortgagee, has been compared to a foreclosure of the equity of redemption by the first mortgagee, without making the second mortgagee a party. To my mind, however, there is little or no analogy. The foreclosure of a mortgage is a proceeding well known in chancery, and all the rules regarding it are well settled. The mortgagee still retains his character; and his debt, to many purposes, remains unim~ paired. Payment, under various circumstances, may yet bf, made, and the foreclosure opened. And as it regards the second mortgagee, the debt remains, in all respects, tho same after a foreclosure, by the first mortgagee, without making him a party, as before. In the present case, the debt has been paid to the satisfaction of the debtor, and his note given up to be cancelled j and his character of mortgagee has become merged in that of mortgagor.

Still less do I see the analogy, which has been claimed, between this case and that of a debt barred by the statute of limitations. In case of a stale mortgage, where the statute of limitations has attached upon the note, no doubt the debt in equity still remains ; not so, where <he debt has been paid by voluntary agreement of the parties, and the note given up to be cancelled.

It has been said, also, that Jlshbel Baldwin may redeem' out of the hands of those claiming under Leonard, by paying the original mortgage money j and that this will do complete justice between the parties. But if the view l have taken be the correct one, Jlshbel Baldwin can no more redeem now, than he could, if there had never been a mortgage to Jxonard, and the purchase of the equity of redemption had been an original purchase, paying the same consideration as he has now paid, by giving up the note. In that case, it might as well be said, that a mortgagee shall be permitted to redeem from an .assignee of a mortgagor, by paying the purchase money, as to say, that he may redeem in this case. The difficulty in the way of a redemption, is, that there is no jirst mortgage to redeem, or debt to pay j and although títere were once a mortgage and a debt, yet by a voluntary agreement of the parties, the former has been destroyed, and the latter it as been turned into purchase money for the estate, subject only to Jlshbel Baldwin’s mortgage. Had the land risen in value, could not those claiming under Leonard effectually resist a redemption by Jlshbel Baldwin ? If it has fallen, shall not the right to redeem be the same ?

I am, therefore, well satisfied, that the legal title remaining in those claiming under Leonard is a mere title under a satisfied mortagage, which equity will transfer to Jlshbel Baldwin, together with the equity of redemption, unless his debt is paid. I am, therefore, perfectly clear, that on this point the superior court were correct in the decree, which they passed.

Rut, in my judgment, that court were incorrect in admitting evidence of usury, riot on the ground of objection taken at the trial, that notice had not been given, but on the more fatal ground take» before this Court, that no allegation of usury was contained in the plaintr’s bill. As, however, the court were, in my opinion, correct, in finding the debt paid, the point of usury became immaterial; and although the court may have erred in admitting the evidence, yet this Court will not, in their discretion, grant a new trial, while it appears from the whole record, that the cause has terminated correctly.

I am. therefore, of opinion, that a new trial ought not to be granted.


author: Ellsworth, J.

text:
    Townsend against Hoyle and others.
    Where sundry proprietors of lots fronting on a strip of land, which had been thrown open and occupied as a highway or street in the city of N. H., to a small part of which G claimed a subsisting and exclusive title, signed a writing, addressed to the city authorities, requesting them to lay out such street according to law, and assess the damages, which the applicants thereby agreed to pay to the city treasurer; and this request having been complied with, A, describing himself as city treasurer, brought an action, founded on the writing, to recover such damages ; it was held, that as the promise was neither made with A, nor on his account, the action brought was not sustainable.
    Where it was urged, as a further ground of defence to such action, that the undertaking of the defendants was void, for want of consideration, and as being against the policy of the law ; it was held, that as the defendants had a peculiar and local interest in the granting of their request beyond that which they had in common with other citizens, they might legally bind themselves to indemnify the city, [One judge dissenting.]
    Where it was objected to the validity of the laying-out of a street in the city of N. H., that only the South line of the street was run, and it was not found to be of common convenience and necessity ; and it appeared, that the land of this street having been dedicated by the owners, it had been opened and occupied as a public street, for several years, and its limits defined by buildings and fences on both sides: after which, the street, as thus dedicated and occupied, was accepted, as a public highway, by the city authorities; it was held, that though the survey mentioned only the South line, the street was sufficiently laid out and established.
    City highways must be recorded in the city records, but need not be, in the records of the town,

      New-Haven,

    July, 1849.
    This was an action of assumpsit, brought by Amos Townsend, jun., as treasurer of the city of New-Haven, to recover of the defendants the damages assessed for the laying-out of St. John street in that city.
    The cause was tried, on the general issue, at New-Haven, January term, 1849.
    In support of the undertaking set forth in the declaration, the plaintiff introduced the following writing, signed by the defendants: “Mayor, aldermen and common council. We, your petitioners, would ask your honourable body to lay out St. John street, and, by appraisers, according to law, to rate and value all damages of laying-out, and such property as lies in said street, for which we, the signers of this petition, agree to pay to the city treasurer.” The plaintiff also claimed to have proved, that a certain parcel of land lying within the city of New-Haven, had formerly been laid or thrown open for public use, by the proprietors thereof on each side, and had been, by them, opened and dedicated to the public, as an open street or public highway, running East and West, and known by the name of St. John street; that the proprietors had erected dwelling-houses and other buildings on each side of said street; and that said street had been thus opened and occupied as a public street, for ten or twelve years, and its limits marked and defined, by buildings and fences, on both sides thereof. It was also claimed and admitted, that one Nelson H. Gaston owned, or claimed to own, a narrow strip of land, about one or two feet in width, running parallel with and near to the side-walk on the South side of the street; which Gaston claimed he had not relinquished or dedicated to public use, as part of the street. The plaintiff then claimed to have proved, that the sole object of the defendants in making the application above stated, was, to remove the claim of Gaston to said strip of land, which lay in the street in front of their lands and buildings, and interfered with their free passage one way and the other. They therefore desired said street to be laid out or accepted, by the city authorities, as a public street, as well for their own individual benefit, as for the public use.
    For the purpose of proving that said street had been laid out and accepted as a public street, within the meaning of the writing signed by the defendants, the plaintiff introduced in evidence, a copy of the proceedings of the mayor, aldermen and common council of the city of New-Haven, at a meeting held on the 26th of August, 1847. This document purported to be a survey and laying-out of the South line of St. John street, specifying the termini, with the intermediate courses and distances; “taking into said street a narrow strip of land, owned by N. H. Gaston, beginning &c., and extending about 140 feet in length, and varying from 1 to 3 feet in width.” At a meeting of the freemen of the city, held on the 20th of October, 1847, this survey and laying-out was approved; and St. John street, so surveyed and laid out, was accepted as a public highway. It was proved, that some or all of the defendants, as well as Gaston, were present, when such survey of the South line of the street was made ; and no one claimed to have the North side surveyed, or objected to the proceedings. The sum assessed to Gaston as damages, was 375 dollars.
    Upon the facts so claimed and proved, the plaintiff insisted, that he had right to recover in this action.
    The defendants claimed, and requested the court to charge the jury, 1. That if the defendants were liable at all, no action could be maintained against them, by the present plaintiff, but only by the city of New-Haven. 2. That St. John street had not been laid out, within the meaning of the defendants’ undertaking; because the North line of the street was not run; because the width of the street was not defined; because it was not found to be of common convenience and necessity; and because the proceedings were not recorded in the records of the town of New-Haven. 3. That the undertaking of the defendants was without consideration, and against the policy of the law.
    The court charged the jury, 1. That if from the facts claimed and proved, the defendants were liable upon their undertaking, this action might be sustained, by the present plaintiff. [This was stated proforma.]

    2. That the survey of the South line of St. John street, the taking and appraising of the land of Gaston, and the declaring of the land occupied as a street to be a public street, with the assent of the defendants, as claimed by the plaintiff, was a sufficient acceptance of the street so dedicated to the public, and a sufficient laying-out of the same, within the meaning of the writing signed by the defendants, although the proceedings had not been recorded on the records of the town of New-Haven, and although said street was not declared to be of public convenience and necessity.
    3. That if the defendants made their application for the laying-out of the street, as well for their own individual benefit as for the use of the public, as the plaintiff claimed; this constituted a good consideration for the promise of the defendants, and such promise was not void as being against the policy of the law.
    The jury returned a verdict for plaintiff, and the defendants moved for a new trial for a misdirection.

      C. A. Ingersoll, (with whom was Bristol,) in support of the motion,
    contended, 1. That the plaintiff had no legal right to sue upon the contract declared on. Piggott v. Thompson, 9 Bos. & Pul. 147. Gilmore v. Pope, 5 Mass. R. 491. Bainbridge v. Downie, 6 Mass. R. 253. 258. Gunn v. Canting, 10 Johns. R. 387. Spencer v. Huntington, 6 Conn. R. 312. Bissell v. Spencer, 9 Conn. R. 267. Buckbee v, Brown, 21 Wend. 110. Sailly v. Cleveland, 10 Wend. 156. Ham. on Part. 3. Chitt. Cont. 53.
    2. That the consideration upon which the promise was made, has not been performed : in other words, the consideration has failed. First, it is not found, that the highway was needed. Secondly, no survey or laying-out has been recorded in the town records. Thirdly, there has been no highway surveyed, by the mayor, aldermen and common council of the city. Beardslee v. French, 7 Conn. R. 125. Hinckley v. Hastings, 2 Pick. 162.
    3. That the consideration, if performed, was not such an one as would sustain the promise. If the highway was needful, it was the duty of the city authorities to open it, and pay for it; and a promise to pay money, in consideration that the promisee will do that which it is his duty to do, is of no validity. Chitt. Cont. 52.

      4. That the promise of the defendants was against the policy of the law. Chitt. Cont. 673. 677. Fuller v. Dame, 18 Pick. 472. Commonwealth v. Sawin, 2 Pick. 547. Parks v. Boston, 8 Pick. 218.

      Dutton, (with whom was E. K. Foster,) contra,
    contended, 1.That the consideration of the defendants’ promise was sufficient. In the first place, they, from their local situation, were principally interested in the laying-out, and would be peculiarly benefited thereby. It would not only promote their convenience, but it would render their property more valuable. Secondly, the defendants received at least a benefit in common with the other citizens, and were jointly liable with them for the expense. This is a sufficient consideration for a several promise. Thirdly, the transaction may be regarded as a promise to pay the city treasurer, for the benefit of Gaston, and as an agreement with Gaston to pay him, if he would dedicate his land.
    2. That there was nothing in the case contrary to public policy. The law favours the laying-out of highways; and its policy is, to make those pay who receive the benefit.
    3. That the laying-out of St. John street, was legal. The charter of the city gives power to the mayor, aldermen and common council to lay out and alter highways; and they are the sole judges of the convenience, and necessity.

    4. That the action will lie in the name of the city treasurer. Here it is to be considered, in the first place, that the prom-isee is often contingent, when the promise is made; as in the case of rewards offered in advertisements. Secondly, the plaintiff need not have advanced the consideration. If A agree with B, to pay C a sum of money, C may sustain the suit. Fel-ton v. Dickinson, 10 Mass. R. 287. Cabotv. Haskins, 3 Pick. 83. Thirdly, where a promise is made to a treasurer, by the name of his office, he can bring the suit. Fisher v. Ellis, exr., 3 Pick. 322. Thompson v. Page, 1 Metc. 565. In the case last cited, the treasurer was to be appointed after the promise.
   Ellsworth, J.

Of the several objections which are made in this case, there is only one that is attended with serious difficulty; and that is, sueing in the name of Townsend, the treasurer.

The promise was made to the city of New-Haven, and not to this plaintiff; nor has he any interest in the fulfillment of it, to be entitled to damages for its breach. Although the promise is to pay him, it is neither made with him, nor on his account; and without one or the other of those requisites. we know of no law that will permit Townsend to sue for himself, or for the city, in his name.

This principle was established in Piggot v. Thompson, 3 B. & P. 147., half a century since,-a leading case, ever since followed. There, a promise was made to commissioners for draining lands, (a corporate body,) to pay their treasurer certain tolls. All the judges held, it was a promise to the corporate body only, and the treasurer had nothing to do with it, merely because he was designated to receive the money. So in Gilmore v. Pope, 5 Mass. R. 491, on a promise to pay installments to “A B, agent,” it was, held, the agent could not sue in his own name. The same was held in Bainbridge v. Downie, 6 Mass. R. 253, and in Gunn v. Cantine, 10 Johns. R. 387; in which last case, the court say, “a mere agent or attorney, not having any beneficial interest in a contract, cannot maintain an action upon it, in his own name.” The same doctrine is affirmed in our court, in Spencer v. Huntington, 6 Conn. R. 312, and in Bissell v. Spencer, 9 Conn. R. 267. So in Buckbee v Brown, 21 Wend. 110. and Sailly v. Cleveland, 10 Wend. 157.

We know of no cases which lay down a different doctrine, unless it may be Fish v. Ellis, 3 Pick. 322, and Thompson v. Page, 1 Metc. 565. Whatever apparent authority those cases may afford, we do not think the court meant to hold differently from Piggot v. Thompson, and Gilmore v. Pope; or to lay down any principle inconsistent with the views we have just expressed.

It was said, on the trial, the contract was void, for want of consideration; and furthermore, that it was against the policy of the law, as being an engagement to pay money to the city of New-Haven, for performing its duty.

We agree with the defendants’ counsel, that a promise to pay public agents a premium for doing their duty, is illegal and void; nor would we sustain a contract tending to such a consequence, or as being a restraint on the exercise of unbiased judgment. But this is not of that character. For many years, St. John street had been dedicated to the public use, and the only thing to be done, was to define it, and have it recorded. It is true, one Gaston, who had united in the act of dedication, claimed, that a narrow strip of a few feet near the middle of the road, had not been given up by him to the public, for which he asked to be indemnified. The defendants, wishing to have this impediment removed, if indeed it existed, and the road accepted and recorded, applied, in form, to the city, to have St.John street laid out and defined-i. e. to be made entirely explicit-and then accepted and recorded. None of the parties expected a new highway to be laid out through private or enclosed land. This strip was to be taken, of course, and to be appraised, if need be; and these defendants, having a special interest here, undertook to pay the damages. In this, we perceive nothing exceptionable, or of dangerous tendency. We see no temporizing with public agents, and no restraint upon a free and unbiased judgment.

Then, as to consideration. The defendants are not only benefited in common with other citizens, but, obviously they had a peculiar and local interest, and well might obligate themselves to indemnify the city for assuming the burthens and responsibilities of a new public highway.

This is all the determination the case calls for; but we must not be considered as assenting to the proposition, that a promise by individuals to pay a part of the expenses of public improvements, ordered by public authority, is of course illegal and void. We think the amount of a public burthen, or the cost to the public of an improvement, may properly enough enter into the question of expediency or necessity.

A canal, a rail-road, a bridge, a new street, a public square, or a sewer, is called for. If made in one way, or in one place, it will be much better for the public, though more expensive; but individuals, especially benefited, stand ready, by giving their land, their money or their labour, to meet the extra expense. Will these promises be void, as being without consideration, or against public policy ? We think not.

It was further objected, that St. John street was not laid out by bounds and limits, nor recorded in the records of the town of New-Haven, nor found to be of common convenience and necessity. Our answer is, that this street, as dedicated and used, before the 26th of August, 1847, together with its new and exact South line in the report, with the little strip of Gaston’s land, is sufficiently laid out and recognized, by the city of New-Haven, by its doings on the said 26th of August. City highways must be recorded in the city records, and need not be, in the records of the town. A different construction of the statute would be novel and absurd.

Nor can it be necessary, for the common council, to preface their laying-out a highway, by declaring they find such highway expedient and necessary. This necessity is sufficiently implied in their action on the subject; inasmuch as they can act only in such a case. They certainly need not record their motives, where they have acknowledged jurisdiction to act. It might be otherwise, did their jurisdiction depend upon their first finding a preliminary fact to be true.

We advise a new trial.

Church, Ch. J., and Waite, J. concurred fully in this opinion. Storrs, J., concurred also as to the incapacity of the present plaintiff to sue; but would go further, and hold the undertaking of the defendants, without consideration, and opposed to public policy. Hinman, J., being a citizen of New-Haven, declined giving any opinion.

New trial to be granted.