text:
    Lord and another vs. Lord and others.
    A testator, by his will, directed all his just debts and personal expenses to be paid, out of such personal estate as he should not thereafter specifically dispose of; and, in case of a deficiency of such estate, appropriated certain real estate for that purpose. He then proceeded to dispose of all the remainder of his estate, making his nephew W, one of the devisees and legatees, and added to his will, the following clause : “ I will and direct, that my nephew W, pay S, all the money which is due to her, upon the writing,” &e. The real and personal estate appropriated, being insufficient for the payment of all the testator’s debts ; it was held, that this was a direction to W, to pay S, individually, from his share of the estate, and on his own account, and not as executor.
    This was a case, submitted to the superior court for New London county, upon a statement of facts, agreed to by the parties, under the statute of 1848, (Slat. 1849, pp. 109, -110;) and was reserved for the advice of this court.
    The case embraced the following facts :

      On the 15th day of February, 1852, William Lord, of Lyme, died, having made his last will and testament, which was subsequently duly proved and approved.
    The first provision of said will is as follows:
    “ I will, order, and direct, that all my just debts and funeral expenses be paid, out of my'personal estate, as I shall not hereafter specifically dispose of; such as my neat stock, farming utensils, which, if not sufficient to pay the same, then the thirty-five shares of my Paterson railroad stock, I will direct sold, to pay.”
    Said will then contained a devise to Nancy, the testator’s wife, of the use and improvement, during her widowhood, of his dwelling-house, garden, a lot of land adjacent, and farm buildings; also, the privilege and right of using “ as much fruit for herself as she may need, growing on the farm, and shall have convenient pasturing for one cow, and one horse, and sufficient English hay for the same, and stabling for the appropriate seasons, and shall have firewood sufficient for two fires, all cut and carted to her house, in proper season, and cut suitable for the fire, and piled in the wood-house; also, twenty bushels of Indian corn, twenty bushels of oats, ten bushels of rye, twenty bushels of potatoes, three hundred pounds of good fat beef, and half of the rent of the shad fishery of my half of Goose Island, (so called,) all to be delivered to her, at her house, of good quality and in good order, on or before the 25th day of December, of each and every year, during the time aforesaid, by my nephew, William M. Lord, as a condition of the devise of the adjoining farm to him, or by whomsoever shall be in possession of said farm for the time being ; it being made a special charge on said farm, and on every part of the same, for the time being, and to remain so, to all intents and purposes, so long as my said wife shall be entitled to receive the same.”
    The testator also bequeathed to said Nancy, the use, so long as she should remain his widow, of certain articles of personal property, and his household furniture, and the remainder thereof, to his adopted daughter, Sarah A. L. Holdridge.
    He then bequeathed to said William M. and his executors, one hundred shares of the capital stock of the Washington Bank, in trust, to pay the dividends thereon to said Sarah, for her sole and, separate use, during her life ; and, after her decease, to transfer the same to the heirs of her body, to be equally divided between them; and, in default of such heirs, to be transferred to, and equallyMivided between, the children of the said William M. He then devised and bequeathed to said William M. and his executors, forty-two shares of Stonington bank stock,—fifteen shares of New London bank stock, in trust, to pay the dividends thereon to the testator’s wife, during her widowhood, and thereafter to surrender one-half of said bank stock to the exclusive use and disposal of said Sarah, and one-half thereof to the children of said William M.; also, two farms and other real estate, subject to certain reservations and charges, in favor of his mother-in-law, Phoebe Lord, during her life, and of the sisters of the devisee, while sole and unmarried ; also, a small piece of land, absolutely, and in fee. He also devised to said Nancy, the use of a certain house, with the adjacent land, during her widowhood, and the remainder to the said Sarah A. and her heirs forever.
    Said will then proceeded as follows :

      “ I will further direct my nephew, William M. Lord, to sell my Starr house, and lot, if there is not sufficient property left of what I have directed to be sold, to pay all my debts and legacies against my estate, and funeral expenses; and, whereas I gave to my brother Enoch Lord, now deceased, an obligation, dated April 26th, 1834, promising to pay to him, during life, the interest that should arise, and the principal, which was one thousand dollars, which should be unpaid after his decease, to his surviving daughters, in such proportions to each, as my judgment might direct, I will, order, and direct, that my executors shall pay such balance as may be unpaid on said obligation, to Phoebe Lucas, Sarah Marvin, Nancy Lord, Betsey J. Lord, Esther Ann Lord, Eunice Peugh, all daughters of my brother, Enoch Lord, deceased, to each and every one alike, after deducting from the respective payments, such sums as I have advanced to them, and charged in account on my book.
    “ My will is, that my nephew, William M. Lord, erect a fence, provided it shall not be done before my decease, around the monument of my first wife, to enclose a yard, twelve by eight feet, the fence to be constructed of stone posts, six in number, with three round iron bolts, to go around the yard, holes to be drilled through the posts, to have the bolts pass through the same, with an iron ring enclosed on one end of each bolt, and a screw cut on the other end, with a cap nut to hold it fast; the bolts to be painted once in five years, with black varnish or black oil paint. My will further is, that my nephew, William M. Lord, shall continue, during his life, to keep the above fence in repair, and the monuments which may be enclosed within said fence, the monuments to be kept free from moss, and well lettered, by my said nephew, William M. Lord, and to all who may be in possession or own the same farms, after his decease, forever.
    “ I give and bequeath to our adopted daughter, Sarah Ann Lord Holdridge, all the printed books which I own, at my decease, to her, her heirs and assigns forever.
    “ My will is, that my executors pay to Eliza L. Parsons, Sally Wing, Georgianna Parsons, daughters of Eliza L. Parsons, and Mary H. Howe, fifty dollars each.
    “ I will, order, and direct, that my nephew, William M. Lord, pay Sarah L. Marshall, now residing in Nantes, in France, all the money which is due to her, upon the writing which she holds against me, deducting from the same, such sums as I have charged to her, upon my book. I will, order and direct, my executors, to pay Margaret Salter, two hundred dollars. My will further is, that all the moneys which are in the possession of Walter Mead, Esq., now in New York, whenever the same shall be collected, shall be equally divided, betwixt my beloved wife, Nancy Lord, our adopted daughter, Sarah Ann Lord Holdridge, and my nephew, William M. Lord.
    “ I will, order and direct, that my houses which were in possession of Daniel Smith, and the lot of land on which they stand, and which were mortgaged to William W. Rod-man, and sold to me, by said Rodman, and which I foreclosed against said Smith, and have got possession of, by a foreclosure and decree of our court, and I have given to said Rodman, a writing for, to quitclaim to him the title to said property, whenever said Rodman shall pay to me the ■money for which the above property was pledged to me, or will consent to have the same sold at auction, or any other way, so that the money due me may be paid, so that my executors can have the same ; then I direct them to pay the same to the daughters of my brother Enoch Lord and brother Joseph Lord, deceased, equally between them, share and share alike. I will, order, and direct,.that my executors erect a marble monument near the monument which stands over my first wife, as their judgment may direct, after my decease and burial, within two years.
    “ I give and bequeath the residue of my estate to the daughters of my brothers, Joseph and Enoch Lord, both now deceased, if not already above disposed of, to them equally, share and share alike.
    “ I constitute and appoint my beloved wife, Nancy Lord, and William M. Lord, to be executors of this my last will and testament; hereby revoking all other and former wills, by me, at any time heretofore made.”
    Said William M. accepted the office of executor, but said Nancy declined said trust. Between the execution of said will, and the testator’s death, his personal property became considerably lessened, especially by the advancement of about $2,000, to Sarah A. L. Ploldridge, upon her marriage to Henry B. Noyes, and by a transfer to his wife, of the Paterson railroad stock, mentioned in the will, which was valued at about $1,700.
    His real and personal estate was inventoried at twenty-two thousand three hundred and five dollars and seventeen cents.
    At or about the time of executing his will, he executed a deed of gift, of certain real estate, in Stonington, of the value of about $17,000, in favor of William M. Lord, which deed was left with the will, to be delivered, at -the testator’s decease : it was so delivered, and took effect.
    During the interval, between the execution of the will, and the death of the testator, his indebtedness was considerably increased, especially by the sum of $1,050, allowed by the commissioners upon the estate, to George W. Lord. The debts against the estate, allowed by the commissioners, amounted to $5,504.23.
    The debts, expenses and losses, were about four thousand dollars, over and above the amount of the real estate, appropriated to their payment, and the personal estate not specifically bequeathed.
    It was claimed by the said Nancy Lord, and the said Sarah A., that the debt due to Mrs. Marshall, should be paid by the said Wm. M., from his own property, and the balance of the deficiency, if any, from the real and personal estate bequeathed and devised, in ratable proportions. Said William M., and other ^devisees, claimed, that such deficiency should be paid by the sale of so much as might be necessary, of the bank stock and other personal property bequeathed as aforesaid, in rateable proportions.

      McCurdy and Chadwick, for Wm. M. Lord and others.

      Ingham, for Nancy Lord and another.
   Ellsworth, J.

In the settlement of this estate, a question is raised between the devisees, how the balance of $4,000 shall be provided for,—as the executors have applied all the property, they were directed to apply, and nothing is left, but property which is specifically devised : one party contending it shall be paid exclusively out of the personal estate which is specifically devised, and the other, out of the personal and real, equally.

There is no question, that, as a general principle of law, personal property must be taken for debts, before real, and that, where it is all specifically devised, the same rule applies to it, as a class, i. e., the personal before the real. Brainard v. Cowdrey, 16 Conn. R., 502. 2 Jarman, 546. 1 2 Eq. Ca. Ab., 459. If there was nothing more in the case than this, we should hold with those who contend, that all the personal bequests must be taken before the land ; but, we do not hold, that the personal property which is given to the widow, in lieu of dower, is subject to this rule of contribution, and to that extent we might make an .exception ; for it is said in the books, she takes as a purchaser, and, therefore, is not subject to a contribution; and we are not certain, but our statute, p. 277, gives strength to this idea. But, this point we do not mean, at this time, absolutely to settle ; for it was not much discussed at the bar, nor indeed, of necessity, is „ it presented in the question raised. Of course, we leave this point as the case leaves it, and will only refer the counsel, if the point hereafter becomes important, to the following cases. 6 Met., 54. 6 Paige, 305. 6 Gill, 120. Amb., 245. 1 Rop. on Leg., 297, and 1 Russ., 543.

The chief dispute has been, whether the debt due from the testator, to Mrs. Marshall, of $1,996.50, as since ascertained, is to be paid by William M. Lord, on his own account, or as executor. If the former, then this debt is a lien on his specific share, and he must pay it and not charge the payment to the estate; if the latter, he is entitled to an order to sell, and may charge the payment to the estate.

This is purely á question of construction, and must be decided upon an examination of the will, in all its parts. This we have done, as well as we are able. The will was drawn by the testator himself, and, as it would seem, from time to time, as he thought of the matter, very immethodically, and so confused, as that it can not easily and satisfactorily be interpreted, on the point in dispute : and we are not, by any means, certain, that, after all, we interpret the will, in conformity to the testator’s intention.

In the first part of the will, the testator directs, that all his debts and funeral expenses shall be paid. This duty was imposed upon his two executors, and as an expression of intention, it shows the testator supposed his executors would pay his debts: for this duty we should not naturally look to any subsequent part of the will, for further intention; nor do we, on examination, find- any further intention, except an order to his executors, to pay a debt, (if it be one,) to the heirs of his brother, Enoch Lord. But this is not an ordinary debt, but one which requires some specific directions. With this qualification, the first clause in the will is the only order to the executors, to pay debts.

Now, where this debt, due Mrs. Marshall, is spoken of, further on in the will, the language is peculiar and significant. “ I will, order and direct, that my nephew, William M. Lord, pay Sarah L. Marshall, all the money which is due to her upon the writing,” &c. On its face, it is clearly a direction to his nephew William M. Lord, by name, not as executor, (and there were two executors, in the will,) to pay what remained of this debt. So we construe the will, following the language in its natural and obvious import. We do not feel authorized to do otherwise ; nor do we think the testator himself intended otherwise. He had, before this clause in the will, imposed private charges on his nephew, especially in relation to the annual support of the testator’s widow, and the preservation of his grave-yard, and fence about it; and we must believe he intended to extend this personal duty to William M. Lord, who was a liberal participant in the bounty of his uncle.

We find, too, in the paragraph next preceding the one in question, the executors are mentioned, and directed to pay certain legacies, as executors ; so, in the paragraph next following the one in question, the executors are, as such, directed to discharge a duty. Now, when, in this intermediate paragraph, he directs his nephew, William M. Lord, to pay a certain claim, we believe, he had in his mind, a distinction between executors and his nephew, William M. Lord. This is the result to which we have come, after much comparison of our views, and with some considerable confidence of the correctness of our decision.

We answer, then, the questions put to us : first, that the personal property is first liable; and secondly, the debt due Mrs. Marshall, is to be paid by William M. Lord, on his own account, and not as executor.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    The Norwich and Worcester Railroad Company vs. Kay.
    The finding of a court, upon a question of fact, is conclusive, and can not be reviewed by motion in error, founded on a bill of exceptions, when no question of law arises thereon.
    A party can not bring up his whole case for revision, by a bill of exceptions.
    This was an action of book debt, brought by James Kay, against the Norwich and Worcester Railroad Company, and tried in the county court for New London county, on the general issue, closed to the court.
    On the trial, the following facts were found by the court: The plaintiff introduced an account against the defendants, of which the following is a copy, to wit:
    “ Nov. 5, Norwich and Worcester R. R. Co.,
    1852. To James Kay Dr.
    For services in examining books, &c., by order of the board of directors, as per vote of the board, 14 July, 1852, being similar services as in 1849 and 1850, - - $50.00.”
    The services charged in said account were performed by the plaintiff, between the 14th day of July and the 5th day of November, 1852, pursuant to the following vote, passed by the board of directors of said company, on the 14th day of July, 1852; viz.: “ Voted, that James Káy, Esq., be and is hereby appointed to examine the accounts of the treasurer and ticket clerk, from the date of the last examination, June 1st, 1850, to May 31st, 1852, and report the result to the board.” And the court found that said services were reasonably worth the sum of $50.
    The plaintiff was employed by the defendants, as a bookkeeper, from 1847 until November or December, 1852. He entered that employment, under an agreement with the defendants, to keep and take charge of the ledger and general accounts, in the office of their treasurer, at a salary of $700 a year, but did not stipulate with them, to examine the accounts of their treasurer, or ticket clerk, without extra compensation. The defendants paid the plaintiff said salary of $700, for services performed according to said agreement, until July, 1848, when the same was reduced to $600 a year; and thenceforward until the 1st day of January, 1851, the salary of the plaintiff remained unchanged.
    On the 14th day of December, 1848, the defendants passed a vote, that said “ Kay be requested to examine the accounts of the treasurer of the company and ticket clerk, from the date of the last examination, (30th of November 1846, to Nov. 30th, 1848,) and report the result to the board.” The service specified in this vote was performed by the plaintiff, and the defendants paid him therefor, as extra service, the sum of $50.
    On the 13th day of June, 1850, the defendants passed a vote, that said Kay “ be requested to examine the accounts of the treasurer of the company and ticket clerk, from the date of the last examination (May 31st, 1849, to the 31st day of May last,) and report the result to the board.” The plaintiff was paid by the defendants, for performing the service required by this vote, an extra compensation of fifty dollars.
    On the 26th day of December, 1850, the plaintiff renewed his application for an increase of his salary, from $600 to $700 a year; and the board of directors, at a meeting held on the same day, passed the following vote, to wit: “ Voted, that the salary of Mr. Kay be six hundred and fifty dollars, from the first proximo.”
    At the time said last vote was passed, there was a verbal understanding among the directors of said company, that, in consideration of the sum therein named, the plaintiff should thereafter examine the accounts of the treasurer and ticket clerk, as well as keep and take charge of the ledger and general accounts in the treasurer’s office; and that understanding was soon afterward communicated to the plaintiff, by the president and treasurer of said company. The plaintiff, on receiving said communication, expressed to said president and treasurer his dissatisfaction with the proceedings of said board of directors, and did not then or afterward assent thereto, or agree to accept said sum of six hundred and fifty dollars, as a compensation for performing all said services.
    The only service performed by the plaintiff, for the defendants, from the first of January, 1851, to the first of January, 1852, was that of keeping and taking charge of the ledger and general accounts in the treasurer’s office; and the defendants paid him for that service the sum of six hundred and fifty dollars.

      From the first day of January, 1852, to the time of leaving the defendants’ service, the plaintiff continued to keep and take charge of said ledger and general accounts, as he had done before, in addition to the service charged in his said account; and the defendants paid him, on account of said services, at the rate of $650 a year, and no more.
    Upon this state of facts, the court rendered judgment in favor of the plaintiff, for the sum of fifty dollars debt, and his costs.
    The defendants, excepting to the decision of the court, filed their bill of exceptions thereto, embracing the facts above stated, which was allowed, and thereupon, by motion in error, removed the cause to the superior court, where the judgment of said county court was affirmed. The record was then, by motion in error, brought before this court, for revision.

      Wait and E. Perkins, in support of the motion.

      Halsey, contra.
   Hinman, J.

The plaintiff in the court below, at the time when he performed the service for which he claimed to recover in this action, was the book-keeper of the defendants, and, as such, was entitled to a regular salary. The case turned upon whether he was bound to perform this service, as a part of his duty, as book-keeper, or, whether it was extra service, for which he was entitled to extra compensation. The bill of exceptions gives a history of the dealings between the plaintiff and the defendants, from the year 1847, when he first entered into their service, down to November or December, 1852, when the connection terminated. During the time when the plaintiff was thus employed by the defendants, they had, on two or three occasions, paid him an amount equal to the sum charged by him in this instance, for extra service of precisely the same character as that for which he claimed to recover, in this action. The court found the service to have been reasonably worth the sura charged for it; and, relying, as we suppose, principally upon the previous dealings of the parties, as evidence of their understanding and agreement, that the services should be paid for, as extra service, rendered judgment in favor of the plaintiff, for the amount charged in his bill. It is appa rent, from this statement, that no question of law arises upon the bill of exceptions. The question is, whether the court drew the correct inference, as to the agreement of the parties ; and that is wholly a question of fact. There is no claim, that any improper evidence was received, or that it did not conduce to prove the facts which must have been found by the court. But the claim is, that, taking the whole evidence'recited in the bill of exceptions together, the court came to a wrong conclusion. If this was so, we could not review it, on this application : the finding of the court is as conclusive, on a matter of fact, as the finding of a jury. Besides, the defendants attempt, in this way, to bring up the whole case for review, on a bill of exceptions, which has often been held to be irregular. Shelton v. Hoadley, 15 Conn. R., 535. On both these grounds, the court advise the superior court, there is no error in the judgment complained of.

In this opinion, the other judges concurred, except Ellswoeth, J., who tried the cause in the court below, and was disqualified.

Judgment affirmed.


text:
    The Canterbury Aqueduct Company vs. Ensworth.
    A party who seeks, by the aid of a court of equity, to enforce the specific performance of a contract, must show, that the relief asked for is strictly equitable, or the court will not interfere.
    The Canterbury Aqueduct Company, and E, the defendant, entered into the following contract, viz., “ Said company propose to buy of E, the privilege of digging a fountain upon his land, at a suitable place north-west of J’s house,” &c.,—“ said company to pay therefor, twenty dollars, and a lqase, for the purpose of securing the privilege, to be given by said E.” At the time of the negotiating and executing of such contract, both parties supposed, that said fountain was to be located upon land owned in fee, by E alone. But the plaintiffs, without consulting E, erected the same upon other land, which was owned by E jointly with his wife. E denied the plaintiffs’ right to erect said fountain, at said place, and claimetj, that they were confined, by the contract, to land owned solely by him. On a bill in equity, to compel E, to execute a lease of the right claimed by the plaintiffs, at the place of such location, it was held, I. That, to grant the decree prayed for would operate as a surprise upon the defendant; 2. That the plaintiffs had gained nothing, by erecting their fountain at said place, contrary to the express prohibition of the defendant,—that the latter had lost no right, by laches; and consequently, the prayer of such bill ought not to be granted.
    This was a bill in equity, brought to the superior court for Windham county. At the term of said court, holden in October, 1852, the cause was referred to a committee, who reported substantially the following facts, viz. :

    The plaintiffs are a corporation, constituted for the purpose of conducting water into the village of Canterbury.
    At the time said corporation was organized, the defendant was, and for many years before, had been, in the possession and improvement of a tract of land, lying in the town of Canterbury, near said village. Said land, with other land adjoining, was formerly the property of Thomas Buswell, who died about the year - 1808, leaving a widow, Thankful, two sons,'Jabez and Charles, and a daughter Polly, who afterwards became the wife of said Ens-worth. The estate of said Thomas was duly settled, and distributed between said widow and children, in the year 1808, in such manner, that the part of said tract next northerly of the southerly line thereof, and nearest said village, was set to said Charles, and another part next northerly of, and adjoining the part so set to Charles, and containing thirty-six acres, was distributed to said widow, as a part of her dower. Said dower land was not distributed, until the year 1850, subsequently to the location and construction of said fountain thereon, and to the bringing of the plaintiffs’ bill. There was never any fence between said widow’s land, and the land distributed to said Charles, and they were occupied together.
    In the year 182—, the defendant purchased the lot distributed to said Charles, and, on the 25th day of March, 1822, bought, and took a release deed from said Jabez, of all his right and title in the dower land, and, on the seventh day of June, 1828, bought and took a release deed from said Charles, of all his interest in said dower land, the interest of each therein being an undivided third part thereof, in fee, subject to said widow’s dower, which said Nehemiah had previously purchased. For more than twenty years, pribr to the date of said bill, the defendant was the sole occupant of the tract set to said Charles, and to said widow, and the sole ownership thereof, saving the right of his wife, as the owner of an undivided third in said dower land, as an heir of said Thomas, vested in him. Said widow died, about twelve years since. For more than twenty years, before said bill was brought, the defendant occupied the whole of said premises, and set the same in the tax list, in his own name.
    About the first of August, 1843, the plaintiffs and said Nehemiah entered into the following agreement, viz. :

      “ The Canterbury Aqueduct Company propose to buy, of Nehemiah Ensworth, the privilege of digging a fountain upon his land, at a suitable place north-west from A. T. Judson’s house, and of such dimensions and depth as said company may deem serviceable ; stone up the "same with stones to be gathered from the adjacent grounds; and, from said fountain, dig trenches, to lay pipes, and conduct the water therefrom, to the valley of Canterbury,—and always to,enter the lands, and keep the fountain and aqueduct in repair, keeping the same covered up, at all times, and doing as little damage to growing crops as may be. Said company to pay therefor $20.00 ; and a lease, for the purpose of securing the privilege, to be given by said Ensworth.
    Nehemiah Ensworth.”
    The lease mentioned in said document, it was intended and understood by said parties, should be a continuing lease,. and grant of said privileges to said company, so long as they should have occasion to exercise and enjoy the same.
    During all the time of the negotiation between said parties, until after the signing and delivery of said document, both of said parties supposed that the location of such well and trenches, would be on land set to said Charles, by the aforesaid distribution. No mention was made of the place where such location was finally made, nor was the adaptation of the same, to their purpose, known to said company; and, in their negotiations, said land, east of said road, was always pointed out by them, to the defendant, as the land where they supposed the water could be got most advantageously for their purposes, and where they expected their location would be ; but no particular spot was agreed upon between the parties for such location; said company always intending to leave this to the person employed by them, to construct their works, as more competent than themselves, to determine it.
    Previous to the execution of said document, a competent person visited said land, east of the road, and suggested points upon it, as most likely to prove suitable for said company’s ends, but neither he, nor any of said company, prior to the execution of said writing, and the making of said agreement, had visited, or thought of, the lot where said location was actually made, which was separated from the other, by fences and an old road, and the point of location in it was at some distance from the points originally suggested for that purpose.
    In August, 1843, said fountain was located west of said road, on the land set to said widow. The plaintiffs were then, and at all times, willing and ready to pay said stipulated price of twenty dollars, to the defendant, whenever thereto requested. Supposing the defendant to be the sole owner of said land, the plaintiffs made a suitable excavation for their fountain, secured the same with a sufficient wall and covering, and dug therefrom a trench suitable for pipes to conduct the water therefrom. Soon after said work was done, the plaintiffs tendered twenty dollars to the defendant, and have continued ready to pay him said sum, but he, at all times, has refused to take the same, and to execute a lease or conveyance to them. Neither the defendant, nor his wife, was consulted as to such final location, and on finding the plaintiffs constructing said fountain, he ordered them to desist, and quit said lot, denying their right to construct their works there, and claiming, that they must confine themselves to said land, east of the road, as the place agreed upon ; but nothing was said as to the nature of his title in said land. At this time, said company had dug their fountain, but had not stoned the same, or laid their pipes, or dug their trench, to any great distance, if at all. But the plaintiffs, claiming the right, by virtue of said agreement, prosecuted and finished their work, at said place, occasioning thereby no damage to the defendant. The" plaintiffs, with the knowledge of the defendant, and his wife, used water drawn therefrom by means thereof, without interruption, until the month of August, 1849, when, it having become necessary that said fountain should be uncovered, for the purpose of cleaning it out, and making some necessary repairs thereon, said Nehemiah interrupted their use of the water, and again refused to execute a lease, or other instrument, granting to the plaintiffs the right to use said premises, as claimed by them.
    In the year 1851, while the plaintiffs’ bill was pending, the defendant procured a distribution of the real estate, assigned as dower to the said Thankful, by which that portion thereof, upon which’ said fountain was located, was set to the wife of the defendant.
    The question, as to what decree should be passed in the case, was reserved for the advice of this court.

      Cleveland and J. A. Hovey, for the plaintiffs,
    contended, 1. That the plaintiffs are entitled to a decree against the defendant, requiring him to execute his contract specifically, so far at least, as he has the power to do it. It is sufficiently certain, in its terms, to be clearly understood. The fountain, of which the plaintiffs ask for a lease, is located in a place authorized by the contract. The works constructed by the plaintiffs, have not done, and can not do, any injury to the defendant, or occasion him any substantial inconvenience or damage ; nor can they impair the use of the land, for the purposes of the defendant.
    2. The fact, that Mrs. Ensworth is the owner of the fee of the land, does not release the defendant from the obligation to perform his contract specifically, to the extent of his power. For, notwithstanding the distribution of 1850, he has an estate for life, in the land, as tenant bylthe curtesy, and may therefore, be compelled to execute to the plaintiffs, a lease of the privileges specified in his agreement, for the time that his tenancy is to continue. Waters v. Travis, 9 Johns. R., 450. Annan v. Merritt, 13 Conn. R., 489. Hepburn v. Auld, 5 Cranch, 262. Jacobs v. Lock, 2 Ired. Ch., 286. Henry v. Liles, 2 Ired. Ch., 407. Weatherford v. James, 2 Ala. R., 170. Bass v. Gilliland, 5 Ala. R., 761. James v. Shackleford, 2 Bibb., 410. 6 Metcalf, 346.

      Foster and Welch, for the defendant,
    contended, 1. That the contract was understood, on both sides, to apply to lands, lying east of the highway; that was considered eligible for the purpose, and no other was contemplated, and, to compel the defendant to execute a lease of the land now claimed, for the purposes of the company, would be, to make a new contract for the parties, and to compel Ens-worth to lease perpetually, land in which he has only a life estate. It would also create an incumbrance on, and reduce the value of, the land of Mrs. Ensworth, who never consented to, or was consulted in regard to, the contract.
    2. To grant such a decree, as the plaintiffs ask for, would be virtually to attack and set aside a valid order and decree of the court of probate.
    3. If there is a misunderstanding between the parties, as to the identity of the tract to be conveyed, a court of equity will not decree a specific performance. The plaintiffs gained nothing by proceeding to expend their money on this work, under the eye of the defendant. They were forbidden to proceed, as soon as it was known they had commenced work, and before they had invested a dollar.
   Hinman, J.

Where the specific execution of a contract is sought to be enforced, the plaintiff must show; that the relief asked for, is strictly equitable, in reference to the parties, and the subject matter of the contract, or the court will not interfere. This principle is so obviously just as to need no authority to support it. A different rule would, to a great extent, destroy the equitable character of the court, and, not unfrequently, convert it into an instrument for the enforcement of unconscientious contracts, rather than a tribunal where such contracts may be set aside. Upon this principle, the court refuses to compel the execution of contracts, founded upon fraud, imposition, or mistake; and, where such execution will operate as a surprise upon the party against whom it is sought to be enforced, courts will generally leave the parties as they find them, liable only to such redress as can be obtained at law: as a court of equity often relieves parties from the execution of contracts, which operate as a surprise upon them, so, to be consistent, it must refuse to execute such contracts, when their specific execution is asked for.

Upon these plain and obvious principles, without going at all into the examination of cases, on this subject, we are satisfied, that this bill must be dismissed. It is true, that the written memorandum of the contract sought to be enforced, in a rather enlarged sense of the words used in it, might entitle the plaintiffs to the right of maintaining their fountain, at the place where it was first located. The writing states, that the plaintiffs proposed to buy of the defendant, the privilege of digging a fountain upon his land, at a suitable place north-west from Judge Judson’s house, in the village of Canterbury : and to dig trenches and lay pipes, and conduct the water therefrom, to said village. The expression, his land, is, no doubt, broad enough to include any land of his, north-west of the village ; and, as he owned, in his own right, an undivided portion of the land where the plaintiffs erected their works, and also had a life estate in the other portion, which belonged to his wife, it might properly enough all be said to be his land; and, had this been the only land of his, which would answer the description, the conclusion must have been, that it was this land which was intended.

But, the report of the committee, as we understand it, shows, that it was not the expectation of either party, that the fountain should be established on the land which he only owned, in the qualified sense alluded to. It appears, in the first place, that he. had a large quantity of other land, adjoining this, (which belonged to him and his wife,) which was owned by him alone, and which, therefore, answers the description in the writing, perfectly. Now, when we consider, that- he was to give to the plaintiffs, a perpetual right of this water right in his land, and that it was the object of the plaintiffs, to procure a perpetual right, the inference is very strong, that, by the expression, his land, the parties must have intended the,land of which he was the absolute owner, and in which alone he had the power to grant such a perpetual right as was intended. The situation of the defendant, in reference to the title to his land, goes very far to sustain the finding of the committee, as we understand the report, that the understanding of the parties was, that the fountain should be established on land to which the defendant had a clear title, in fee. The report says : That, during all the time of the negotiation respecting the contract, until after the signing and delivery of it, the parties both supposed that the location of said well and trenches, would be on land so set to said Charles,”—which was the land exclusively owned by the defendant,—and “ that no mention was made of the place where said location was finally made, nor was the adaptation of the latter place to the purposes of the plaintiffs, known to them; and, in the negotiation with the defendant, the land set to Charles, and which was east of an old highway, was always pointed out, by the plaintiffs, as the land where they' supposed the water could be most advantageously obtained for their purposes, and where the expected location would be.” The report further finds, that the person employed by the plaintiffs, .to construct their works, and who was the person to whom they intended to leave the location of them, had visited the land, to which the defendant had a perfect title, previous to the execution of the written contract, and had suggested points, upon that land, as most likely to prove suitable, for the plaintiffs’ purposes ; and neither he, nor any member of the company, had visited, or thought of, the lot where the location was made, which was separated from the other by fences and an old road. It is clear, from this finding, that it was the expectation of these parties, that the fountain was to be located east of this old highway; and, if it be admitted, that the written contract is so drawn up, that, in an enlarged sense of the language used, it may be said to include the land on both sides of the way, it is still apparent, that, to give it that construction, would operate as a surprise upon the defendant. Indeed, to compel the defendant to give the plaintiffs a perpetual lease of a right to erect and maintain their works on the west side of the road, rather seems to us, as the making of a new contract between the parties, than merely compelling the execution of one already made. We think the defendant may well say, that, had he .understood the contract to authorize the company, in going west of the road, he would have refused to make it; especially, when it is considered, that his title to the land there, did not enable him to grant the full right which the plaintiffs expected to receive. If this bill had been brought, before the plaintiffs had expended money in the erection of their works, we think no one would question the correctness of this conclusion ; and, on the other hand, it is doubtless true, that the terms of the written memorandum are so indefinite, that, had the plaintiffs located and erected their works, at the place claimed by them, with full knowledge on the part of the defendant, and without objection on his part, it would now be too late for him to object to the location. But, no such fact appears in the case. On the contrary, the defendant was not consulted in regard to the location, and, as soon as he was informed of it, he denied the plaintiffs’ right to construct their works, at that place, and ordered them to desist and quit that lot. He, at the same time, claimed, that they were confined to the land on the opposite side of the highway; and he has been consistent in this claim, up to the present time, always refusing to take the stipulated compensation, on the ground that the works were erected at a place never contemplated or authorized by him. He has,' therefore^ lost nothing by laches, and the plaintiffs have gained nothing, by going on and expending money in the erection of works, contrary to his express direction. Under these circumstances, however true it may be, that the injury to the defendant, by the continuance of the fountain at the place where it was located, will be less, than will be the plaintiffs’ injury, by its removal, or that one object of the defendant is to compel the plaintiffs to pay an unreasonable compensation, for the privilege of continuing it there ; still» we can not say, that he ever made, understandingly, the contract claimed, and we can not therefore enforce its execution. We advise that the plaintiffs’ bill be dismissed.

In this opinion, the other judges concurred.

Bill to be dismissed.


author: Storrs, J.

text:
    Freeman vs. Perry and another.
    The purchaser of a negotiable promissory note, not endorsed by the payee, has only an equitable interest therein ; and an action upon the same must be brought in the name of the payee.
    The assignees of an insolvent debtor, under the insolvent act of the state of Massachusetts, acquire the same interest in debts due the assignor, or to another person for him, which such debtor had, at the time of the assignment.
    Therefore, where a negotiable promissory note, not indorsed by the payee, was sold and delivered to a resident of the state of Massachusetts, and the purchaser afterward becoming insolvent, said note passed into the hands of his assignees, under the insolvent act of said state; it was held, that an action on said note was properly brought in the name of the payee.
    This was an action, brought against Joseph H. Perry & Co., in the name of George Freeman, the payee of a negó» tiáble promissory note, executed by the defendants, July 14th, 1839, payable to the payee, or order, on demand 'with interest.
    The defendants pleaded sundry pleas in bar, upon the allegations in which pleas issues were joined; and the cause was tried thereon, before the superior court for Windham county, at the term holden in October, 1852.
    On the trial it was admitted, that the respective parties to said action were, and during all the time relied upon by either party had been, citizens and residents of the commonwealth of Massachusetts ; that said note, although negotiable in its form, had never been endorsed nor transferred by endorsement; but that, for a valuable consideration, it had been sold and assigned and delivered by the said Freeman, the payee thereof, to one Otis Mixer, a citizen of said commonwealth, who prosecuted said action, in the name of the nominal plaintiff.
    The defendant introduced evidence to prove, that, after due proceedings had, under the then bankrupt laws of the United States, they were duly declared bankrupts, and discharged from their debts, under said law, in the district of Massachusetts, and received, in due form, a certificate of discharge, and that said Mixer proved said note, under said proceedings, and received a dividend thereon ; that, while said Mixer continued to own and possess said note, in the year 1844, he instituted proceedings in insolvency, before a court of probate, in said commonwealth of Massachusetts, and was duly discharged from his debts. An assignee was appointed, and acted under said laws and proceedings; but the note was not, in fact, assigned nor delivered to said assignee, by Mixer, nor did the assignee ever have possession, or knowledge of 'the same, and it was retained by Mixer, because the defendants had been discharged in bankruptcy. Said.Mixer had not fully paid all the debts due from him, prior to his insolvency.
    The plaintiff claimed to have proved, that, in the year 1846, the defendants paid to said Mixer, twenty dollars, on said note, and promised to pay to him the full amount thereof; that, in June, 1848, the defendants paid the further sum of $21, on said note, and then again promised to him to pay the full amount thereof, and afterward, the defendants acknowledged the balance to be due on said note, and that the same was an existing debt against them, which the defendants denied.
    The defendants requested the court to instruct the jury, that, if they found that they had made the several promises of payment the plaintiff claimed, this action could not be sustained by him, on the ground solely, that, by virtue of the proceedings under the insolvent laws of Massachusetts, the note or debt in question became the property of the assignee of the said Mixer’s estate^ and that, by virtue of said laws and proceedings under them, he had the sole legal interest in said note or debt, and could,, alone sustain an action to recover it.
    The court did not so charge the jury; but instructed them, that, if they should find that, after the said assignment by, and discharge of, the said Mixer, under and by virtue of the proceedings by the said court of probate, in the commonwealth of Massachusetts, in said matter of insolvency, as claimed by the defendants, they expressly and without condition, promised said Mixer to pay said debt or- note, as the plaintiff claimed, the plaintiff was entitled to recover, notwithstanding this objection of the defendants; but, if no such promise was proved, and if the defendants had only recognized the existence of said note or debt as still due, without any such promise to pay it, then the action could not be sustained.
    The jury having returned a verdict for the plaintiff, for the balance due on said note, with interest, the defendants thereupon moved for a new trial. *

      T. E. Graves, in support of the motion.

      Hovey and E. Perkins, contra.
   Storrs, J.

We shall confine ourselves to the question presented to us by the parties, on the argument of this case, irrespective of the sufficiency or regularity of the pleadings, to which neither of the parties has taken any exception.

From the statement in this motion, we must consider, that it was conceded by the defendants, on the trial, and it has not been questioned before us, that the promise claimed, and found by the jury, to have been proved by the plaintiff, would revive the note declared on, and render the defendants liable upon it; but the defendants claimed, and requested'the court to instruct the jury, that, if such promise was proved, the plaintiff could not maintain this action; but that it should have been brought, in the name of the assignees of Mixer. To this claim, the court did not accede, but pharged them, that, in that case, the plaintiff should recover. The only question is, whether that charge was correct; and that depends on the enquiry, whether the plaintiff had the legal title to the note. For, it is obvious, that, whoever may have any equitable interest in it, an action at law on it must be brought by the person who has the legal title.

If this question is considered, independently of the effect of the proceedings in insolvency, in Massachusetts, there.is no doubt (that the legal title was in the plaintiff. The note was negotiable, being drawn payable to the plaintiff or his order; but the legal title to it was never transferred by his endorsement, and therefore, he retained it. It was indeed sold, assigned and delivered by-him, to Mixer; but as it was never endorsed to him, he acquired only an equitable interest in it. He must, therefore, have enforced it, by an action in the name of the plaintiff, who was a trustee for him. Mixer thus having only an equitable interest, the legal title could not have been acquired from him, by his assignees, or any other person, unless by virtue of the insolvent act of the state of Massachusetts, under which, the proceedings in insolvency took place. Whether, if, by the provisions of that act, a legal title to this note would 'be deemed by the courts of that state, to be vested in the assignees, the courts of this state would recognize such a title, and allow an action at law to be sustained on it here in their favor, it is not necessary for us to determine ; because, on examining the provisions of that act, we are of opinion that, by a just construction of it, no such title to this note, under the circumstances attending it, was vested, by virtue of those proceedings, in the assignees, and that it would be so held in that state.

The effect of the assignment of the estate of a debtor who shall take the benefit of that act, is prescribed, in the fifth section, which, after providing how it shall be made, and that it shall be of “ all the estate, real and personal, of the debtor, excepting such as may be by law exempted from attachment, with all his deeds, books and papers relating thereto,” declares, that it shall “vest in the assignees all the property of the debtor, both real and personal, which he could by any way or means, have lawfully sold, assigned or conveyed, and also all debts due to the debtor, or to any person for his use, and all liens and securities therefor.” And then, after providing that the debtor shall do all such acts as may be necessary or useful, to confirm the assignment, and. enable the assignees to recover the effects assigned, it declares, that the “assignees shall have the like remedy to recover all the said estate, debts and effects, in their own name, as the debtor might have had, if no such assignment had been made.” We think that it was plainly the object of these provisions, in regard to debts due to the debtor, or to any person for his use, to vest all his interest in them, by the assignment, in his assignees, and to place them exactly in his situation ; and that the nature of the title which should be transferred to them in those debts, should be the same, whether legal or equitable, as that which the debtor himself had, and no other. As to debts due to him directly, and to which he had a legal title, and which, therefore, he could recover, in an action in his own name, it was obviously very important, for the purposes of the trust imposed on the assignees, that such title should be transferred to, and vested in, them, in order that the business might be transacted in their own names ; but, in regard to debts due to other persons, for the use of the debtor, and in which he had only an equitable interest, it could produce no benefit, and indeed might be very inconvenient, if not unjust, to vest a legal title to them in the assignees. It would be sufficient to transfer to them the same equitable interest in those debts which the debtor had, and that, would be the effect of the assignment, as to those debts, because an assignment of an equitable claim 'transfers only an interest of the same character. But, as an assignment of a legal claim would also transfer only an equitable title to it, excepting in cases of negotiable debts, in order to vest in the assignees a legal title to such claims of the debtor assigned to them, so that they could recover them in their own names, it would be necessary, that the act should give such an effect to their assignment; and, in our opinion, it was. intended to invest the assignees with a legal title to those debts only. As, therefore, by the true construction of that act, the assignment of the property of Mixer did not vest in his assignees the legal title to any debt to which he had not such a title, and he had only an equitable title to the note in question before us, it results, that an action upon it, either in Massachusetts or here, could be brought only in the name of the plaintiff. Whether, as between the assignees and the plaintiff, the former will be entitled to the avails of the recovery on the note, it is unnecessary for us to consider.

A new trial is not advised.

In this opinion, the other judges concurred, except Church, C. J., who tried the cause in the court below, and was disqualified.

New trial not to be granted.


text:
    The Town of Canterbury vs. Bennett.
    An error apparent upon the declaration should be taken advantage of, either by a motion in error, a motion in arrest of judgment, or by writ of error, and is no ground for a motion for a new trial.
    This action, which was founded upon the statute “ concerning idiots, lunatics and spendthrifts,” was brought by the town of Canterbury to the superior court for Windham county, against John Bennett, to recover for expenses incurred in restraining and supporting one Hosmer Bennett, who was alleged to be a lunatic and distracted person, and the son of said John.
    The declaration alleged, that on the 7th day of March, 1850, one Hosmer Bennett was, and for a long time before had been, a resident of said town, and was, and ever since had continued to be, a lunatic, and distracted person, and dangerous and unfit to go at large ; that on said day, a written complaint was preferred to George S. White, a justice of the peace of said town, informing him “ that said Hosmer was a resident of said town, and then was, and for a long time before had been, a lunatic and distracted person, and that he was dangerous and unfit to go at large, and. might injure others in their persons or estate, and that the complainant had reason to believe, that he would so do, and that said Hosmer was then at large;” that a complaint had been duly and legally made by the complainant to the selectmen of the town of Canterbury, who had neglected and refused to proceed with said Hosmer; that said John Bennett was the father of said Hosmer, by law liable for his support, and was of sufficient ability to support him; that said Hosmer was destitute of the means of support; that said complaint prayed said justice to cause said Hosmer to be brought before him, that the matters in said complaint might be enquired into, and that he might be examined, and provision might be made for confining him in some suitable place in conformity with the provisions of the act, entitled an “ act concerning idiots, lunatics and spendthrifts.” Said declaration then proceeded to set forth, circumstantially, the proceedings of said justice, who caused said Hosmer to be brought before him and adjudged that he should be confined in the Retreat for the Insane in Hartford, and thereupon issued a warrant for that purpose, in pursuance of which, said Hosmer was carried to said Retreat, and confined therein. The plaintiffs averred, that in instituting and carrying on said process, and in the support of said Hosmer at said Retreat, they had expended the sum of one hundred and fifty dollars; for the recovery of which sum said action was brought.
    The defendant 'having pleaded the general issue,' the plaintiffs, on the trial of the cause to the jury, read in evidence, a certified copy of the complaint and proceedings thereon, set forth in their declaration.
    The defendant claimed, and prayed the court to charge the jury, that said complaint gave no authority to said White, the justice, to whom the complaint was made, to issue any warrant in the premises, because it did not appear from the complaint, that the said Hosmer Bennett was at large in the town of Canterbury, and therefore all the proceedings upon the same were void, and no legal liability was incurred by the town or imposed upon the defendant. But the court did not so charge the jury.
    The defendant further claimed and prayed the court to charge the jury, that if all the facts set forth in the plaintiffs’ declaration were found by them true, yet they constituted no reason in law, why the plaintiffs should recover, and that their verdict must be for the defendant. But this instruction was not given.
    The jury having returned their verdict in favor of the plaintiffs, the defendant moved for a new trial.

      Foster and, Tyler, in support of the motion.

      Cleveland and Welch, contra.
   Hinman, J.

In the case of Pearl v. Rawdin, 5 Day, 244, it was decided, that the insufficiency of the declaration was no ground for a motion for a new trial; and the court thought the point so clear, that it refused to hear argument upon it, although it was stated, that the question was brought up in that form, by consent of parties. Again, in Minor v. Mead and another, 3 Conn. R., 289, it was held, that an error apparent on the record could not be taken advantage of, on a motion for a new trial. These cases were approved in Burr v. Broome, 4 Conn. R., 247, and the same principlqapplied to abill in chancery, brought to foreclose a mortgage. In conformity to these decisions, the practice, for many years, has been, to file motions in arrest, for any insufficiency in the pleadings, at the same time when there was also allowed a motion for a new trial of the case. Our reports show many cases in which this has been done.

In this case, the objections to the plaintiff’s right to recover, if there are any which ought to prevail, all appear upon, and arise from, the declaration itself, and the defendant’s whole argument has been made, for the purpose of showing that, upon the whole record, the plaintiff is not entitled to judgment. If this is so, he could have filed a motion in arrest, and he can now, after judgment, bring a writ of error, but he has no ground for a new trial, and the present motion must be dismissed.

In this opinion, the other judges concurred, except Waite, J., who having tried the cause in the court below, was disqualified.


author: Ellsworth, J. Church, C. J.

text:
    Day vs. Cutler.
    The legislature, as a condition of granting a'divorce to H, from S,-his wife, required him to pay the sum of five hundred dollars, for her future support; for which amount he understanding^ executed and delivered his promissory note, payable to D, in trust, for S. Held, that such note was not void, as being without consideration and against public policy, and that a verdict of the jury, in favor of the plaintiff, in an action upon said note, ought not to be set aside, for either of these reasons.
    This was an action, brought to the superior court, for Windham county, on a promissory note, payable to the plaintiff, as trustee for Susan Cutler, the former wife of the defendant.
    The defendant pleaded the general issue, with notice of special matter, to be given in evidence.
    On the trial, the plaintiff testified, that, after the rising of the general assembly, in 1849, he was informed, by a representative from the town of Pomfret, that there was a note for him, in the office of the secretary of state ; that he sent for said note, some fourteen months after its date; that, in August, 1849, the defendant called on him, in Pomfret, and said he had come to see about that note he had given to the plaintiff, as trustee for the defendant’s wife; that the plaintiff asked what note; that defendant replied, the note he gave the plaintiff, as trustee, to get a bill of divorce; that plaintiff told defendant he had not got the note, and did not wish to have anything to do with it; that defendant said, esquire Tyler told him to let the note go, and not pay it,—it would take care of itself, but that was not the way he did business ; that it was more than he ought to pay, and wished the plaintiff, when he did get the note, to treat the defendant, like a gentleman, and call on him, or notify him, and he, the defendant, would pay the note ; that, in March, 1851, on the day of the date of the writ, the plaintiff' called on the defendant, at Plainfield, for payment of said note, which was totally refused by the defendant, and the note was, by the plaintiff, put in suit.
    Jonathan A. Welch testified, that, after the commencement of the suit, he met the defendant, who admitted, that he made the note exactly as the plaintiff' claimed in the declaration ; that the defendant told him, that Mr. Tyler advised him, that the note could not be collected.
    On. cross-examination, he testified: “ The defendant said he gave the note, as the condition of his divorce,—did not say who required him to give the note, but gave the witness to understand, that the note was part of the operation of gettingthe divorce.
    The-defendant then gave in evidence, 1. the following preamble and resolution of the general assembly, 1839 :
    “ Upon the petition of Henry Cutler, of Plainfield, in the state of Connecticut: praying for a divorce from his wife, } Susan Cutler, on the ground of the insanity of the said Su- !¡ san, at the time of marriage, which fact was unknown to the said Henry, until after the said-marriage ; this assem-i bly, finding the facts stated in said petition to be true, and, further finding, that the said Henry has paid to Calvin Day,, Esq., of Pomfret, in trust, for the use and benefit of said; Susan, the sum of five hundred dollars :
    Resolved, by this assembly,—That the marriage relation S heretofore subsisting between Henry Cutler and Susan Cut- \ ler be, and the same hereby is, dissolved, and the said Henry j is hereby released and discharged from all obligations aris- !j ing out of said contract, and the said Henry is hereby de-1 dared to be sole, single, and unmarried.”
    2. The testimony of Daniel P. Tyler, who testified as follows : That, as counsel for the defendant, he brought the petition for a divorce from his wife, and appeared before the committee on divorces. A report, in favor of the petitioner, passed the senate, on the 18th, and came up in the house, on the 31st day of June, and was negatived; that he then enquired of sundry members, the reason of the rejection of the resolution, which had passed the senate; that, before this time, individuals of Killingly and Plainfield had opposed the divorce, on the supposed ground, that the respondent might become chargeable to said towns, if divorced, as a pauper. It was believed, she was an inhabitant of Pom-fret, and, if divorced, might, as a pauper, become chargeable to that town ; that, after said rejection by said house of representatives, he had conversation upon the subject of said divorce, with a representative from Pomfret, and others, who were desirous something should be done, for the future support of the respondent; that said Tyler then sent for the defendant, to be at Hartford; that he came, and- after that, it was said by sundry members of the legislature, by said Holt, and others, that if the defendant would give or make the note now in suit, there would be no objections to getting the divorce through; that the note in suit was then written,—by whom the witness did not recollect; that witness carried it to defendant and told him, there was a note which he must sign, to get his bill of divorce, and that, if the defendant signed it, it would be good for nothing, and that he might sign it with perfect impunity; that the persons requiring the note, had no authority to order it, or receive it; that he did not know what then became of the note,—did not recollect who, if any one, received it. It was given by the defendant, at the suggestion of individuals, that, if he would sign it, he would get his divorce granted.
    3. The defendant testified, that, after the hearing before the divorce committee, the resolution divorcing him passed the senate, and he went home ; that some little time afterward, he went a second time before the divorce committee, and testified, as to the amount of his property ; that he had a conversation with Mr. Holt, a member of the assembly, who advised him, that it was better to pay the money than be as he was ; that Mr. Tyler handed him a paper to sign, and told him to sign it,—that it could not be collected ; that he signed the note, without knowing the amount of it, or to whom it was payable, or what was in the paper he signed. Mr. Tyler told him it could not be collected, and he signed it. After it was signed, it lay on the table. Mr. Bacon, chairman of the committee, asked Mr. Tyler what he should do with the note. Mr. Tyler replied, “ Wipe your razor with with it, if you please.”
    The plaintiff objected to this testimony, but. it was received, by consent of parties, subject to objections to any part thereof, on the argument.
    In the argument of the cause, the counsel for the defendant claimed of the court to charge the jury, that, granting the general assembly to have power to grant divorces, on terms of payment of money, or giving a note as claimed to have been given in the present case, the acts and doings of the genera] assembly, in that behalf, can be shown only by its records and votes, and no part thereof by parol, and not as claimed and attempted to be proved by the plaintiff, in this case; that no order, agreement, act, or declaration of any committee of said assembly, or any individual members thereof, can be received, as evidence of the act or doing of said general assembly, and so, that all the evidence concerning the giving said note, and the consideration thereof, if there was any, should be, by the jury, laid out of the case, for any purpose for which the plaintiff claimed or offered the same ; and that the same could not, by them, be considered in the case, except for the purpose of showing, that the defendant’s claim was true ; and, that said note was given without consideration, was a gratuitous promise, given under a mistaken idea of his legal rights and obligations; that said note was void, as given in view of the facts proved and admitted, as against public policy, which policy is, among other things, to preserve the purity of the legislature, and the members thereof from bribes, from making private bargains, and agreements to give or withhold votes.
    The court did not charge the jury as claimed by defendant, but did allow all said testimony to go to the jury, for the purpose for which it was offered, and did, pro forma, charge the jury, that, in order to find a verdict for the plaintiff, the jury must first find, that the note in suit was understandingly executed by the defendant, and delivered to the plaintiff, or to some other person for him; that, if it was delivered to Mr. Bacon, to be by him delivered to the plaintiff, and it had, from him, come into the plaintiff’s hands, that was a good delivery.
    The court then charged the jury, as follows :
    If you find the note to have been understandingly made, and delivered, you will then find what was the consideration of the note; if it was made, in order to procure the divorce, and because he could not otherwise succeed in that object, then the question will be, whether that, in connection with the further object of making some provision for his wife’s support, after the divorce, forms a sufficient consideration for the note. The court is of opinion, that it does form a sufficient consideration. .Still, the question arises, whether this was an illegal consideration. Now, if the note was given to procure the vote or votes of some one or more of the individual members of the legislature, that would be an illegal consideration,—being in the nature of a bribe, and would render the note void, and the plaintiff could not recover. But, if it was done in consequence of the action of the whole legislature, as a body, it would not be an illegal transaction. The legislature, having power to grant or refuse the divorce, had power to prescribe the terms on which it would.grant it; and if it required the execution of this note, before it would grant it, the execution of it was legal, and the plaintiff might recover, if he had satisfied the jury, on the point of making and delivery of it.
    The jury having rendered a verdict for the plaintiff, the defendant moved for a new trial.

      Tyler and Graves, in support of the motion,
    contended, that this action can not be sustained, for, 1. The note was founded on a gratuitous promise, and was without consideration. Sto. on Cont., § 429. 9 Conn. R., 57. 5 Barn. & Cress., 501. 3 Pick., 207. 7 Johns. Rep., 26. It was not given for alimony. The legislature found, that five hundred dollars had been paid, but made no order for alimony ; and no case can be found, where any tribunal has ordered alimony-to be paid to the guilty party.
    2. All the plaintiff can claim, is, that the note was given, first, to induce certain members of the legislature, to cease opposition to the divorce ; and secondly, to procure the future separation of the defendant from his wife ; both of which objects leave the note void, as against public policy. 1 Foster’s N. H. Rep., 212. Any instrument which contemplates and provides for the future separation of husband and wife, or is calculated to promote a future separation, is not legal. Chittyon Cont-., 5 Am. ed., 672. 1 Jacob’s Rep., 126. 7 Price, 577. St. Johns v. St. Johns, 11 Ves., 526. 3 Paige, 483.

      Cleveland and Welch, contra,
    contended, 1. That the evidence fully sustained the verdict, which appears from the motion for a new trial. But if there were a doubt on this point,'the court will not disturb the verdict.
    2. That the charge of the judge was unexceptionable, and placed the case on the true ground. As the supreme power, the legislature could prescribe terms for granting a divorce. And the question, whether they did so, or whether individual votes were fraudulently obtained, was left for the jury to decide.
   Ellsworth, J.

This is a motion for a new trial, on the ground, first, that improper evidence was received; secondly, that the court did not instruct the jury, that the note was without consideration, and void, as against public policy; and thirdly, because the verdict is against evidence.

As to the first point, it appears, the evidence was received, and the question of its admissibility reserved, until the argument and charge to the jury. At the close of the trial, the defendant’s counsel claimed, that “The acts and doings of th e general assembly can be shown, only by their records- and votes.” We perceive nothing contrary tb this rule, in the ruling of the court. The resolve of the assembly, granting the divorce, counting upon the five hundred dollars, secured by the petitioner, to his wife, is the only one of their acts and doings which was attempted to be proved, and this was in fact proved, by the records of the assembly, introduced by the defendant, himself. 'Jhe'parol testimony, offered by the plaintiff, was offered for another and different purpose.

But, suppose the parol testimony was incorrectly received, and is to be laid out of the case ; then there is no cause for a new trial; for then, the case stands thus; the note, good on the face of it, admitted to be well executed, is, of course, sufficient to entitle the plaintiff to recover, if nothing more is proved. The merits of the defence must, we think, be found, if anywhere, in the second and third objections, viz., the note was given without consideration, and moreover, was a bribe ; and the verdict was against the proof,

Now, as to consideration, it is obvious the note was given for the five hundred dollars, mentioned in the preamble of the resolution of the assembly. The whole of the testimony in the motion, shows this, and the defendant, in his evidence, admits it. The five hundred dollars, then, is a part of the decree itself: that sum the assembly saw fit to exact, as the condition for granting the divorce asked for. How, then, can the note be said to be gratuitous ? The defendant obtained what he thought was an equivalent, and at any rate, it is what he agreed to give ; and upon that undertaking, he induced the assembly to grant him a divorce, The note, then, is not objectionable, on the score of consideration.

Nor is there any reason for treating the note as a bribe. Under the charge of the court, the jury have found, that the note was not given to influence the vote or votes of any one or more, of the individual members of the legislature, but to make provision for the wife’s future necessities. Can this he called a bribe, to induce the legislature to act corruptly ? Indeed, according to my view, it would have been palpably wrong for them, if they granted the divorce, to have done otherwise. What is this unfortunate man’s case 1 He represents to the legislature, that, blinded by the power of love, he was overreached in the tactics of courtship, and was married through fraud, though his wife, beautiful to his eye, was, at the time, bereft of her reason, and he prays to be helped out of this cheerless and sad dilemma, that he may try his hand once more. He asks to be let loose from any further obligation to support his wife,—a questionable affair, at the best, and we must think, a singular ground for legislative interposition; one which we hope will not become a general precedent, to encourage disappointed lovers.

But, if the legislature were in fact, under undue influence, and were bribed to exact this five hundred dollars from the petitioner, is it in the power of the judges to set this matter right ? We are not the guardians of this co-ordinate branch of the government; and it is hardly worth while for us to decide, that the legislature were influenced by bribery and corruption, in discharging their public duties. Indeed, it would be no ordinary task, for the court to preserve the legislature from every sinister and unpatriotic consideration addressed to them, by individuals or incorporated bodies. So long as they are authorized to grant divorces, according to their own judgment, they may prescribe the terms and conditions on which they will do it, in the particular case ; and whatever party chooses to avail himself or herself of such a decree of divorce, must take it as it is, and the prevailing party has no right to assert, as this defendant does, that, without these conditions, the legislature would ever have found the facts to be true, as this defendant claims they were.

This view is equally decisive, in our judgment, that the verdict is right and just, and should not be set aside, as against evidence.

We do not advise a new trial.

In this opinion, Waite, J., concurred. Hinman, J., having tried the cause in the court below, gave no opinion upon the questions of law, but was not of the opinion that the verdict was against the evidence.

Church, C. J.

The questions involved in this case, arise from the action of the general assembly, upon the application of the present defendant, against his former wife, for a divorce.

It may be too late now to discuss the question, whether, since the powers of this government were separated, by the constitution of 1818, and distributed to the distinct executive, legislative and judicial departments, respectively, the general assembly can constitutionally exercise the power of granting divorces. This has been doubted, by some of our best jurists.

I only suggest, in this place, that it has ever appeared to me, that this power is, strictly and properly, a judicial one, and if so, that the legislature, in exercising it, has no greater right than any court of equity, to prescribe terms and conditions upon parties, as the price of its favors.

It was insisted, in the argument, and I understand, conceded by the court, that the execution of the note in question, was either prescribed by the assembly, or sanctioned and approved by its decree. I do not think that the record before us furnishes evidence of this, and I do not see how we can presume it, without great disrespect to that body. Indeed, the parol evidence, which was properly admitted on the trial, shows what the facts were. Individuals,—third persons out of doors, extorted this note, and suggested its being given, to induce the favorable action of the general assembly, upon the defendant’s petition. The record shows only, that such a note had been given, without disclosing the object of it, or the facts connected with it. These are its objectionable features.

My objection to the validity of the note in suit, is twofold. It is without consideration, and the transaction out of which it grew, was without the sanction, and against the good policy, of the law.

It is important to remember, that the note was given, in reference to a state of divorce and separation, and not to fulfil] any of the obligations arising out of the coverture of the parties. And another controlling fact is, and it seems to have been forgotteji, that the petition for the divorce was predicated solely upon the misconduct of the wife,—the fraud which had been practiced by her upon -the defendant, inducing the marriage. It was in truth a fraudulent contract. The general assembly, upon investigation, find this charge to be true, and, of itself, a sufficient ground or cause of divorce, and certainly it was.

- As an innocent, defrauded and suffering husband, this defendant was not under either a legal or a moral obligation, to give alimony, or furnish support to a guilty and divorced woman,—a person no longer to be his wife. Alimony was never, in this state, decreed to be paid, by the innocent to the guilty party, upon the granting of a bill of divorce.

If, then, there was neither a legal nor a moral obligation upon the defendant, to furnish his former wife with her maintenance and support, in future, where was the consideration for his promise to do it, by the execution of this note for that purpose ?

The note was given, as I claim, only to induce the general assembly to do that, which the facts proved, showed that it was their duty to have done without it. In this respect, it is like the case of a promise, to pay an officer extra fees or compensation, for doing what his official duty required him to perform, without such compensation. -

I think the jury mistook the evidence, in believing that it proved a good consideration for the note.

But the evidence in the case, as I understand it, on the*, contrary, proved, that the note was executed for purposes inconsistent with the policy of our laws, and is therefore void.

A contract which can prevent or impede the due course of public justice, is invalid, as being opposed to public policy. Chit, on Con., 678. A contract to procure, or endeavor to procure, the passage of an act of the legislature, by sinister means, or even - by using a personal influence with members, would be void, as being inconsistent with public policy and the integrity of political institutions. Wood v. McCann, 6 Dana, 366. 10 Barb. Sup. Ct. Rep., 489.

I do not suppose that there,was any intention to bribe the legislature, or any member of it; nor that any member was bribed to sustain the application for divorce. If the parties to the negotiation intended to use, or if the note was used, for such a purpose, this would have been something more than an act opposed to the policy of the law,—it would constitute an overt act of crime.

But the objection is, that the note was procured by extraneous management-, and for the controlling purpose of being brought to bear upon the legislation of the general assembly, and furnished a motive of action to members, foreign to the merits of the application for divorce. Such was the leading object of the note, and I can not blit see that the intended effect was produced, and the divorce granted by reason of it. The senate had granted the petition,—the house of .representatives had rejected it,—the outside arrangement between the defendant and certain members of that house, and the counsel employed, was entered into ; and upon this, the note was given, the house of representatives reconsidered its former vote, and granted the bill of divorce ! Can it be claimed by any body, that such a practice is consistent with sound policy and safe legislation ?

The simple truth of the matter, in my judgment, is this: if the petition had merits, it was the duty of the house of representatives, to grant it, and if it had not, it should have been rejected ; and the execution and delivery of this note did not change, and could not have changed or enlarged, the grounds of the petitioner’s complaint against his wife. The house of representatives had no political or moral right, to yield to the foreign motive presented to them.

Nothing is better understood, in our judicial proceedings, than that, in applications for divorce, the courts give no .countenance to combinations or concert between the parties themselves ; and whenever this is discovered, the application is frowned upon, and discarded at once. And the objection is as strong, to concert or combination to procure the same result, when practiced by others, as by the parties to the petition. The agreement or consent of parties, or their friends, will have no effect to procure a divorce, where a real and well established cause does not exist, and is not proved.

Marriage has, very unfortunately, as I think, been called a merely civil contract; and this estimate of it has, in my opinion, done much to unsettle the permanency of the relation. But, so much of the peace, happiness and prosperity of the parties, their children, and society itself, depends upon this institution, that, in Christian countries, it has not anywhere, as yet, been brought down to the low level of a mere property bargain, from which the parties may recede at pleasure. Marriage is yet the great conservative institution, which preserves society and everything in it, which we ought to love and protect; and if any of us have, for this cause, denominated it, holy wedlock, I feel that we do not deserve censure for this. Although it is so far a civil contract, as to be properly subject to the regulation of civil or municipal laws, and the control of civil courts, yet, of all contracts, this should be guarded with the most scrupulous care, and no countenance given to any improper movements, to dissolve it;—and all contracts, having this purpose in view, should be discountenanced, as subversive of the soundest policy.

I do not claim, for courts, any power over the constitutional action of the legislature; but I do insist, that there is a power in courts over the contracts of parties, which have a tendency, and are in truth intended, improperly to influence the action of the legislature. And all such, I hold to be void, as against the policy of the law. I understand the court to say, that this application for divorce “ was a questionable affair, after alland therefore, that it was the duty of the general assembly to require this note to be given. Upon what evidence in the case this opinion is predicated, I am not aware. The decree and finding of the assembly, speak differently. But yielding this, then it is apparent, that the delivery of this note induced the general assembly to do an act of doubtful propriety. Can this be conformable with sound policy ? The case of Sayles v. Sayles, 1 Foster’s N. H. R., 312, (Vol. 1 Livingston’s Law Mag., p. 102,) is in strong analogy with this. The action was upon a note, given to induce a wife to withdraw her opposition to an application against her, for a divorce. The court there says, as I say in this case, that “it may well be inferred, from the fact of the agreement, that it was the belief of both parties, that no divorce would have been granted, if full defence had been made.” And it was held, that such an agreement could not form a valid consideration of the note, and that it was against sound policy, and void.

And I have lately seen the report of a case, and an able opinion delivered by Peck, president judge of the Ohio common pleas, in the case of Randolph v. Richmond, in Vinton county, and published at the unanimous request of the bar; which I think sustains the views I have expressed, and treats all lobbying practices as improper, and all contracts growing out of them as void. Tt was an action on a note, given to induce one to attend the' sittings of the Ohio legislature, and use his influence with members, to procure the division of a county, and to oppose all adverse movements; and this was adjudged to be a void note, as being upon an arrangement which was opposed to good policy.

I think it is not too much to say, that, in private applications by party against party, at least, legislators like jurors should derive their proofs, and their motives of action, from legitimate and unprejudiced sources; and efforts by individuals, out of doors, tending in a different direction, are opposed to good policy; and, indeed, I would not give legal countenance to any street influences, brought to bear upon members of a legislature.

I am compelled, for the reasons I have suggested, to dissent from the views expressed by a majority of my brethren.

In this opinion, Storrs, J„ concurred.


author: Waite, J.

text:
    The Eastern Bank vs. Capron.
    In an action brought in the name of an insolvent bank, by receivers appointed under our statute, against the endorser of a note, which was held as part of the assets of such bank, it was held, that bills, of the same bank, could not be set off against the plaintiffs’ demand, although a portion of said bills were holden by the defendant, at the time of the failure of such bank, and when the note became due.
    This was an action of assumpsit upon a promissory note, made by Henry C. Peckham, dated November 30, 1852, for the sum of two hundred dollars, payable in four months from its date, to one Robert Davis or order, and endorsed by him to the defendant, and by the defendant to the plaintiffs.
    In the superior court, holden at Brooklyn, at the April term, 1853, the parties agreed upon the following statement of facts, and the case was thereupon reserved for the advice of this court.
    The Eastern Bank was duly incorporated, and continued in operation, until March 12, 1853, when it failed, and became insolvent, and its assets are insufficient for the payment of the debts of the bill holders.

      On the 15th of March, 1853, an injunction was issued, by a judge of the superior,court, enjoining the bank from further exercising its corporate powers, and franchises, and receivers were appointed, to close the affairs of the bank, according to the provisions of the statute, in such case provided, who were proceeding in execution of the trust conferred upon them. ■
    The defendant, at the time of the commencement of the suit, was, and for a long time previous thereto, had been, the owner of bills issued by the bank, more than sufficient to pay the note, a portion of which he had, at the time of the failure of the bank, and when the note became due, he offered and tendered to the receivers, so much of the same as was sufficient to pay and satisfy the note, but the receivers refused to receive the same in payment of the note. The note, when it became due, was the property of the bank, but was in the hands of the receivers, as part of the assets of the bank.

      Foster and Carpenter, for the plaintiffs,
    contended, 1. That the action stands on the same ground as if brought in the name of the receivers. Stat. 1849, p. 195. The plaintiffs are trustees, for the objects specified in the statute, but not even remotely for the bank. After satisfying prior claims, the surplus of the assets in their hands, however great, is to be distributed among the stockholders, but -nothing, in any event, goes to the bank. The defendant, therefore, must pay this, like any other debt, and not in the notes of the bank.
    2. That the decided cases lead to the same result. Savings Bank v. Bates, 8 Conn. R., 505. Hallowell and Augusta Bank v. Howard, 13 Mass R., 235. Wheeler v. Raymond, 5 Cowen R., 231. S. C. in error, 9 Cowen R., 295. Haxton v. Bishop, 3 Wend. R., 13, and other cases in same volume. Johnson v. Bridge, 6 Cowen R., 693. Pitkin v. Pitkin, 8 Conn. R., 325. Palmer v. Green, 6 Conn. R., 14. Gee v. Bacon, 9 Ala. R., 699, (6 U. S. Dig., 441.

      Cleveland and E. Perkins, for the defendant,
    contended, 1. That, as against the plaintiffs on the record, the defendant is entitled, both at law and equity, to the set-off claimed. Rev. St., 74. Palmer v. Green, 6 Conn. R., 14. Pitkin v. Pitkin, 8 Conn. R., 325. Starkey v. Peters, 18 Conn. R., 181, The bills of the bank held by the defendant, are not debts due to him by assignment, but by virtue of their negotiable character, being direct promises to him, as “ bearer;” and any suit on them against the bank, must be brought in the name of the defendant.
    2. That the defendant is not precluded from making the set-off claimed, by the appointment of receivers. They do not stand in the position of bona fide purchasers, but mere “receivers” of the property of the bank, possessing only the “ powers and rights” for the collection of debts due the bank, which the bank itself possessed, by virtue of its charter. Rev. St., 195, sec. 248.
    3. That the defendant has the right of set-off, by virtue of an express statute, and it can not be taken away from him, by any less power than that which conferred it.
   Waite, J.

The Eastern Bank was the holder of a nego-

tiable promissory note, endorsed by the defendant. Before it became due, the bank failed, and a judge of the supreme court of errors, in pursuance of the provisions of the statute concerning communities and corporations, issued an injunction against the bank, and appointed receivers of all its property and effects, for the benefit of its creditors.

After the note became due, the receivers caused the present suit to be instituted, and the question now is, whether the defendant has a right to set off against the note, bills issued by the bank, a portion of which he held, at the time of its failure.

Had the bank endorsed and assigned the note to one of its creditors, in payment of a.debt, and the assignee subsequently brought a suit upon it in his own name, the defendant, according to adjudged cases, would have no right-to set off, against the note, the bills of the bank. The Savings Bank of New Haven v. Bates, 8 Conn. R., 505. Robinson v. Lyman, 10 Conn. R., 30. Fuller v. Topliff, 10 Conn. R., 60. Barrough v. Moss, 10 B. & C., 558, (21 E. C. L., 128.)

If the proceedings against the bank, and the transfer of all its effects to the receivers, in pursuance of the statute, have the same effect upon the note in suit, as a bona fide endorsement and assignment made by the bank, for value, then it is clear, that the defendant is not entitled to the set-off he claims.

That statute provides, that, if upon complaint made to a judge of the supreme court of errors, in vacation, it shall be found, upon due enquiry, that the charter of any bank has become forfeited, or the public are in danger of being defrauded thereby, such judge may issue an injunction, enjoining the officers and agents of such bank from proceeding in transacting the business thereof, and may appoint receivers of its property. And such receivers are empowered, to receive all evidences of debt, goods, effects and property of the bank, and appropriate the avails,—first, to the payment of the expenses of settling the concern; secondly, to the payment of the bank notes and bills, in equal proportions; thirdly, to the payment of the deposits; fourthly, to the payment of all sums subscribed and paid in by the state or school fund; fifthly) to the payment of all other liabilities, in equal proportions; and lastly, the surplus to the stockholders.

• Among other powers thus conferred, they are authorized, in.the corporate name of the bank, or in their own names, as receivers, to commence and prosecute any suits in law or equity, and generally to do and perform all other acts, necessary and proper, in the execution of their trust. Stat., title 3, chap. 15.

It is obvious, from these provisions, that the great object of the statute, upon thg failure of a bank, is to arrest its proceedings, take from it, all its property, and place it in the hands of trustees, for the benefit of its creditors. These trustees are empowered to institute suits in their own names, as receivers, or in the name of the bank, at their election.

Had the receivers, in the present case, thought proper to bring an action upon the note, in their own names, as they clearly had power to do, it is difficult to see, upon what ground a set-off could be claimed, consistently with the authorities already cited. It is true, the present suit is not brought in their'names, but in the name of the bank, and the debts ■which the defendant claims to set off, are due from the plaintiffs on the record.

But when the legislature conferred upqn them this discretionary power, as to the mode of instituting suits, we do not think they intended to confer upon them the power of favoring the debtors of the bank, at their pleasure, nor that they can sue one class of debtors, in their own names, for the purpose of compelling them to pay their debts in specie, and another class in the name of the bank, that they may discharge their debts, by paying them in bills purchased at a large discount. In our opinion, the rights of the debtors remain the same, whatever the form of the action.

Besides, it is apparent that the first and great object of the statute is, as far as possible, to protect the bill-holders, and to place them upon an equality. They are to be paid, before any other creditors, and in equal proportions.

Now, if the debtors can pay off their debts, in the dishon ored bills of the bank, purchased, perhaps, at a heavy discount, they will be enabled to profit by its failure, and that too, at the expense of its creditors: such a proceeding would operate to destroy that equality among the bill-holders, so manifestly contemplated by the statute. A large portion of the assets might be swept away, by means of such payments, and little or nothing left for such holders as were either unable or unwilling to sell.

It is indeed agreed, in this case, that a portion of the defendant’s bills were holden by him, at the time of the failure of the bank. Now, if he can even set off these against his note, the effect will be to impair the equality among the creditors, in a similar manner. He will thereby be able to obtain full satisfaction for them, while other holders can receive no more than a dividend.

These views are in accordance with those expressed in a similar case, by the supreme court of the state of New York. Haxton & Brace v. Bishop, 3 Wend. R., 13. It was there holden, that the appointment of receivers of a bank, that had failed, constituted them trustees, not for the bank, but for its creditors ; and that, in a suit brought by them in their names, upon a negotiable promissory note, against the maker, which note became payable, after the failure of the bank and the appointment of the receivers, the defendant could not set off, against the note, the bills of the bank.

We are therefore of opinion, that upon, the facts agreed to, by the parties, in the present case, the defendant is not entitled to the set-off which he claims, and that the plaintiffs are entitled to judgment for the full amount of the note.

In this opinion the other judges concurred.

Judgment for the plaintiffs.