text:
    Stiles and others against Homer and others:
    Litchfield,
    June, 1852.
    IN ERROR.
    Where the defendants in a suit for a forcible entry and detainer, neglected to present a plea in abatement, until after the jury had been called, and two of them had been challenged, and their places supplied by others; it was held, that the defendants, by such delay, had waived all matters in abatement, and that the refusal of the court to allow a plea in abatement to be entered then, was no ground of error.
    Where the principal question, on the trial in such suit, was, whether the complainants were in possession of the premises, at the time of the alleged entry; and the only witness testified, that he entered into possession, as the agent of S, who subsequently conveyed his interest to a joint stock company, or to the complainants; and that he afterwards continued in possession, as the general agent of the company, or of the complainants; the complainants offered no written evidence of title; and the court instructed the jury, that the possession of the witness, as the general agent of the complainants, was a sufficient possession to entitle them to a verdict, and that they could sustain the action in their own names; it was held, that such instruction had a tendency to mislead the jury, as it withdrew their attention from the principal question, and led them to infer, that the possession of the witness, as the general agent of the complainants, was a sufficient possession to entitle them to a verdict, and that they could sustain the action in their own names.
    On a complaint of forcible entry and detainer, the burden of proof is on the complainant, and it is incumbent on him to prove, that his possession has been invaded, by the acts complained of.
    Where a party offered in evidence an entry in a shop book, unaccompanied by the testimony of the clerk who made the entry, though he was living, and in the immediate vicinity, and no reason for his absence appeared; it was held, that the evidence offered was inadmissible.
    The original suit was a complaint for forcible entry and detainer, made by Homer and others, against Stiles and others, to a special court, holden in Roxbury, in Litchfield county, by a county commissioner and a justice of the peace.
    A verdict was rendered in favour of the complainants; and the defendants filed a bill of exceptions, embracing sundry matters, among which are the following, including the facts relating to the questions noticed, in the opinion of the court.
    After the jury had been called, by the court, two of them challenged by the defendants and discharged, and two others called to supply their places, but before they had been sworn, the defendants, not having before pleaded, presented a plea in abatement, stating, that the process had been signed and issued by the commissioner at Hartford, out of the county of Litchfield. But the court refused to receive the plea.
    In the progress of the cause, it became a material question, whether the defendants made the entry complained of, on the 5th or on the 6th of December, 1850; and to prove that it was made on the former day, the defendants offered sundry witnesses, and among them, David J. Stiles, one of the defendants, who testified, that, the day after the entry, he purchased of Bennet S. Preston, a lock and some nails; and to prove, that the purchase was made on the 6th of December, they called said Preston, with his account book, in which the articles were charged on that day, in his handwriting; and he testified that he sold and delivered the articles to Stiles, and believed that they were sold and delivered, on that day.
    Upon being recalled, by the complainants, he further said, that on examining the blotter, a charge of the same articles appeared, in the hand-writing of his clerk, dated the 7th day of December. The blotter was then offered as evidence, to explain the date and sale of the articles. To its admission, without the introduction of the clerk, who made the entry, and who was living in the immediate vicinity, the defendants objected; but the court overruled the objection, and admitted the blotter, as evidence.
    The complainants, on the trial, offered as a witness, Wellington Lee, who testified, that in July, 1850, he entered upon the premises, as the agent of Stearns & Sturges, residing in New-York, and continued to act as their agent, until the October following, when they conveyed their interest to a joint stock company, in the city of New-York, called the New-York & New-England Mining and Manufacturing Company, or to the complainants; and that the complainants were officers of that company, to wit, Homer, President, Dick, Vice-President, and Chauncey, Secretary, and Stearns & Sturges, were stock-holders.
    He further testified, that he acted as the general agent of the company, or of the complainants; that his occupation of the premises had been as such agent, and in no other capacity; that the complaint was made, and the proceedings instituted, by the consent of Homer, the president, at the solicitation of the witness, and without the knowledge of the other complainants; and that he had no knowledge that either of the complainants had ever been upon the premises, or in possession thereof, other than by the witness, as the general agent of the company, or of the complainants. He was the only witness upon this subject; and no written evidence of title was offered, on the part of the complainants.
    The defendants claimed, that the complainants could not maintain their action, because they had never been in the actual possession of the premises, nor could they maintain it, in their own names; but the suit should have been brought in the name of the company, or in the names of the individuals composing thecompany; and prayed the court so to instruct the jury.
    But the court did not so instruct them, but informed them, that the possession of Lee, as the general agent of the complainants, was a sufficient possession to entitle them to a verdict; and that they could sustain their action in their own names.
    After a verdict for the complainants and a bill of exceptions, as before stated, the defendants brought a writ of error to the superior court, which was there reserved for the advice of this court.

      Belden and Orton, for the plaintiffs in error,
    contended, 1. That the court erred in rejecting the plea in abatement. It is the right of the party to tender any proper plea, when called upon to defend. Here, the plea was tendered at the proper time of pleading, and in the proper order.
    2. That the blotter, with the entry therein of the lock and nails, unsupported by the evidence of the clerk, was in admissible for any purpose.
    3. That the complainants’ witness, Lee, discloses a fact, which wholly precludes them from a recovery, viz. that they were never in the actual possession of the premises. It was Lee, if any one, that had been turned out, and kept out; and so the jury should have been instructed. Commonwealth v. Bigelow, 3 Pick. 31.
    4. That the testimony of Lee further precludes the complainants from a recovery; for if they could sustain their suit, each of the members of the company might; and actions might be multiplied indefinitely.

      5. That the court should have charged the jury, that if the parties were the same, or substantially the same, in the present suit, as in the former, the complainants could not recover; but the court, in this part of the case, withdrew the fact from the jury, and left nothing for their consideration.

      Seymour and Sanford, for the defendants in error,
    contended, 1. That the judgment below ought not to be reversed, because the court did not receive the plea in abatement. In the first place, when there is no statute, and no rule of court on the subject, the question whether a plea shall be received,—as being offered in time or not,—is a question necessarily addressed to the discretion of the court. Secondly, in this case, the discretion of the court, under the circumstances of the case, was exercised soundly, and judiciously. But thirdly, the judicial exercise of discretion, is not the subject of revision in error. White v. Trinity Church, 5 Conn. R. 187. Magill v. Lyman, 6 Conn. R. 59.
    2. That the charge given to the jury, was unexceptionable. It was, substantially, that the possession of the complainants, by Lee, as their agent, (if proved, of course,) was enough; and they could sustain the suit. The case, in this part of it, called for nothing more.
    3. That the charge prayed for by the defendants, could not properly be given; for it depended upon a question of fact, which it was the province of the jury to decide. [Other remarks, on the same side, relating to points not decided, are purposely omitted.]
   Waite, J.

1. We cannot say, that the court below erred in refusing to receive the defendants’ plea in abatement, at that stage of the cause, at which it was offered. Such pleas are never favoured by courts.

At an early period in the history of our judicial proceedings, a rule was adopted, that pleas in abatement in the county and superior courts, should be filed by the opening of the court in the afternoon of the second day of the session. 1 Root, 564. And at a later period, this court refused to receive a plea in abatement presented in the afternoon of the third day of the term. Witter & ux. v. Mott & al. 2 Conn. R. 67.

Although no time has been limited, either by statute, or by any rule of court, in which such pleas shall be presented, in cases before justices of the peace, and other inferior tribunals, yet it is obvious, that they ought not to be received, in any stage of the trial. The same reason there exists for requiring them to be presented at an early period, as exists in the higher courts.

Had the plea been presented in proper time, the court would have been bound to receive it, and their refusal would have been error. But in the present case, the defendants neglected to present the plea until after the jury had been called, they had challenged two of the jurors, and their places had been supplied by others. Under such circumstances, we cannot say that the court erred in considering that the defendants, by their delay, and by challenging jurors, had waived all matters in abatement.

2. But we think the court erred, in admitting, in evidence, the entry in the blotter, unaccompanied by the testimony of the clerk, who made it. He was living, and in the immediate vicinity; and no reason is assigned why he was not called to explain the circumstances under which it was made. His testimony would clearly have been the better evidence.

The admission of the entry, unsupported by any oath, was in violation of a well established rule, and does not fall within any of the exceptions, which have ever been recognized. The authorities upon this subject are so numerous and decisive as to render any argument or illustration unnecessary. Cooper v. Marsden, 1 Esp. R. 1. Doe d. Reece v. Robson, 15 East’s R. 32. Doe d. Patteshall v. Turford, 3 B. & Adol. 890. (23 E. C. L. 212.) Poole v. Dicas, 1 Bing. N. C. 649. (27 E. C. L. 529.) Marks v. Lahee, 3 Bing. N. C. 408. (32 E. C. L. 181.) Newell v. Roberts, 13 Conn. R. 63. Livingston v. Tyler, 14 Conn. R. 493. Smith v. Vincent, 15 Conn. R. 1.

We think also, that the instruction given by the court to the jury, relative to the possession of the complainants, had a tendency to mislead them.

The great question, on the trial, was, whether the complainants were in possession of the premises, at the time of the alleged entry. The only witness upon this subject, was Wellington Lee, who testified, that he entered into possession, as the agent of Stearns & Sturges, who subsequently conveyed their interest to a joint stock company in the city of New-York, or to the complainants; and that he afterwards continued in possession, as the general agent of the company, or of the complainants.

From the testimony, therefore, it is entirely uncertain, whether the conveyance was made to the company, or to the complainants; or whether the witness was the agent of the one party, or the other. There was no written evidence of the conveyance. The doubt in the mind of the witness upon the subject, might have arisen from the circumstance that the complainants were the principal officers of the company, although not constituting all the stockholders; and the witness might not have known whether, in the business connected with the occupation of the premises, they were acting in their official capacity, or as private individuals.

At any rate, there was no evidence that the complainants were ever in possession of the premises, unless through the witness, as their agent. If he was not their agent, but the agent of the company, then it is clear, they could not sustain their action.

The defendants, proceeding upon the assumption that the company was the party in possession, claimed, that the complainants could not maintain their action in their own names, but that the suit should have been brought in the name of the company, or in the names of the individuals composing the company.

But the court, disregarding their claim, informed the jury, that the possession of Lee, as the general agent of the complainants, was a sufficient possession to entitle them to a verdict, and that they could sustain their action in their own names.

The charge thus given, without any reference to the defendants’ claim, or to the question which of the two parties was in possession, was calculated to withdraw the attention of the jury from that question, and induce the inference that the possession of Lee was sufficient to entitle the complainants to recover, irrespective of the question whose agent he was.

Indeed, the court can hardly be justified in saying to the jury, that the complainants could sustain their action, inasmuch as they had not done what it was incumbent upon them to do—prove that their possession had been invaded, by the defendants. The burden of proof was upon them; and the fact was not established, by testimony equally balanced. Scovell v. Kingsley, 7 Conn. R. 284.

The view which we have taken of the case, renders unnecessary a consideration of the other questions, presented in the assignment of errors. Our advice to the superior court therefore is, that there is error in the judgment complained of.

In this opinion the other judges concurred.

Judgment reversed.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    Munson against Wickwire.
    In an action for a vexatious suit, brought by A against B and C, B died, and on the trial between A and C, it appearing that the suit complained of was an action for moneys had and received, brought by B and C against A, to recover a sum of money claimed to have been collected by A for B and C, and not paid over to them, A, admitting the receipt of the money, claimed, that he had paid it over to B,in the absence of C. To prove such payment, A offered evidence to prove, that B and C were partners, and that B, during the partnership, in a conversation with A, not in the presence or hearing of C, admitted, that he had received from A the money sought to be recovered in the former suit. Held, that proof of such admission by B, was admissible in this action.
    The ground on which the admissions or declarations of a partner are received against his copartner, is their unity of interest, at the time such admissions or declarations were made; and if that interest afterwards ceases to exist, it does not affect the competency of the evidence.
    This was an action for a malicious and vexatious suit; brought originally against Richard Wickwire and Ransom Wickwire, but during the pendency of the suit, Richard died, and the suit was subsequently prosecuted against Ransom alone.
    On the trial of the cause, at the term of the superior court in August, 1851, it was admitted, that the suit complained of, was one in favour of Richard and Ransom Wickwire against Munson, the present plaintiff, and was brought to recover a sum of money, claimed to have been collected, by Munson, for said Richard and Ransom, in the spring of 1846; which money they claimed, that Munson had received to their use, and had not paid it over to them. Munson, on the other hand, not at first, but now, on the trial, admitting the receipt of the money, claimed, that he had paid it over to Richard Wickwire, immediately upon the receipt of it, in the absence of Ransom. And in order to prove such payment, the plaintiff offered evidence to prove, that Richard and Ransom lived together, transacted their business together, and were partners in their business, and joint owners of the farm on which they lived; and that the money so received by Munson, belonged jointly to them. And in connexion with such proof, the plaintiff offered evidence to shew, that in the year 1848, in a conversation between himself and Richard, but not in the presence of Ransom, Richard admitted that he had received from the plaintiff the money sought to be recovered in said suit, on the ground that it was the declaration of a partner or joint owner as aforesaid. To the admission of the last-mentioned evidence the defendant objected, on the ground that such declaration of Richard could not affect the defendant in this suit. The plaintiff claimed, that said admission ought to be received, first, to prove the fact of such payment, and secondly, in connexion with the other facts before stated, to shew the knowledge, by Ransom, of the receipt of the money by Richard. The court sustained the objection, and rejected the proof of such declaration; but the other facts were allowed to be proved.
    Litchfield,
    June, 1852.
    The jury returned a verdict for the defendant; and the plaintiff moved for a new trial.

      J. H., Hubbard, in support of the motion,
    contended, 1. That the declaration of Richard Wickwire, was evidence against the defendant, on the ground of their identity of interest, at the time the declaration was made. It conduced to prove payment of the debt, as against the defendant. 2 Stark. Ev. 403. Rex v Hardwick, 11 East, 589. Colt v. Eves, 12 Conn. R. 243. 256.
    2. That the prosecution of the former suit, by Ransom
      and Richard Wickwire jointly, they being partners, and having the same interest, was evidence of such a combination between them, or community of design, as raises a fair presumption that the knowledge of one was the knowledge of both; and in all such cases, the admission of one wrongdoer who is not sued, is evidence against another who is sued. Dolman v. Orchard & al. 2 Car. & Pa. 104. (12 E. C. L. 47.)

      Sanford and Peet, contra,
    contended, 1. That the declaration of Richard Wickwire was properly rejected, it being made out of the hearing of the present defendant, and without his knowledge. Sw. Ev. 128. 1 Sw. Dig. 785, 6. (Dut. ed.) 1 Greenl. Ev. § 172. 174. The case stands on the same ground as to this question, as it would, if Richard had never been joined with the present defendant, and his death had not been suggested on the record; this being such a cause of action as does not survive against a joint defendant.
    2. That if the declaration in question was admissible, to prove the payment of the money to Richard, it could not affect the rights of the present defendant in this suit, unless such payment or declaration was brought home to the knowledge of the defendant. The gist of this action is the malicious design of the defendant in bringing the former suit. To prove the declaration of Richard Wickwire, and prove no more, is to prove nothing material to the issue.
   Storrs, J.

This being an action for a malicious suit, it was necessary for the plaintiff, in order to recover, to prove that the action brought against him, by the defendant and Richard Wickwire, was instituted, not only maliciously, but also without probable cause. That action was brought to recover of the present plaintiff the amount of certain moneys of the present defendant and the said Richard, which had been collected and received by said plaintiff for, and never paid over to them. On the trial of the present suit, the plaintiff, after having proved, as he claimed, that the defendant and the said Richard were partners, and that the moneys so collected and received for them, belonged to them jointly, offered to prove further, by the declarations of the said Richard, not made, however, in the presence of the defendant, that he, the said Richard, had, during the partnership, and before the bringing of the suit against the present plaintiff, received of the latter the said moneys sought to be recovered in that suit. As such a payment to said Richard would in law be a payment to both of the plaintiffs in that suit, it was clearly competent for the plaintiff in this suit, (who was the defendant in that,) to prove that fact, because it was relevant for the purpose of shewing a want of probable cause for the bringing of that suit.

But the question, and the only one made before us, is, whether the declarations of said Richard were admissible for that purpose. The defendant insists, that these declarations were inadmissible, because they were not made in his presence or hearing. This objection proceeds on a misapprehension of the character of the declarations. If they had been made by a person not interested in the subject of them, and not in the hearing of the defendant, they would be obnoxious to the ordinary objection against mere hearsay. If, however, they were made in his hearing, whether by a person interested or not in the subject of them, an admission by him of their truth, might have been inferred from the circumstance that he did not oppose or contradict them. They would stand, in that case, on the same ground as declarations made by the defendant himself personally. The declarations here, however, are not claimed to be, nor were they, admissible, for the purpose of proving an admission of that description.

But the plaintiff claims, that, in consequence of the peculiar relation that existed between the defendant and said Richard, when the declarations were made by the latter, they are to be deemed in law to be the declarations of both of them, and therefore as much express admissions by the defendant, as if he had personally made them. Assuming, as we must, for the purpose of this question, that the plaintiff had proved, that the defendant and said Richard were partners, and therefore jointly interested in the claim for the moneys received by the plaintiff, we are clearly of opinion, that the declarations of said Richard, offered in evidence, constituted admissions not only by him, but, consequentially in law, by his co-partner, the defendant likewise, of the payment to them by the plaintiff, of those moneys. They were made by one, whose interest in the subject to which they related was identical with that of the defendant,—against their interest,—respecting a transaction between them, during their co-partnership, and the plaintiff,—material and relevant in their character,—and which respected facts within the peculiar knowledge of the declarant. If Richard, had not died since the bringing of this suit, but had continued to be, as he was originally, a co-defendant therein, his declarations on this subject would clearly have been admissible, against both himself and the present defendant. Bound v. Lathrop, 4 Conn. R. 336. Coit v. Tracy, 8 Conn. R. 275. 9 Conn. R. 1.

But we think, that the question of their admissibility is not varied, by the circumstance that he has thus ceased to be a party. The rule as to the admissions of partners is not confined to those who are parties to the suit. The declarations of one partner are not received against another, because he is a joint party in the suit, but on the ground of their unity of interest, which constitutes them, for this purpose, virtually one person. Therefore, the admission by one partner, may be received against another, though he be not served with process, or a nolle prosequi be entered against him. Bryce v. Watson, 3 J. J. Marshall, 498. 500. So, in an action by a creditor against some of a partnership firm, one of whom pleaded his certificate, and the plaintiff entered a nolle prosequi, the answer of this partner, to a bill filed against him, by other creditors, was received in evidence against the defendants, as an admission against those who were proved to be partners with him, and who were, therefore, as one person with him in interest. In Wood & al. v. Braddick, 1 Taunt. 104. it was held, that the admission of a partner, though not a party to the suit, as to a transaction which took place during the existence of the partnership, is evidence against another partner who is sued, as to joint contracts during the partnership, whether made after the determination of the partnership, or not. And this case has been approved by this court, in the cases which have been cited from our reports. (See also Cowen’s notes, 175. 176. 177. 178. to 1 Phillipp's Evid. 92, 93.) Indeed, there is no diversity of decision on the question, whether the declaration of one partner is admissible in a suit against another, although the former is not a party to the suit, whenever the admission is such that it would be admissible, if the suit were against both. There has been a question in the courts of some of the other states, whether the English rule, as established in Wood & al. v. Braddick, should not be so limited, that the admission of a partner, in order to affect his co-partner, should be made during the existence of the partnership. (Cowen's note, 176. to Phill. Ev. 93.) We have here, however, adopted the English rule, without that qualification; and, moreover, no question has been made that the declarations, in the present case, were made before the partnership was terminated.

We would only add, that we have no doubt that in the suit brought by the present defendant and Richard W. against the present plaintiff, (which the latter here claims to have been malicious,) the declarations of Richard W. here offered would have been admissible to prove payment, by the defendant, to the plaintiffs in that suit, of the moneys received by the former; and that if, after the death of Richard, the present defendant, as his survivor, had brought a suit for the recovery of those moneys, the same declarations would have been admissible for the same purpose; and we discover no reason why, where the parties have only changed sides, the rule of evidence should not be the same.

We are, therefore, of opinion, that the declarations in question, should not have been excluded; and that a new trial should be granted.

In this opinion the other judges concurred, except Ellsworth, J., who was disqualified, by the statute of 1852, c. 24. § 4. p. 36.

New trial denied.


author: Hinman, J.

text:
    Pond against Hine.

      Litchfield,

    June, 1852.
    Where a bond was executed by A, and placed in the hands of a third person, to be by him delivered over to B, in trust for certain females, on certain future contingencies; while the bond was in the hands of the depositary, B refused to accept the trust, for want of provision for his remuneration, but that difficulty being removed, he consented to accept it, and taking the bond into his possession, while the authority of the depositary was unrevoked, brought a suit thereon against A; it was held, 1. that B’s taking the bond and bringing a suit on it, was an acceptance of the trust, unless his previous declaration estopped him from such acceptance; 2. that as the condition of A was not altered, in consequence of the declaration of B, it had not the effect of an estoppel.
    This was an action of debt on bond. The declaration set forth the instrument declared on, dated August 9th, 1845; to which there was a condition annexed, reciting, that certain controversies had arisen in the settlement of the estate of Andrew Hine, deceased, which had been mutually adjusted between Harmon Hine and the defendant, in consideration of which, the defendant promised to pay the plaintiff, the sum of 625 dollars, on or before the 1st of January, 1846; which sum was to be holden, by the plaintiff, and his successor in the trust, upon the following trusts and confidence, viz. that 400 dollars thereof be by him holden for the sole and separate use and benefit of Clarinda Gilbert, wife of W. L. Gilbert, independently of her husband, during her natural life; the interest annually to be paid to her, and on her decease, to her daughter Harriet, until she should attain twenty-one years of age, and then the principal to be paid to her. [There were then other limitations, which it is unnecessary to specify here.] The writing then provided, that the sum of 225 dollars should be holden by the trustee, and accumulate by interest, until Rebecca M. Hine should attain the age of twenty-one years, and be then paid to her. [Other contingencies were then provided for.] The declaration finally alleged the non-performance of the several matters incumbent upon the defendant to perform.
    The defendant pleaded the general issue, with notice of special matter to be given in evidence; on which the cause was tried, at Litchfield, February term, 1852.
    The execution of the writing declared on, was admitted. And it was admitted, that it was executed in pursuance of an arrangement made between the defendant and Harmon Hine, mentioned therein, and placed in the hands of D. B. Brinsmade, to be by him delivered over to the plaintiff, who was not present at the time, and who had no knowledge of the arrangement, at the execution of the writing.
    The defendant then offered evidence to prove, and claimed that he had proved, that after the execution of said writing, and before the delivery thereof to the plaintiff, viz. on the day of August, 1845, he tendered to the plaintiff, the full amount due on said writing, which the plaintiff refused to accept, saying, that he had not accepted, and should not accept, the trust.
    The plaintiff offered himself as a witness, and testified, that he never unconditionally refused to accept the trust, but told the defendant, that as there was no provision made in the writing for his compensation, he should not accept it, unless he could have some compensation for his services; to which the defendant replied, that they ought to do it, and when they got ready to do it, he was ready to pay the money; that no tender was ever made to him, by the defendant; that about a year after the date of the writing, provision having been made for his compensation, he called upon Mr. Brinsmade, took the writing and accepted the trust; and on his way home met the defendant, and said to him, that he had got the writing, and was ready to receive the money upon it; and the defendant replied, that he would see about it; that afterwards, on the 1st day of January, 1847, he again called upon the defendant, and demanded payment of the money due on the writing, but the defendant made no reply; that afterwards, on the 25th of December, 1848, he again demanded the money of him, to which the defendant replied, that he should pay no part of the interest, and he did not know that he should pay any part of the principal.
    The plaintiff, in confirmation of his testimony, introduced his brother Noah S. Pond, who testified, that he was present, and heard the plaintiff demand payment of the defendant, on the 25th of December, 1848, and that the defendant said, that he did not know that he should pay any of it; that the plaintiff, at that time, had the bond in his possession, and the plaintiff and defendant both understood on what account, the demand was made. The defendant offered himself as a witness, and testified, that no demand had ever been made upon him for the money; and that he had never refused to pay it; and that the plaintiff had never notified him, that he had accepted the trust.
    It was not claimed, by the defendant, that his authority given to Mr. Brinsmade, to deliver the writings to the plaintiff, had ever been countermanded.
    Mr. Brinsmade was called as a witness, and testified, that the writing was by him delivered to the plaintiff; but he could not state at what precise time. The defendant claimed, that the burden was on the plaintiff to prove notice, demand, and refusal, by testimony, equal, at least, to that of one good, uncontradicted witness; and that the plaintiff, being the only witness offered to prove those facts, and the same being wholly denied by the testimony of the defendant, and both parties being equally entitled to credit, the facts were not proved by the plaintiff; and the jury could not, therefore, find a verdict in favour of the plaintiff.
    The court did not instruct the jury in the manner requested by the defendant, but did instruct them, that if they found, that the defendant did tender to the plaintiff the amount due on the writing, as claimed by him, they must find a verdict in his favour, unless they further found, that subsequent thereto, the plaintiff did give notice to the defendant, that he had accepted the trust, and made demand of him for the money due on the writing; and that the defendant, upon such notice and demand, refused payment. And in case they found such notice, demand and refusal to have been proved, the plaintiff was entitled to recover the sum specified in the writing, with interest from the time of such demand and refusal. That whether there had been such notice, demand and refusal, was a question of fact for them to determine, from the evidence before them. As a general rule, when two witnesses of equal credit and equal means of knowledge, were directly opposed to each other, and there was nothing more in the case, their testimony would be balanced, and no fact could be found by it. In the present case, the testimony of the plaintiff was, in some respects, opposed to that of the defendant. But in determining the degrees of credit to be given to the one or the other, they have a right to take into consideration the other evidence in the case, and say how far the testimony of each was confirmed or invalidated by it.
    The defendant also claimed, that if the facts were as he claimed to have proved them, that the plaintiff notified the defendant that he would not take the writing, nor accept the trust therein specified, and would not take the money so claimed to have been tendered to him, he was, by his own act, estopped and precluded from accepting the same, and had placed it out of his power ever after to accept the same, so as to enable him to maintain an action at law upon the writing, against the defendant.
    Upon this subject, the court instructed the jury, that if the defendant did, at first, refuse to accept the writing, and the trust, and also to receive the money tendered to him, in the manner claimed by the defendant, yet he was not thereby precluded from afterwards accepting the trust; and that, if the jury should find, that after such refusal and notice to the defendant, he did accept the trust, and receive of Mr. Brinsmade the writing, before the delivery thereof had been countermanded by the defendant, and give notice thereof to the defendant, and demand payment, in the manner claimed by him; and the defendant, upon such notice, made no objection to his receiving the writing and accepting the trust; he had a right afterwards to commence an action at law upon the writing.
    The jury thereupon returned a verdict in favour of the plaintiff, for the principal sum named in the writing, with interest thereon from December 25th, 1845.
    The defendant, claiming that the court erred in omitting to instruct the jury, in the manner claimed by him, moved for a new trial; and the motion was reserved for the advice of this court.

      J. H. Hubbard and G. H. Hollister, in support of the motion,
    contended, 1. That the instruction of the judge to the jury, that the plaintiff, after having refused to receive the money, and after having notified the defendant that he would not accept the trust, might afterwards take up the instrument and accept the trust, was clearly erroneous, as was also the instruction that the plaintiff might commence a suit thereon, provided the jury should find, that he, after such acceptance, notified the defendant that he had taken the bond, and accepted the trust, and demanded the money, and that the defendant made no objection to it.
    2. That after notice to the defendant, that the plaintiff would not accept the trust, the authority of Brinsmade to deliver the instrument to any other person than the defendant himself, was entirely annulled, a fact of which the plaintiff had full knowledge, as it was the result of his own act. He therefore obtained possession of the bond wrongfully; and no presumption of any new contract of delivery and acceptance could be raised from the silence of the defendant, when the plaintiff afterwards informed him of his own unjustifiable conduct in seizing upon the bond; nor could anything be inferred against the defendant, because he did not countermand the authority delegated to Brinsmade, when the plaintiff had himself cancelled that authority.
    A contract of delivery and acceptance is just as important as the signing and sealing of the instrument. 1 Shep. Touch. 57, 8. 2 Bla. Com. 307. 4 Vin. Abr. 27. § 52. Merrills v. Swift, 18 Conn. R. 257. 1 Sw. Dig. 186. (Dut. ed.) Jackson d. Eames v. Phipps, 12 Johns. R. 418. Jackson d. Ten Eyck & ux. v. Richards, 6 Cowen, 617.
    3. That the instruction of the court to the jury, that if the defendant upon the demand of payment and notice, made no objection to the plaintiff’s receiving the writing and accepting the trust, he had a right to commence a suit upon the writing, had a tendency to mislead the jury, and withdraw from their minds the consideration of the evidence of dissent on the part of the defendant, arising out of his declaration that “he did not know that he should pay any part of the sum named in the bond,” as sworn to by the plaintiff himself.
    4. That such instruction was also wrong, because the forbearance of the defendant to speak or act, when so notified, and when such demand was made, raised a much stronger presumption of dissent than of assent to what the plaintiff had done. Broom's Legal Maxims, 95.

      Sanford and Woodruff, contra,
    contended, 1. That the charge on the first point, was correct. The jury were bound to consider all the facts and circumstances; the situation and appearance of the witnesses, and all evidence, confirming or discrediting one or the other; and on the whole evidence, to decide the fact as they should be reasonably satisfied it exists. Such was the charge.
    2. That the charge was equally correct, on the second point. In the first place, the plaintiff is a mere trustee, and cannot refuse, to the ultimate prejudice of the cestui que trust.

    The trust cannot fail for want of a trustee. 2 Sto. Eq. 321. 341. If the trustee should die, without executing the trust, a court of equity would enforce it. Id. 321.
    In some cases, a court of chancery will compel a trustee to execute the trust. In others, the law will permit a person beneficially interested, to sue in the name of the party with whom the contract is made. If a trust be created for the benefit of a third person, without his knowledge, he may affirm the trust, and enforce its execution. Cumberland v. Codrington, 3 Johns. Ch. R. 261. Shepherd v. McEvers & al. 4 Johns. Ch. R. 136. 139. If a trustee refuses the trust, a new one may be appointed.
    These principles show, that there is no equity in this defence; for if the defendant succeeds here, he remains liable in a court of equity. They also show, that there is here no estoppel in pais; for the defendant’s position has not been, and could not be, injuriously affected, by the refusal of the plaintiff.
    Secondly, the bond was placed in an agent’s hands, to deliver. If, on the plaintiff’s refusal at first to accept, the defendant intended to countermand the agent’s authority, he should have done so. Suffering it to remain there, uncountermanded, is continuing his authority to deliver it.
    Thirdly, upon notice of acceptance given the defendant, if he did not countermand the authority, it was a waiver of any advantage he might have claimed from the refusal.
    If the will of one party to accept the offer, is declared before the will of the party offering is revoked, it is a valid contract. The will of the party offering, continuing down to the time of acceptance by the other, their minds meet. This will is presumed to continue, unless revoked, or countermanded.

      If the defendant, on being notified of the plaintiff’s acceptance, made no objection, it was a ratification of the acts the plaintiff,—an implied assent thereto—virtually, a redelivery of the instrument—an affirmation of the contract.
   Hinman, J.

We think the plaintiff, in this case, must be allowed to retain his verdict. The application for a new trial rests entirely on technical grounds, and ought not to be favoured. The defendant does not deny his indebtedness, to the extent of the bond; nor does he show, that any other person than the plaintiff is entitled to receive the money upon it. It is clear, that it cannot be paid to the persons who may eventually be entitled to it, because it is yet uncertain who they will be. The question is, therefore, whether the plaintiff, who now consents to act as trustee, shall be permitted to do so; or whether the beneficiaries shall be turned over to a court of equity, to recover the money, and have another trustee appointed, to receive and keep it for them? The plaintiff was first appointed trustee, by the defendant himself, with the consent of his brother Harmon; and no dissent has ever been expressed, by any one. Has, then, the plaintiff accepted the trust? His taking the bond and bringing a suit on it, is an acceptance, unless he was prevented from accepting, by his previous declaration, that he would not accept. It was said, that this declaration estopped the plaintiff from accepting the trust afterwards. This, clearly, is not so; the defendant did nothing in consequence of this declaration, and he suffers nothing by it, or by the plaintiff’s conduct, inconsistent with it; and, under the circumstances, we do not think this declaration amounted to a refusal to accept. The bond was not present, at the time; and could not be offered to the plaintiff. The defendant and his brother had jointly placed it in the hands of Mr. Brinsmade, for him to deliver to the plaintiff; and this authority was never countermanded, by either of them. Had the defendant, on his being informed by the plaintiff, that he should not accept the trust, notified Mr. Brinsmade of it, and, on that ground, requested him not to deliver the bond, it would have raised a different question. But he suffered it to remain, without objection; and we think it must be presumed to have remained, for the purpose for which it was first put into Mr. Brinsmade's hands.

We think the charge to the jury was right, and do not advise a new trial.

The other judges were of the same opinion, except Waite, J., who was disqualified under the statute of 1852, c. 24, § 4.

New trial denied.


author: Ellsworth, J.

text:
    Calhoun and another against Terry Porter & Co.

    The record of a judgment, which is regular in all respects, except that the costs are left blank until they are taxed by the court, and then inserted, is admissible in evidence in an action of debt on that judgment.
    A judgment rendered on the report of auditors, is not appealable, and an appeal from such judgment is wholly inoperative. Consequently, the judgment so appealed from, remains in full force.
    If the clerk of the court appealed to, enter the appealed cause in his docket, the court, on motion, or otherwise, will order it to be stricken therefrom; and will also, if requested, remand it to the court from which it was appealed.
    This was an action of debt on judgment. The defendant pleaded the general issue, with notice of special matter to be given in evidence. The issue being closed to the court, the following facts were found by the judge.
    The judgment on which this action of debt was brought, was rendered by the county court of Litchfield county, on the third Tuesday of December, 1849, in an action on book, brought by the present defendants against the plaintiffs, for the sum of 139 dollars, 49 cents, damages, and 34 dollars, 88 cents, costs of suit.
    Upon the trial of the cause before the court, the plaintiffs produced in evidence the records of the county court, containing the record of said judgment; and upon examining the same, it appeared, that a blank had been left in the record, for the amount of the costs in that action. The clerk of county court thereupon stated, that, at the time of drawing up the record, the costs had not been taxed, and consequently, the amount could not then be inserted, and a blank was left to be afterwards filled, when the costs should be taxed. That after the appeal referred to in said judgment had been dismissed, by the superior court, the costs had been regularly taxed, by the judge of the county court, and thereupon he proceeded to insert in said record the amount of the costs, so taxed, to complete his record.

      Litchfield,

    June, 1852.
    These statements were not denied, by the defendants; but they claimed, that the clerk had no right, at that time, to make the insertion, especially after he had given to them a certified copy of the record, as it was before the insertion, as it would, in effect, be an alteration of the record. They thereupon objected to the admission thereof in evidence.
    It appeared from such record, that after a judgment had been rendered in said action on book, upon a report of auditors, the plaintiffs moved for an appeal to the superior court, which was allowed, by the county court.
    The plaintiffs then read in evidence a copy of the record of the superior court, to which said action was appealed, containing an order of that court, that said action be erased from the docket, upon the ground, that the action was not appealable.
    There was no evidence that said cause was, by the superior court, remanded to the county court; or that either party ever requested that any such order should be made.
    The defendants further objected to the admission of the record of the county court in evidence, upon the ground, that said judgment was vacated, by reason of the appeal allowed by the county court, and claimed, that no recovery could be had upon said judgment, inasmuch as the cause had never been, by the superior court, remanded to the county court.
    The plaintiffs claimed, that as the appeal was allowed after a judgment rendered upon a report of auditors, the allowance of the appeal was void, and the judgment remained in force, in the same manner as if no appeal had been allowed.
    Thereupon, by consent of parties, the case was reserved for the consideration and advice of this court. And the questions are, whether said record, as perfected by the clerk, is admissible in evidence, in support of the plaintiffs action; and if so, whether it is sufficient to entitle the plaintiffs to recover in this action.

      Woodruff and G. H. Hollister, for the plaintiffs,
    contended, 1. That the clerk had a right to complete his record, at any time. Such is the practice. He did so; and there is no variance.
    2. That the appeal, in this case, was nugatory and void. A judgment on a report of auditors, is not appealable. Bowers v. Gorham, 13 Conn. R. 528. Here, the proceedings in the county court, up to the time of allowing the appeal, were regular. A valid judgment had been rendered. If nothing more had been done, there could be no defence. Nothing more was done, which can be legally recognized. It is said, that the appeal annuls the judgment. True, an appeal, duly taken, annuls the judgment. But an appeal, in a case not appealable, is a nullity. When the county court allowed it, on motion, it did what it had no power to do. The judgment remains in force, as if no appeal had been allowed. Debt will lie upon it. It never was, because it could not be, appealed from. Commonwealth v. Messenger, 4 Mass. R. 462. Campbell v. Howard, 5 Mass. R. 376. Latham v. Edgerton, 9 Cowen, 227. Perkins v. Perkins, 7 Conn. R. 558. 2 N. Hamp. 223.
    3. It is said, the statute, p. 91. § 156. requires the superior court to remand the cause to the county court. This is directory to the superior court. But, in the first place, the validity of the judgment does not depend on the future action of the superior court. Secondly, this provision is intended for the benefit of the appellant only. The reason given is, that he may have a new trial, &c. He may waive the benefit of the provision. In this case, he did waive it, by not requesting the court to remand it. May he first induce the county court wrongfully to allow an appeal, and in the superior court sit silent, and then complain of the superior court for not doing what it was never requested to do?

      E. Johnson and H. B. Graves, contra,
    contended, 1. That the clerk of the county court had no authority, after the suit commenced, and the pleadings of the parties were closed, to come into court, and alter his record of the original action, especially after he had given the defendants a certified copy of the judgment.
    The defendants objected to the admission of the record in evidence; and clearly it was inadmissible, in the shape presented at the time our objection was taken; for, by the plaintiffs’ declaration they recovered judgment for 34 dollars, 88 cents, costs of suit; and by the record, as offered, no costs were recovered. At any rate, the amendment of the record should be allowed, only on payment of costs.
    2. That the county court had no authority to tax the costs, after the action had been erased from the docket of the superior court. The defendants had a right to be heard in the matter of costs.
    3. That by our practice, and in conformity with the statutes of this state, the judgment of the county court was suspended, by the appeal; and the county court must remain silent in the cause until restored to its jurisdiction, by its being remanded from the superior court. Stat. 91. § 156. Dunton v. Mead, 6 Conn. R. 418. Gleason v. Chester, 1 Day, 152. Lockwood v. Knapp, A Conn. R. 257. Scovill v. Seelye, 14 Conn. R. 238. Judson v. Blanchard, 4 Conn. R. 557.
    4. That it was the imperative duty of the superior court to remand the action to the county court, on the ground that it was not appealable; and then the county court could have granted a new trial, &c.; and because the superior court have not done this, we complain; for we say, that we have a good cause for a new trial.
    The statute gives us the privilege, on the remanding of an action from the superior to the county court, of making a motion for a new trial, for any just and reasonable cause but the superior court, by erasing the cause from the docket, has cut us off from the plain and distinct rights given to us by the statute, and deprived the county court of the power to give us the relief provided for.
    5. That the decisions in Massachusetts and New-York are not in point, unless the plaintiffs show, that in those states they have a statute similar to ours.
    However the common law may be, as to the effect of an appeal of a cause not appealable, on the judgment appealed from, it matters not, inasmuch as our legislature has, by enacting our statute on this subject, superseded the common law. By the case in the 5th of Mass. R. it appears, in the reasons assigned by the court, for their decision, that they have no such statute there, directing actions to be remanded, when not appealable. Their law regulating appeals, is entirely different from ours.
    6. That the judgment, as it stands, is not good, and could not be pleaded in bar of another action, for the same cause and thing.
    7. That the defendants waived nothing in the superior court. In the first place, we could not waive the statute. And secondly, it appears of record, that we resisted the action of the superior court, in erasing the cause from the docket. What more could we have done? The statute does not make it incumbent on the parties to move the court to remand the action.

       This was the name assumed by a joint stock company.

   Ellsworth, J.

The two questions reserved for our advice, are, first, whether the record of the county court, as perfected by the clerk, is admissible in evidence; and secondly, if so, are the facts of the case sufficient to entitle the plaintiffs to recover.

We do not hesitate to answer both questions in the affirmative.

, As to the first, it was the duty of the clerk to perfect the record, by inserting the costs, taxed and allowed. Nothing is more common, or unobjectionable. The judgment is considered as rendered during the sitting of the court, and the record speaks from the first day of the term, although the exact amount of costs be inserted afterwards.

As to the second point, it is agreed, that the appeal was illegally taken, and must therefore be wholly inoperative. No appeal lies from a judgment on an award of auditors. Stat. 108. § 205. Bowers v. Gorham, 13 Conn. R. 528. The judgment of the county court always remained in full force, and execution could have, at any time, been taken out to obtain satisfaction. The entry of the cause in the superior court, upon presenting copies to the clerk, could not confer jurisdiction upon the superior court, to entertain the appeal. The court had no other course to pursue, upon learning the truth of the matter, whether on motion or otherwise, than to order it stricken from the docket. Had the appellants wanted a further order, that the cause should be reentered in the county court, they would, of course, on request, had it granted. The statute was made entirely for the benefit of the appealing party; and if they do not request an order, the other party is not to suffer, by that omission. As the plaintiffs had a good judgment, which is still unsatisfied and remains in force, they are entitled to recover, at the present time. Commonwealth v. Messenger, 4 Mass. R. 462. Campbell v. Howard, 5 Mass. R. 376. Latham v. Edgerton, 9 Cowen, 227. 2 New-Hamp. 223. An appeal allowed according to law, and duly taken, undoubtedly annuls the judgment of the court; but it must be allowed and taken according to law; for if not, it has no effect whatever, as, in legal estimation, it is as if nothing had been done. And it would be strange, indeed, if the party appealing, where no appeal can be had, should first induce the court to attempt what it cannot do, and then, when the appeal is rejected in the higher court, could sit silently by, and not ask that the cause may be remanded, and then complain that they are dealt by contrary to law!

We therefore advise, that judgment be rendered for the plaintiff.

In this opinion the other judges concurred.

Judgment for the plaintiff.


author: Church, Ch. J.

text:
    Nettleton against Gridley.
    The mere submission to arbitration of the matters in controversy, involved in an action pending in court, does not operate as a discontinuance of the suit.
    Therefore, where the parties to an action of trover, during its pendency in court, by a submission in writing, submitted said action and the matters therein at issue, to the arbitrament of three persons, without any provision in the submission, that the award might be made by a less number than the whole; and an award was made, by two of the arbitrators, without the concurrence, and with the express dissent, of the third; it was held, 1. that the award so made was void; 2. that the submission did not operate as a discontinuance of the suit in court.

      Litchfield,

    June, 1852.
    In the English courts, a discontinuance—either voluntary, or involuntary—is a matter of practice only.
    This was a motion to the superior court, for a discontinuance of the action, then pending. The nature of the action and the circumstances in which the motion was made, sufficiently appear from the motion itself, which was as follows.
    “Superior Court, February term, 1852.
    Action of trover.

      Mary Nettleton v. Amos A. Gridley.}

    The defendant now, at this term of the court, moves, that said action be discontinued, and the defendant be no longer held to answer thereto; because he says, that said action was brought to the August term, 1850, of this court, and from thence, by regular continuances, to this term; and that, on the 15th day of January, 1852, the plaintiff and defendant, by their submission in writing, of that date, submitted said action and the matters therein at issue, to the final award, arbitrament and decision of John H. Hubbard, Elijah Sherman, and Silas Hoadley, to be heard by them, at the dwelling-house of Bela Seymour, in Watertown, on the 26th day of January, 1852, at 9 A. M., with power to adjourn from time to time, if it should be necessary, provided they made their final award before the 25th day of February, then next; and for the purpose of enforcing and carrying out said award, the plaintiff executed her note, dated January 15th, 1852, for one hundred dollars, payable to the defendant, on demand; and the defendant, with Leman W. Cutler, executed their joint note, dated January 15th, 1852, for three hundred and fifty dollars, payable to the plaintiff two years from January 26th, 1852, with interest from the 1st day of March, then next; which said notes were placed in the hands of said arbitrators, with power given to them in said submission, after hearing the parties, to indorse down, deliver over, and give up the note or notes, to either party, as they should deem legal and just, for the purpose of enforcing their said award. And said arbitrators accepted said trust, and met the parties, at the time and place named in said submission; and they were fully heard thereon; and on the 3d day of February, 1852, a majority of said arbitrators, viz. John H. Hubbard, and Elijah Sherman, made and published their award in writing, in the premises, to the plaintiff and defendant, awarding, that the plaintiff recover of the defendant, upon the matters in said submission, the sum of 291 dollars, 58 cents, damages, and 33 dollars, 83 cents, the costs of said arbitration, making in all the sum of 325 dollars, 41 cents; and pursuant to said submission, endorsed on said note of the defendant and L. W. Cutler, in their hands, the sum of 24 dollars, 59 cents, leaving due on said note said sum of 325 dollars, 41 cents, so awarded by them to the plaintiff, and then delivered said note, so indorsed down, with the said note of the plaintiff, to the defendant, together with said submission, and their said award thereon, to the plaintiff. To which said award and said indorsement and delivery of said note of the defendant and said Cutler, to the plaintiff, the other arbitrator, Silas Hoadley, by his indorsement in writing on said award, dissented and disagreed therefrom. And said submission, award and proceedings thereon have never been revoked, reversed, set aside, or vacated, but are now in as full force as when said submission, award and endorsement and delivery over of said notes were made as aforesaid. All which he is ready to verify. Wherefore, the defendant moves the court, that said action be discontinued, and he no longer be held to answer thereto.”
    To this motion there was a demurrer.
    The court reserved the question what decision should be made on such motion, for the advice of this court,

      Curtis and Buel, in support of the motion,
    contended, That the submission of the cause, while pending in court, by the parties, without rule of court, and without providing that judgment should be entered upon the award, was a discontinuance of the suit. They remarked, first, that where the submission is by rule of court, it is not a discontinuance. Secondly, where the submission is made by the parties, with a provision that the cause shall be continued, and the award of the arbitrators to be the rule of damages, and judgement to be entered upon the award, it is not a discontinuance. But thirdly, where the submission is made by the parties, by their own voluntary act, and without any provision for the future action of the court, it is a discontinuance; and that, whether the submission proves valid or invalid. Camp v. Root, 18 Johns. R. 22. Ex parte Wright, 6 Cowen, 399. The People v. Onondaga Common Pleas, 1 Wend. 314. Larkin v. Robbins, 2 Wend. 505. Town v. Wilcox, 12 Wend. 503. Green v. Patchen, 13 Wend. 294. Jewell & al. v. Blankenship, 10 Yerger, 439. Rogers v. Noll, 6 Humph. 29. Saffle v. Cox, 9 Humph. 142. Bean & al. v. Parker & al. 17 Mass. R. 591.
    After the parties had submitted this suit and the matters therein at issue, to the arbitrators named therein, in manner and form as by the submission appears,—fixed the time of hearing, and made all the provisions they saw fit,—where was this suit pending? before the arbitrators, or before the superior court? In the first place, the parties had entire controul of this matter. They brought it into court, and they could take it away; and it was not in the power of the court to prevent it. Secondly, could it be pending before the arbitrators, when the parties had vested them with the entire and absolute jurisdiction of the cause, and at the same time, be pending before the court? Thirdly, if it was taken away from the jurisdiction of the court, by the mutual agreement of the parties, can that jurisdiction be restored, without the act or agreement of the parties, or without bringing it de novo before the court in form prescribed by law?

      Seymour and Woodruff, contra,
    after remarking, that an award, complied with, would be a bar to the action; but that here no valid award had been made; contended, That a mere submission of a pending action did not operate a discontinuance of the suit. No such rule of law is to be found in the elementary books; nor is there any such decision in the Connecticut reports. A submission cannot be pleaded. There is no such practice, nor decision; nor is there any form for such plea. It is not, then, a rule of the common law. Nor is there any such rule of court in Connecticut; nor practice. 2 Root, 484. The rule in England is to the contrary. 2 Lord Raym. 789. A. D. 1702. Lowes v. Kermode, 8 Taun. 146. Green v. Pole, 6 Bing. 443. (19 E. C. L. 125.) Tidd’s Prac. in loc. In Vermont, a mere submission does not operate a discontinuance. 4 Verm. R. 210. In 17 Mass. 591. not only the action, but all demands, were submitted, and an award made; and it was held, that bail in the action was discharged. It is worth an enquiry how far have the statute provisions in the state of New-York, concerning arbitrations, affected their decisions. The decisions of other states are no evidence of the common law, on this point, but of their practice only. It is enough for us, that we have no such practice. The parties did not intend a discontinuance, or they would have so said. The court will not erase the cause, when no rule requires it, and when the parties did not intend it, unless an award should be made.
   Church, Ch. J.

This motion is predicated upon the belief that a submission of a suit or action pending in court, to arbitrators, without a rule, and not followed by any valid award, operates effectually as a discontinuance of such suit.

Here was a valid submission; but the award published by the arbitrators, did not carry it into effect; the award was void, not having been made with the concurring assent of all the arbitrators. There was no provision in the submission, that any less number of arbitrators than the whole, might make an award; and therefore, according to the doctrine of this court, as held in Patterson v. Leavitt, 4 Conn. R. 50., the award published was of no effect. The injustice of treating this action as out of court, and while the plaintiff is deprived of the benefit of the award intended to be made, is manifest; and especially, as to do so, will be also to deprive her of the securities obtained, and the costs which may be her due, in the pending action.

If the act of submission operated as a discontinuance, as the defendant insists, it would have operated just so, if it had been revoked by him; for a discontinuance once effected by the submission, and the cause out of court, it could not, as we see, be again recalled, without the assent of the parties, at least.

The defendant, in support of his motion, relies entirely upon the authority of some adjudged cases in the states of New-York and Tennessee. No common law authorities are referred to, by the court, in any of those cases, as precedents for the decisions there made; nor have we been able to find any, elsewhere. We must presume, that they were founded upon local rules of practice only, recognized in the judicial proceedings of those states—laws of their courts, and not upon any general principles of the common law, binding upon us. So it is in the English courts. There, a proceeding, called a discontinuance, is recognized, as a matter of practice. And this is either voluntary or involuntary. A voluntary discontinuance is like a nol. pros., or what we call, a withdrawal, or a no appearance, perhaps. An involuntary discontinuance is effected, in various ways. Sometimes, by the neglect of the proper officer of the court, in not bringing forward or continuing causes from term to term; sometimes, by some peculiarity in the pleadings of the plaintiffs; as if the defendant pleads in abatement, and the plaintiff replies as to a plea in bar; or if there be a wrong conclusion of a prayer for judgment in a replication, &c. 10 Mod. 112. 1 Salk. 177. 2 Petersd. Abr. tit. Discontinuance. But this, and many other peculiarities of English judicial practice, we have never adopted. And we no where find, even in the English books, that a bare submission to arbitration, of itself, operates as a discontinuance of an action. Such cases, however, may have escaped our research.

Nor do we recognize any principle of the common law, which should give such an effect to a submission to arbitration. It is but an accord, by which a mere private power, for a private purpose, is conferred, and as yet resulting in no satisfaction or award. Judge Swift, in his Digest, vol. 1. p. 473. speaks of a submission as being a bar; but he refers to no authority for his position, and must, we think, have adopted an exception or peculiarity in the law for a general principle; as where, by the terms of the contract itself, on which a suit is brought, it is provided, that in case of a difference, the dispute shall be referred to arbitrators, then, if a reference accordingly, has in fact been made, it has been holden, that it may be pleaded in bar of that action. 1 Wils. 129. Kyd on awards, 14. 8 Term R. 139. But beyond this, we think it has never been supposed, that a revocable submission was a bar to an action.

The only reason which we have seen suggested, why a submission alone should work a discontinuance, is, that by it the parties have selected another tribunal. But this is not in analogy to well settled rules. If a plaintiff commences a new suit, for the same cause, before another court, and thus selects a different tribunal, this will not defeat the pending action, but the second action will abate. A pending submission would be a good cause for the postponement or delay of the action thus submitted; but when we see, that the submission is fruitless, and may be made so, by the defendant himself, as by revocation, it would be a perversion of justice to treat such submission either as a bar or a discontinuance.

We have refused to erase a cause from the docket, on motion, for extraneous causes not apparent on the record itself; but in such cases, we leave the defendant to plead them, and thus afford the adverse party an opportunity of an issue to try their materiality. Wickwire v. The State, 19 Conn. R. 477. Lowes v. Kermode, 8 Taun. 146. (4 E. C. L. 51.)

Submission of causes in court, to the decision of arbitrators, has been a constant practice in this state, from the earliest times; but no such application as the one now made, nor any such principle as that here claimed, has been heretofore made by, or known to, the profession—good evidence that the law here is not as the defendant believes it to be. And we are not disposed now to adopt the practice claimed; and shall advise the superior court to reject the motion.

In this opinion the other judges concurred.

Motion rejected.


text:
    Watson and another against Cleveland and wife:

      Litchfield,

    June, 1852.
    IN ERROR.
    The testator, after making certain bequests to each of his children, devised the residuum of his estate to his daughter L, and appointed his two sons, Hand M, trustees of such estate, directing, that they should have the entire management thereof, at their discretion, for the benefit of his daughter L, during her natural life; and whatever of said estate should remain in the hands of said trustees, at her decease, should go to his grandson, subject to certain limitations. The trustees accepted the trust under the will, paid over to the cestui que trust, a part of the interest accrued on the trust fund, and then, without any fraudulent intent, withheld the residue, amounting to 311 dollars, though she was, a part of the time, in necessitous circumstances. On a bill in chancery, brought by L and her husband against the trustees, to compel them to pay over the arrears of interest accrued on the trust fund, it was held, 1. that by the will, the estate given to the daughter, was to be managed, by the trustees, for her benefit; 2. that the management conferred, embraced only such controul over it as was necessary to render it productive; 3. that consequently, the daughter was entitled to receive, annually, the net income of the fund; 4. that as the will contemplated also the contingency, that some part of the estate itself, i. e. the principal of the fund, might be wanted by her, and expended for her benefit, the court, in a proper case, would sanction such application.
    This was a bill in chancery, brought by Cleveland and wife against Harvey Watson and Milo Watson, trustees under the will of Levi Watson, deceased, praying that the defendants be compelled to pay over to Lucy C. Cleveland, one of the plaintiffs, the arrears of interest accrued on the trust fund in their hands.
    On the 4th day of June, 1841, Levi Watson, father of Lucy C. Cleveland, made his will, containing the following provisions. After making certain bequests to each of his surviving children, he adds: “And all the rest and residue of my property I give to my daughter, Lucy C. Cleveland, directing her to be at the expence of a monument similar to that at my deceased wife’s grave; and I do hereby constitute and appoint my two sons, Harvey Watson and Milo Watson, trustees of all the estate given herein to my said daughter, Lucy C. Cleveland, with the power of substituting other trustees, by them or the survivor of them; and it is my direction that my said trustees have the entire management of the estate herein given to my said daughter Cleveland, at their discretion, for her benefit, during her natural life; and whatever may remain of said estate in the hands of my said trustees, at the decease of my said daughter Cleveland, it is my will that it be given to my grandson, John Robert McDowell Cleveland, if he shall arrive, at the age of twenty-one years; otherwise, it is my will, that it go to the lawful heirs of my said daughter Cleveland."

    After the death of the testator, the defendants accepted the trust under the will; but withheld from Mrs. Cleveland, though without any fraudulent intent, a part of the annual interest which had accrued upon the residuum fund devised to her. In the years 1846 and 1847, she was, some portion of the time, sick, and needed assistance; but no physician’s bill, or other bills of any considerable amount, accrued in consequence of such sickness. Of the annual interest received by the defendants from the trust fund in their hands, there remained, on the 21st of August, 1851, the sum of three hundred and eleven dollars, fifty-five cents, which, it was agreed, the plaintiffs were entitled to recover, if, by the terms of the will, Mrs. Cleveland was entitled to have appropriated, for her benefit, the amount of the annual interest accruing on the trust fund. The court decided this question in favour of the plaintiffs; and thereupon passed a decree, requiring the defendants to pay over the sum above-mentioned to the plaintiffs.
    To obtain a reversal of this decree, the defendants filed a motion in error, and had the record brought before the superior court; in which it was reserved for the advice of this court.

      Hall, for the plaintiffs in error,
    remarked, that the court below, in its decision, proceeded mainly, if not wholly, upon the idea, that by the provisions of the will, the cestui que trust, irrespective of her necessities, and as a matter of course, was entitled to demand, annually, the payment to her of the interest of the fund, and that the trustees were bound to pay it. This construction of the will, he contended, was wrong; for it wholly destroys the “discretion,” with which, by the express terms of the instrument, the trustees are invested. The testator directs, in totidem verbis, that the trustees shall have the “entire management of the estate” given to his daughter, “at their discretion,” for her benefit, during her natural life. He no more directs the payment of the interest annually, than that the principal shall be paid in full, and on demand. He directs neither, as a matter of course; but commits the whole subject to the management and discretion of the trustees; with the exercise of which, especially if honest and conscientious, this court will not interfere. Leavitt v. Beirne, 21 Conn. R. 1.

      H. B. Graves and G. H. Hollister, for the defendants in error,
    contended, 1. That the county court, by its decree, having found, that the trustees have neglected and refused to pay the annual interest accruing on the fund, or to appropriate it for the benefit of Mrs. Cleveland, notwithstanding her wants, and frequent demands on them for it, the trustees stand convicted of an abuse of their office, and are therefore liable to be called on, by a court of chancery, to pay over the interest remaining in their hands.
    2. That by the terms of the trust, the trustees were to manage the fund, and apply it for the benefit of Mrs. Cleveland—at their discretion, it is true—but still they were bound to appropriate the fund for the benefit of Mrs. Cleveland, in some way.
    The trust was created for the benefit of Mrs. Cleveland; and unless this construction is right, the will of the testator would be defeated. Evidently, the testator contemplated, by this trust, to make a permanent provision for the support of his daughter, and, at the same time, to place it out of the power of her husband and his creditors. But can it be supposed, that the testator meant to give the trustees the right and power of locking up the fund, to the entire exclusion of Mrs. Cleveland?

    3. That the words giving to the trustees the entire management of the fund, are to be taken in connexion with what immediately follows—“at their discretion, for her benefit.” The testator gives to the trustees the power, and directs them, to use their discretion in applying the funds for her benefit, and makes them answerable for a reasonable exercise of judgment in that respect; and that is all:-nowhere does he direct the trustees, under any circumstances whatever, to withhold the benefits of the fund from Mrs. Cleveland; but, on the contrary, the will expressly provides, that Mrs. Cleveland shall be benefitted, “during her natural life," by this fund, to be managed and applied, at the discretion of the trustees.
    The will is to be construed liberally in favour of the donee. Such is the rule of law, on the subject. Imlay v. Huntington, 20 Conn. R. 147.
    4. That by the finding of the county court, it appears, that Mrs. Cleveland's condition was, and has been, such as to need the annual interest accruing on the fund, for her comfortable support and maintenance; and that the trustees have only allowed her, at the rate of about thirteen dollars a year, since her father’s decease; and since May, 1847, have wholly refused to pay her any money, or to put in exercise their discretion, by way of making any disbursements on her account, although she has made demand for it, each year.
    If they can, therefore, withhold the benefit of this fund from Mrs. Cleveland five years, may they not do it forever? We cannot believe, that such a monstrous doctrine will receive the sanction of this court.
    5. That the testator, by his will, not only intended that his daughter should have the interest accruing on this fund, but that the trustees should appropriate the principal, if the circumstances of Mrs. Cleveland required it; for he provides, that “whatever may remain of said estate, at the decease of Mrs. Cleveland, it is my will, that it be given to my grandson.”
   Church, Ch. J.

The bequests and directions in the last will and testament of Levi Watson, deceased, furnish the only rule of decision in this case; for by the finding of the county court, no extraneous facts appear, which can guide our judgment, except that the trustees, who are the defendants below, refuse to pay to the plaintiff's the accruing income given to the wife, by said will.

The trustees have, with good intentions, assumed to direct the appropriation and expenditure of the income of the fund, in their hands, which was given to Mrs. Cleveland, by the will of her father, and, at their discretion, have withheld from her such portions of said income, and at such times, as they pleased. This has been done by them, under a mistaken view of the powers conferred upon them, by the will. The authority thus conferred, was, “the entire management of the estate given to Mrs. Cleveland, at their discretion, for her benefit, during her natural life.” By the management of the estate, was only meant, the controuling of the property, to the end that income and profit should be derived from it; such as leasing it, investing, securing, collecting, &c. There is no intimation in the will, that the trustees are to act the part of guardians of Mrs. Cleveland, and direct her expenditures of the income of the property thus invested and managed for her use; or to substitute their discretion for hers, in regard to the wants of herself and her family. The estate is to be managed for her benefit, during her life, and not for the purpose of securing a surplus and an accumulating income, for the benefit of the testator’s grandson, named in the will. He is to receive, on the death of his mother, if he survives her, only whatever may remain of the estate in the hands of the trustees, that is, of the estate so given to them in trust. To ensure Mrs. Cleveland the benefit of the estate, during her life, she must receive at least the annual net income of it; otherwise, the purpose of the testator will be defeated; for he never intended to give to the trustees a discretionary power to withhold the whole, or any part of such income; so far from this, he contemplated the contingency that some part of the estate itself, the principal of it, might be wanted by, and expended for, the benefit of his daughter. She was his first care; his grandson could receive only the residuum. It seems to us, that the trustees would reverse this intention, and would accumulate a fund from the proceeds of this estate for the benefit of the grandson, at the expence of the daughter. In the case of Beirne v. Leavitt, 21 Conn. R. 1. the testator, after devising a portion of his estate to his daughter, for the use of herself and her children, gave express authority to his trustees, not only to manage the estate, but also to apply the property and proceeds as to them should seem best. He made his trustees, in a measure, conservators over his daughter and her family; and it was on this ground alone, that this court decided, that the trustees might withhold the funds and refuse payment of her debts contracted without their approbation. The distinction between the two cases is manifest.

We must advise, that there is no error in the decree of the county court.

In this opinion the other judges concurred.

Judgment affirmed.


text:
    The town of Torrington against The town of Norwich.
    Where a mother, who has since acquired a settlement, by commorancy, in the town of N, continued to reside in that town, with five minor children of hers in her family, of whom C was one; C remained with her, as part of her family, and was supported by her, and subject to her controul, until April, 1833, (which was before she had acquired,a settlement in N,) when his brothers having all left her, and she, being unable to find employment for her children, by reason of the stoppage of the factories, said to C, who was still a minor, that he might go and take care of himself, and have his time and his earnings; to which C assented; and it was so mutually agreed between them by parol, no pecuniary consideration being paid or received, by either of the parties; C thereupon left his mother, and found employment, by different persons, in different places, returning to his mother in N, in two instances, and boarding with her through the winter, and paying his board, for the purpose of attending school; in an action for the support of C's wife, it was held, 1. that the agreement between C and his mother, was as valid and effectual as if it had been in writing; but 2. that whatever else might be its effect as between the parent and child, it did not release the child from the authority and controul of the parent, nor the parent from the duty of maintaining and protecting the child; 3. that consequently, it wrought no such emancipation as prevented C from deriving from his mother her settlement in N.
    This was an action of assumpsit, to recover disbursements by the plaintiffs, for the support of Sarah Daniels, alleged to be a pauper, having a settlement in the town of Norwich. The defendants pleaded the general issue; and the cause was tried at Litchfield, February term, 1852. The jury found a special verdict in which the material facts in the case are stated. After finding the plaintiff’s disbursements for the necessary support of Sarah Daniels, amounting to one hundred and fifty-one dollars, and notice thereof to the town of Norwich, the verdict found the following facts in relation to her settlement. In April, 1839, she was married to Caleb Daniels, and thereby acquired the settlement of her husband; her previous settlement having been in the town of Torrington. Caleb Daniels, the husband, was born in the town of Griswold in this state, on the 15th of December, 1816. His parents afterwards removed to the town of North Stonington, where his father died. His mother, having thus become a widow, with five minor children of hers, of which Caleb was one, removed, on the 1st of May, 1829, to the town of Norwich, where she continued to reside until the summer of 1839, and, by virtue of such residence, acquired a settlement in that town, at the expiration of six years from the time of such removal. Her son Caleb continued to reside with her, as a part of her family, and was supported by her, and subject to her controul, until April, 1833, when his brothers having all left her, and she, being unable to find employment for her family, by reason of the stoppage of the factories, said to him, that he might go, and take care of himself, and have his time and his earnings; to which he assented, and it was so mutually agreed between them; but no such agreement was made in writing; nor was any consideration paid or received, by either party. He then went to Lebanon, and agreed with his brother, who lived in that town, to work for him six months; and continued to live with and work for him, during that period. On the 1st of October following, he returned to his mother in Norwich, and agreed with her, to board him through the winter, that he might attend school. He continued with her, boarding with her, paying her for his board, and attending school, until the 1st of April, 1834, when he went back to Lebanon, and hired himself to a man living there, for the period of seven months; and continued to live with and work for him, during that period. On the 1st of November, 1834, he again returned to his mother in Norwich, and agreed with her to board him, that he might attend school the ensuing winter. In the spring of 1835, he hired himself to a man living in Norwich, for one year; and continued to work for him, and other individuals in Norwich, until the 1st of January, 1836, when he went to Colchester, and soon afterwards to Torrington, where he remained until he was married. From the time he returned from Lebanon in November, 1834, until he finally left Norwich, he continued to board with his mother, and also worked for different individuals in Norwich, except while attending school in the winter after his return, and paid her for his board, in pursuance of his agreement with her to do so; she, at the same time, keeping other boarders. He is still living; and has never acquired any settlement since he left the town of Norwich, as above stated.

      Litchfield,
    June, 1852.

      The case, embracing these facts, was reserved for the advice of this court, as to what judgment should be rendered thereon.

      Woodruff and Barbour, for the plaintiffs,
    contended, 1. That the settlement of Caleb Daniels was in Norwich. His mother acquired a settlement in that town, during his minority; and he takes that settlement, notwithstanding his occasional absence. Bozrah v. Stonington, 4 Conn. R. 373. Oxford v. Bethany, 19 Conn. R. 229. Hebron v. Colchester, 5 Day, 169. Dedham v. Natick, 16 Mass. R. 135. Great Barrington v. Tyrington, 18 Pick. 264. 5 N. Hamp. 348.
    2. That, in this case, Caleb was not emancipated in such a way as to prevent his deriving a settlement from his mother. The agreement between him and her might be an emancipation, so far as to give him a right to his wages, as against her. But it did not constitute an emancipation, such as affects the question of settlement. Residence out of the family, is no emancipation; nor working for others, at his pleasure, without her controul; nor the removal of the parent to a distance, leaving the child in the care of another until eighteen, to be treated as an adopted child; nor if the minor lived about, in several places, and the father refused to take care of him; nor if given away, at three years of age. Bozrah v. Stonington, 4 Conn. R. 373. Sumner v. Sebec, 3 Greenl. 223. Clinton v. York, 26 Maine R. 167. Salisbury v. Orange, 5 N. Hamp. 348.
    3. That the arrangement between Caleb and his mother, was a mere gift, without consideration. She continued to have the legal controul of her son. He could not exonerate her from it. The policy of the law continues it until he is twenty-one. Before that period, there can be no emancipation, unless by marriage, or by contracting a relation permanently excluding from parental controul. Rex v. Wilmington, 5 B. & Ald. 525. (7 E. C. L. 180.) Rex v. Rotherfield Greys, 1 B. & Cres. 345. (8 E. C. L. 95.) Adams v. Oaks, 20 Johns. R. 282.
    4. That if, after 1833, Caleb was not acquiring a settlement in his mother’s right, must he not have been in his own, and so, by adding the two terms, be settled in Norwich. Adams v. Foster, 20 Johns. R. 452.

      J. H. Hubbard, for the defendant,
    contended, That Caleb Daniels, at the time of his marriage, was not settled in Norwich. In support of this position, the following considerations were urged.
    In the first place, in April, 1833, long before his mother had acquired a settlement in Norwich, he, being then seventeen years of age, was emancipated, and thereby acquired new rights, inconsistent with the subsequent controul and authority of his mother. Bouvier’s L. Dict. 509. Rex v. Roach, 6 Term R. 247. 2 Sw. Dig. 822, 3. Bozrah v. Stonington, 4 Conn. R. 373.
    Secondly, the right which a parent has to the services of a minor son, arises merely from the obligation to furnish him support; and the contract in April, 1833, that the son should have his time and earnings, was a valid contract, and binding on the parent. 2 Kent’s Com. 193. Morse v. Welton, 6 Conn. R. 547. Whiting v. Earle, 3 Pick. 201.
    Thirdly, no rule of policy is opposed to such a contract. In this case, the agreement between the mother and her son, was well adapted to their condition: the parent being unable to procure employment for her children, in consequence of the stoppage of the factories, and the son being willing to separate from the family, and go in search of employment.
    Fourthly, the place of Caleb’s settlement, at this time, was the one acquired under his father; and that remained to him until he should gain a new one in his own right.
    Fifthly, the separation of Caleb from his mother’s family, in April, 1833, was made without any intention of his ever returning, and again becoming subject to his mother, or a part of her family.
    Sixthly, his returning to Norwich, in the fall of 1833, and again in the fall of 1834, and becoming a boarder in his mother’s house, for temporary periods, under a contract to pay for such board, confirms the contract of emancipation. When the mother surrendered her right to the services of her son, she surrendered her authority and controul over him. The separation was voluntary, and intended to be perpetual.
   Storrs, J.

It being found, by the special verdict, in this case, that the mother of Caleb Daniels, who was the husband of Sarah Daniels, the pauper, for the expences of whose support this action was brought, acquired a settlement in Norwich, during the minority of said Caleb, it is conceded, that said Caleb derived from his mother, and not having since acquired a settlement elsewhere, still has, a settlement in that town; and that that town is consequently, the place of the settlement of his wife, unless he was prevented from deriving a settlement there from his mother, by virtue of the agreement made between her and the said Caleb, during his minority, and before she acquired such settlement, and of his absence from her subsequent to and in pursuance of that agreement. That his mere absence from her, during that period, independent of the terms and effect of that agreement, would prevent his following or acquiring her settlement, cannot be, and indeed has not been, claimed. The cases on this point are decisive and too familiar to require citation. The question of his settlement, therefore, depends entirely on the effect of that agreement, which is claimed, by the defendants, to constitute an emancipation of said Caleb, by his mother, which prevented him from deriving a settlement from her in the town of Norwich. The terms of that agreement are very loosely stated in the verdict. It merely finds, that on the first of April, 1833, (which was before the mother of Caleb had acquired a settlement in Norwich, and while he resided with her there,) she, being unable to find employment for her family, it was verbally mutually agreed between them, that he might go and take care of himself, and have his time and earnings; and that there was not any consideration paid or received, by either of them; and that he then left her, and obtained employment from time to time elsewhere, occasionally returning to and remaining temporarily in her house. No objection has been made to this agreement, on the ground that it was verbal, and not written; and we are of opinion, that if there were no other objection to it, it would be as valid and effectual as if it was in writing. Nor, in the conclusion to which we have come in this case, have we deemed it important to consider the circumstance that no pecuniary consideration was paid or received, by either of the parties to this agreement, as was probably the meaning of the jury in their verdict. If however, the agreement was of such a character, that, if made on an adequate consideration, whether pecuniary or otherwise, it would have had the legal effect of so separating the son from his mother as to deprive her of her parental controul over him, such a consideration would probably be held to be inferrible from the terms of the agreement itself.

We come, then, to consider the effect of this agreement on the settlement of the pauper in question, supposing it not to be invalid, by reason of a want of form or consideration. We do not deem it necessary to scan very critically the precise terms of it; for, conceding that its stipulations are as broad and full as the defendants claim, viz., that the son might leave the service of his mother, and appropriate his earnings to his own use, and be free from her controul, and that she should thereafter be discharged from her obligation to support him, we are clearly of opinion, that whatever might be the effect of such an agreement, as between the son on the one part, and the parent, or another person, on the other, respecting the personal right of the son to retain or recover his earnings, in his own name and for his own benefit, it does not release the child from the authority and controul of the parent, nor the parent from the duty of maintaining and protecting the child. It neither destroys nor impairs the previous subordinate relation which the child sustained towards the parent, as a member of the family. The duties and legal relations of minor children and their parents towards each other, are imposed by the law, not merely in accordance with the natural obligation, but from considerations of high public policy and the general welfare of the community; and cannot be divested or varied, by any private agreement between them. In Adams & Barnum v. Oaks, 20 Johns. R. 282. the father of the pauper in question, when the latter was seventeen years of age, executed an instrument in writing to him, whereby, for the consideration of fifty dollars, he, in the fullest manner, released his son from all claim to his future services, and permitted him to work and contract for himself, and go where he pleased, relinquishing all parental rights and controul over him. On the question as to the settlement of the son, it was held, that the instrument, as an act of emancipation, was a nullity, and that the father could not, by such an act, devest the right of a derivative settlement of the son, acquired from the father. Platt, J., in giving the opinion of the court, says: “The contract, whereby the father attempted to release his infant son from all parental charge and controul, was absurd, and can have no effect upon the question before us. The law determines the relation between a father and his infant children, which it is not in their power to change.” This decision is directly in point on the question before us; and was approved and confirmed, in Adams & Barnum v. Foster & Lawrence, 20 Johns. R. 452. with reference to the same agreement.

There is no doubt that a minor may, in certain cases, contract a relation or obligation, which is inconsistent with, and will therefore, supersede or suspend, his subordinate relation to his parents, and thus prevent him, while such subordinate relation is so superseded or suspended, from deriving or following a settlement subsequently acquired by such parents. This would be on the ground that he was emancipated, as it is termed, from the parents, before the acquisition of such settlement, and therefore, that its derivation by the child from the parent is prevented or delayed, by the destruction or suspension of the subordinate relation of the former to the latter, on which the derivation of the settlement by the child is founded. Thus, a minor son, by contracting marriage, or, in England, by enlisting into the service of the king, will be so emancipated, and thus prevented from acquiring the new settlement of his parent. In these cases, the contract of marriage in both countries, and that of enlistment in England, is a lawful contract, recognized and allowed as valid, and which, therefore, it was competent for the minor to make; but the relations created by them, in the one case, to his wife and family, and in the other, to his government are inconsistent with, and therefore supersede, the parental controul and authority, and the subordinate relation which he before sustained to his parents, as a part of their family; and consequently, prevent or suspend the acquisition of a settlement from either of them, as one of the consequences flowing from such subordinate relation. And the same reason will be found applicable to all the cases where it has been held, that the settlement of a minor is prevented, by his emancipation, resulting from a contract made by him. Rex v. Wilton, &c. 3 Term R. 355. Burr. Set. Ca. 170. Rex v. Wilmington, 5 B. & Ald. 525. (7 E. C. L. 180.) Rex v. Rotherfield Greys, 1 B. & Cres. 345. (8 E. C. L. 95.) East Woodhey v. West Woodhey, 1 Stra. 438. Rex v. Norton, 2 Stra. 831.

In the present case, the agreement between the pauper’s husband and his mother, being void, did not change the relation between them, nor affect his subordinate situation towards her; and therefore, did not prevent him, or, consequently, his wife, from deriving a settlement from her in Norwich.

The superior court is therefore advised to render judgment for the plaintiffs.

In this opinion the other judges concurred.

Judgment for the plaintiffs.