author: Swift, Ch. J.

text:
    Wolcott against Coleman :
    IN ERROR.
    An action will lie in favour of one of two jomi cove-nantees, against the covenantor, for fraudulently taking and pleading a discharge from the other cove-nantee, who had assigned his interest in the covenant, and was a bankrupt, of which the defendant had notice.
    Where there are several counts in a declaration, some of which arc good,and others bad, and the plaintiff obtains a general verdict, with entire damages, it will be presumed that .he verdict was given, and that the damages were assessed, upon the good counts only.
    THIS was an action on the case, by one of two covenan-tees, against the covenantor, for fraudulently taking, and pleading a discharge from the other covenantee, who had assigned his interest in the covenant, and yas a known bankrupt. Several questions arising out of the same cause, have heretofore been submitted to the consideration and decision of this Court, first, on a ¡notion, and afterwards on a petition, fora new trial. There was also a former suit between the same parties, for the same cause of action, which was brought up, on a writ of error, and was here decided upon its merits.

       The declaration in the present action was copied, with little variation, from the one in that; but as one of the points now made was not agitated before, and as the principle on which the right of action depends has been deemed, by the Court, of sufficient importance to induce them to revise their former decision, it seems proper to give a more extended view of the declaration, than has yet been given.
    The declaration consisted of five counts. The first was as follows : “ That on or about the 4th of September, 1793, the plaintiff' and John Taylor of Northampton, in the common - wealth of Massachusetts, entered into a certain contract in writing with the defendant, bearing date on the same day and year last aforesaid j which contract was duly executed by said parties, under their hands and seals ; and the same contract was, and is, of the tenour following, viz,. « This indenture, made in the. city and county of Hartford, on the 4th day of September 1795, between William Coleman of Greenfield, and John Taylor of Northampton, in the county of Hampshire. and commonwealth of .Massachusetts, of the one part, and Alexander Wolcott, of Windsor, in said Hartford comity, of the other part, witstesseth,

      Hartford,

    November, 1817.
    That whereas the said Alexander hath discovered, that there is within the state of Virginia, tí*, within the Louisa forks of the riyer Sandy, and to the north-eastward of the main branch thereof, and the Cumberland mountain, or great Laurel-Ridge, a valuable tract of land, containing, by estimation, fifteen hundred thousand acres ; which lands are supposed to be unlocated, and the property of the said state of Virginia : And whereas the said William and John are desirous of obtaining a good title to 200,000 acres, part of said tract of land ; and being also desirous of the aid of the said Alexander in procuring said title : It is, therefore, for the purposes aforesaid, mutually covenanted and agreed, by and between the said parties, as follows, tí*. The said William- and John, in consideration of the covenants and agreements by the said Alexander herein-after entered into, do covcnanl to and with the said Alexander, that they will advance and pay to him, on or before the 6th day of September instant, three cents, lawful money, on each of said 200,000 acres ; and the said William and John further covenant to and with the said Alexander, that they will pay the said Alar and cr, on or •fore the 1st day of January next, one cent more on each of said 200,000 acres, and also, that on or before the 1st day of January, which shall be in the year of our Lord 1797, the said William and John will pay unto the said Alexander the further sum of three cents for each of said 200,000 acres ; and also the said William and John further hereby covenant, that on or before the 1st day of January, which shall be in the year of our Lord, 1798, they will pay to the said Alexander the further sum of three cents for each of said 200,000 acres, with the lawful interest from and after the 1st day of January 1797. And the said Alexander, in consideration of the covenants and agreements by the said William and John in this indenture made, do hereby covenant and agree to and with the said William and John, that he will forthwith proceed to the city of Richmond in said state of Virginia, and there diligently and faithfully make all necessary en-quiries relative to said tract of land, and if it shall appear that said tract of land hath not been located, nor purchased 0f silM state, by any other person, then the said Alexander will proceed immediately to locate and to and for said William and John, 200,ono acres, part of said tract of land nicntioned, and will also, as soon as may be, procure a grant or patent therefore from said state of Virginia, with, and according to the forms prescribed in and by the laws of said state of Virginia, in such case provided, and under the seal thereof, to the said William and John, or to such person or persons as the said William and John shall legally authorize and appoint to receive said grant, on or before the first day of April next; which location and survey, and the expense attending the same, shall be made and completed, and said grant or patent issue, at the sole expense or charge of the said Alexander, so that said lands and the procuring of said title as aforesaid, shall cost the said William and John no more than said ten cents for each acre. And in case the said Alexander, on his arrival in said state of Virginia, shall find that part of said tract of land hath already been located, and the said Alexander cannot obtain the same of said state, in such case the said Alexander covenants to procure for said William and John, such title as is above described to such pari of said remaining and unlocated tract, as shall be in the proportion to said part unlocated, as said 200,000 acres is to 1,500,000 acres; but in case the said Alexander, on his arrival in said state of Virginia, shall find mat the whole if said tract is located, and he cannot obtain it, in that case the said Alexander covenants to and with the said William and John, to return to them, as soon as it can be done with convenience, the whole of said money, by said William and John advanced, as aforesaid, without deduction ; and in that case, it is further mutually agreed and understood, that the said William and John shall not pay to the said Alexander, any of the subsequent sums by the said William and John in' this indenture covenanted to be paid, but shall be therefrom wholly excused and exonerated. And it is further mutually agreed and understood, that in case part only of said 200,000 aeres of land shall be by said Alexander procured for said William and John, on the sums above specified, in that casi.* the said William and John shall pay to the said Alexander, onl} so in uch of said several sums as shall amount to said rate of ten mils per acre : and the same shall be paid at the times, and in the manner, above specified. And it is also further agreed and understood by said parties, that in case said Alexander, on his arrival in said state of Virginia, shall find said tract of land in part or wholly unlocated, and shall proceed to locate and survey the same to the said William and John, in manner as aforesaid, and the said William and John shall neglect or refuse to pay the said Alexander said sum os one cent for each acre of said land, which shall eventually be procured for said William and John as aforesaid, on or before said 1st day of January next, covenanted to be paid to the said Alexander, by the said William and John, in that case the said Alexander shall be at liberty, at any time within one month from and after said 1st day of January next, to repay to the said William and John the whole of the money by them advanced to the said Alexander as aforesaid, witis lawful interest thereon from the time advanced to the time of repayment; and thereupon the said Alexander shall be wholly excused and exonerated from any other or further claim, which the said William and John have, in virtue of, or, on account of, the covenants in this indenture. And to bind ourselves to the due and faithful performance of all and singular the covenants and agreements in this indenture, made, and by each party respectively to be kept and performed, according to the true intent and meaning of said parties, we have hereunto interchangeably affixed our seals, and subscribed our names, the day and year first above w ritten,
    in presence of Alexander Wolcott, [u. s. ;

      Nathaniel Terry, William Coleman, [i. s.}

      Hezekiah Huntington. John Taylor.” [i. s.j
    “ And the plaintiff avers, that no copartnership connexion ever subsisted between the plaintiff and said John Taylor,- and that though jointly obligated for the payment of the sums stipulated to be paid to the defendant in the above recited contract, yet the said John Taylor and the plaintiff agreed to hold, cadi for himself, an equal part or portion of the lands that should be eventually obtained by said contract, to be sold and disposed of lor the separate benefit of each, and not for their joint advantage.
    “ And the plaintiff further says, that in pursuance of the above recited contract or indenture, he and the said John Taylor paid to the defendant, on or about the 4th day of September, 1795, the sum of 6000 dollars, in said agreement stipulated to be paid, by him and the said John Taylor, on | lull: day, in full of said stipulated sum of C,30G dollars, which was the proper money of the phr.nl iff.
    “ And the plaintiff avers, that on or about the J9th day of November, 3 795. the said Joint Taylor did, by a writing, under his hand, by him well executed, relinquish, assign and make over to Eliel Gilbert of said Greenfieltl, and to bis heirs, executors, administrators or -assigns, all iiis right, title, interest and claim in and to the above mentioned and recited contract, meaning thereby to assign the one moiety thereof. And the plaintiff, on the same 12th day of Novem-her, and at the same time the said John Taylor's assignment was made to the said Eliel Gilbert as aforesaid, did also assign and make over to the said Eliel Gilbert, by a writing under the hand of the plaintiff, by him well executed, all his right, claim and interest in and to said contract above recited, except as to one third part of said contract, which one third the plaintiff retained to and for his own use j by virtue of which assignment of the said John Taylor and the plaintiff, ' made to the said Eliel Gilbert, on said 12th day of November, 1795, as aforesaid, (which assignments were entered upon said original contract, or a copy thereof,) the said Eliel Gilbert became vested with, and legally possessed of, all the rights, title and interest, which the said John Taylor and the plaintiff had in and to two thirds of said contract above recited ; and the said John Taylor, by his said assignment to the said Eliel Gilbert, divested and dispossessed himself of all the right, title and interest, which he had, or ought to have, in or to said contract, or in consequence of the covenants entmd into, in and by said contract, or the monies paid upon said f ontract above recited ; of which assignments, made by the said John Taylor and the plaintiff to the said Miel Gilbert, in manner and form as aforesaid, the defendant, on m about the 1st day of January, 1796, had full knowledge, and acquiesced therein, and hath since settled with said Gilbert, and paid him, to his full satisfaction, for the said two third parts of said contract assigned to the said Eliel Gilbert, by the said John Taylor and the plaintiff as aforesaid, and hath been discharged therefrom, by the said Eliel Gilbert, by a receipt in writing, well executed by the -said Eliel Gilbert to the defendant, in full for all the said right and interest which the said Eliel Gilbert had in and to said contract as aforesaid.

      “ And the plaintiff further says, that on or about the 2nd day of January, 1796, he paid to the defendant a further sum of 500 dollars* on account of the one third parlor share of the above recited contract retained and owned by the plaintiff as aforesaid ; and that, on or about the 8th day of April, 1796, the plaintiff paid to the defendant a further sum of 458 dollars, 50 cents, on account of said one third part of said recited contract retained and owned by the plaintiff as aforesaid ; which sums paid to the defendant, on said 2nd day of January, and on said 8th day of April, as aforesaid, the defendant received of the plaintiff, to be applied in part, and on account, of said recited contract accordingly.
    “ And the plaint i ir further states, that the defendant never did procure any title, grant or patent from the said state of Virginia of the lands in said contract or agreement mentioned, or for any part thereof, nor offer to the plaintiff or said John any title, grant or patent thereof, nor to any person or persons by them appointed, or authorized to receive the same ; said lands not having been the property of the said state of Virginia, at any time since the date of said original contract, nor since the arrival of the defendant in said state of Virginia, which was on or about the 1st day of October, 1797. And the plaintiff hath wholly failed to perform the covenant in that behalf by him made with the plaintiff and the said John Taylor, in and by the contract or agreement before recited, in consequence, of which (the defendant’s failure to perform his covenants as aforesaid) the plaintiff omitted to pay the defendant any further sums of money, on account of the said contract or agreement than those which the plaintiff hath herein before set forth.
    “ And the plaintiff further states, that in consequence of the defendant’s said failure to perform the covenants on his part to be performed in said contract or agreement, the defendant became liable to repay to the plaintiff, (whom the defendant knew to be the true and lawful owner of one third part of said contract.) the moneys which had been advanced or paid upon the plaintiff’s said one third part or share in said contract; which moneys amounted to the sum of 2958 dollars, 50 cents, which sum the defendant was in law and in equity bound to pay to the plaintiff, on or about, the 1st day ■of May, 1796.

      “ Wherefore, the plaintiff did, on or about said 1st day of May, 1796, and at divers other times since said 1st day of May, 1796, make repeated application to the defendant, and demanded of him to repay to the plaintiff said sum of 2958 dollars, 50 cents, paid and advanced to the defendant upon the plaintiff’s said part or portion of said contract as aforesaid, together with the interest of said sum ; and the defendant, on or about said 1st day of May, 1796, when thereto requested as aforesaid, neglected to repay to the plaintiff said sum of 2958 dollars, 50 cents, or any part thereof, and hath at all times since said 1st day of May, down to the present time, refused to repay to the plaintiff said sum j and the whole of said sum of 2958 dollars, 50 cents, together with the interest thereon since said first day of May, 1796, is still due from the defendant to the plaintiff.

      “ And now the plaintiff further states, that on or about the 15th day of February, 1801, the defendant, knowing the premises, and conscious of the rights accruing to the plaintiff therefrom, did apply to the defendant at said Mew-Fork, and requested the plaintiff to receive land not comprised within said contract of the defendant, in satisfaction for the money paid upon the plaintiff’s one third part of the contract above recited, with which proposition or request made by the defendant to the plaintiff on said 15th day of February, 1801, as above, the plaintiff omitted and refused to comply.
    « And the plaintiff further states, that on or about the 14th day of May, 1801, the said John Taylor being then a bankrupt, and who hath at all times since the 14th day of May 1801, been totally insolvent and unable to pay his debts, and who, at that time, owned no part of the above recited contract, having parted with all his right, title and interest therein to said Eliel Gilbert, as is above stated ; which state of bankruptcy, and the said John Taylor’s assignment to Ihe said- Eliel Gilbert, the defendant., on said 14th day of May 3801, well knew yet the premises notwithstanding, the defendant, for the purpose of defrauding the plaintiff of the sums advanced to the defendant, on the plaintiff’s part of said contract as aforesaid, and the interest due thereon, af-terwards, on or about said 14th day of May, 1801, did apply to the said John Taylor, and for the fraudulent purpose aforesaid, did procure the said John Taylor, by a writing undo-his hand, well executed, to remise, release and forever discharge the defendant of and from the contract aforesaid, and from all manner of actions, cause and causes of actions, suits, bills, bonds, writings, reckonings, sums of money and controversies whatever, from the beginning of the world to that day ; which release, executed by the said John Taylor to the defendant, on said 14th day of May, 1801, released and discharged the defendant of and from his covenant contained in said contract executed by the defendant, said John Taylor and the plaintiff, as above recited ; which said release, procured for the purpose and in the manner aforesaid, the defendant has since pleaded in bar of an action commenced in the county of Middlesex, in the plaintiff’s name and the name of said John Taylor, against the defendant, on the covenants of said original contract, as above recited, for the repayment of the above named sum of 2958 dollars, 50 cents, advanced to the defendant as aforesaid, for the benefit of the plaintiff, on bis third part of said contract retained and owned by the plaintiff as aforesaid, and for the interest due to the plaintiff thereon ; which action, commenced by the plaintiff, in his own name, and the name of the said John !laylor as aforesaid, the plaintiff, in consequence of the defendant’s said plea in bar, pleaded by the defendant as aforesaid, withdrew, and judgment was rendered up against him for the defendant’s costs in said action; and thereby the plaintiff has been unjustly defeated in his right of action on the defendant’s covenant in said original contract, above recited, in his own name and the name of the said John Taylor, and also much injured by the payment of costs in said suit, and delayed in the recovery of his just dues from the defendant; all which has happened to the plaintiff in consequence of the defendant’s fraud and collusion in procuring the said discharge or release from the said John Taylor, in the manner and for the purpose aforesaid, and in his pleading the same in bar of the plaintiff’s action as aforesaid.”
    The second count, instead of reciting the contract, referred to it as recited in the first count, alleging, thatie the plaintiff and the said John Taylor entered into a certain other contract in writing with the defendant, bearing late on the same day and year with the covenant last aforesaid, which contract was duly executed by said parties, under their hands and seals, and, in and by the same, the parties aforesaid made and en» tern! into the same covenants contained in the contract or covenant recited as aforesaid.” Tins count also averred» that the original contract was in the hands of Taylor, who refused to deliver it, tip, or to give his deposition concerning it.
    The third count alleged, that « the plaintiff and said John Taylor entered into a certain other contract in writing with the defendant, bearing date on the same day and year Iasi aforesaid, which contract was duly executed by said parties, under their hands and seals, the counterpart whereof is in the hands of the defendant, and the same was in substance the same, as that herein before recited, but did contain, among other things, a covenant or agreement, on the part of the. defendant, to repay to the plaintiff'and said John Taylor, the moneys to him by them advanced, in pursuance of said covenants, as soon as the same could conveniently be done, after the defendant should find, on his arrival in said Virginia, that the said land was located hv others, or could not. be by him obtained 5 which last mentioned contract was delivered to said Taylor, and has been lost by time and accident.”
    The fourth count averred, that i( the plaintiff and said John Taylor entered into ⅞ certain other covenant in writing with the defendant, hearing date on the 4th day of September 179j, which covenant was duly executed by said parties, under tindr hands and seals, the counterpart whereof is in the hands of the- defendant, and the same covenant was and its substantially the same as the one herein before recited, and has become lost, by time and accident.”
    The fifth count averred, that “ the plaintiff and said John Taylor entered into a certain other covenant in writing with the defendant, bearing date on the 4th day of September» i 795, which covenant was duly executed by said parties, under their hands and seals, the counterpart whereof is in the hands of tho defendant; and the same contained the several covenants and stipulations by the parlies aforesaid, al-iege.il to he contained in the covenant first aforesaid, and was in substance the same as the one herein first before recited.”
    At the close of the declaration, there was a general allegation of damages, in these words: “ All which wrongful and fraudulent, doings of the defendant are to the plaintiff ’s damage, ten thousand dollars, to recover which,”

      The defendant pleaded not guilty ; and the jury found a general verdict for the plaintiff, with 5978 dollars, 91 cents, damages. This verdict being accepted, and final judgment. rendered thereon, the defendant brought the present writ of error.

      Daggett and JV*. Smith, for the plaintiff in error,
    contended, 1.That no good cause of action was shewn, in any count of the declaration. If two men take a covenant, they are, as to that particular transaction, invested with the same powers as copartners have over their debts and credits. 18 Vin. Mr. 303. n. Matthews v. Thomas ⅜ at. 18 Vin. Mr. 304. pi. 18. In the former case between these parties, (Coleman v. Wol-cott, 4 Day 6.) the court regarded it as one in which an assignee may maintain an action against the assignor for fraudulently giving a discharge ; (4 Day 28.) but the plaintiff is not standing here as an assignee. lie claims as an ori - ginal joint covenantee with Taylor, who gave the discharge. Had Coleman and Taylor, after the assignment to Gilbert, discharged Wolcott, so as to cut off Gilbert, their assignee, the case would have been analogous, and the argument would have had some weight.
    2. That at any rate, those counts in the declaration, which neither recite the contract, nor state it according to its legal effect, are bad. Each count must contain a good cause of action, independent of the other counts. Several counts in one declaration are as distinct, as though they were in separate declarations.
    3. That, as the verdict was entered generally upon all the counts of this declaration, with entire damages, if any one of the counts is bad, it is a fatal objection, and the judgment is erroneous. Onslow v. Horne, 3 Wils. 177. 185. Grant v. Jlstle, Doug. 722. 730. 2 Wms. Sound. 171. b. n. 1 Chitt, Plead. 394. This rule is founded in good sense; for in such case, the damages may have been assessed upon the bad count or counts. In criminal cases, the reason does not apply, because the court, who inflict the punishment, can always adapt their sentence to the good counts only ; and therefore, the rule is different. 1 Chitt. Crim. Law, 249,

      Sherman and Staples, for the defendant in error,
    insisted, that the question as to the right of action, was settled in the former case ; (Coleman v. Wolcott, 4 Day, 6.) the first count of this declaration being a transcript of that. But waiving, for argument’s sake, the authority of that decision, they contended that the plaintiff had sustained an injury, by the wrongful acts of the defendant, to the full amount of the money which he might otherwise have recovered on the covenant ; and that he is entitled to redress in an action at law.
    2. That if the first count be good, the others are equally so, as the latter expressly refer to the contract as recited in the former. 1 Chitt. Plead. 397.

    3. That admitting one of the counts to be bad, this, by the established law of Connecticut, is not a ground of reversing the judgment, if there be any good count to which the verdict may be applied, The English rule has never been adopted here. Lewis v. JSTiles, 1 Root 433. Even in England, it has been regarded as an “inconvenient and ill-founded rule and its existence has been “ exceedingly lamented,” by their Ablest judges. Doug. 730. It is there confined to civil cases, and does not hold in criminal prosecutions. In holding, that where there are some counts good, and others bad, a general verdict will be supported by the good counts, our courts are supported by respectable decisions in the sister states. JSTeal v. Lewis, 2 Bay, 204. JSTeilson v. Emerson, 2 Bay, 439. Roe v. Crutchfield, 1 Hen. <$■ Munf. 361.

         See 1 Co"-:. 7h‘h 285. and $75.

        h) See 4 -0<¾/⅜ 6.

   Swift, Ch. J.

This record presents the same question which has been decided in a former suit between the same parties ; and though it is generally sufficient to say, that the same question has been settled by a prior decision of the Court, yet I have been filling to hear the same point discussed again, with a determination to change my opinion, if I did not find it supported by general principles, and analogous cases.

The authorities on which the counsel for the plaintiff in error have chiefly relied, are the following : A. was bound in a statute-staple to B. and C., and after C. released to A. all actions, accounts, and recognizances, for which B. brought a subpoena against C. and A., because A. had notice that the estate was made to the use qf B., and so a fraud in A. But because C. might have troubled A., and it is lawful for every one to aid himself, therefore A. was discharged, and the subpoena stood against C. 18 Pin. Abr. 303.

A debt, was owing to a testator, who, by his will, made B. and C. executors, and devised the debt to D. B. and C. pro-Ted the will, and released the debt. 1). brought his bill against the executors and debtor, to be relieved against the release, charging them with practice, &c. The defendants pleaded this release ; and upon arguing it, the plea was allowed, and the bill dismissed. 18 Fin. Mr. 304.

There isa material distinction between those cases, and the present. Here was no pretence or allegation, that the releasors were insolvent: there wras, then, a clear and effectual remedy against them, and there was no necessity of calling on the releasees, who had been legally exonerated from the debt. But the ground of the claim in this case, is the insolvency of Taylor, a fact well known to Wolcott, when he received the release. The cases in Finer, then, arc'not ad idem.

It is contended by the plaintiff in error, that in the present case, there were two joint covenantees, who had a right to release the covenant in law and equity ; that Taylor could prevent Coleman from putting the covenant in suit, or withdraw the suit y that Wolcott, by the terms of the contract with Coleman, could pay the whole demand to Taylor; and that a man could not commit a fraud in fulfilling a contract according to the terms agreed to by the party himself: that if Taylor had refused to suffer Coleman to make use of his name, he could have had no remedy in law or equity ; and as Taylor had such an entire controul over the covenant, it was not an injury to Coleman to take a release from him, because it released no right which Coleman could ever have made available in law or equity. But I should question the correctness of this doctrine. It appears, that Taylor had assigned his whole claim to Gilbert, and was a bankrupt; which facts were known to Wolcott. Under these circumstances, if Taylor had not released the covenant, and had persisted in his refusal to permit Coleman to make use of his name to recover the demand out of Wolcott, and Wolcott had refused to pay it, Coleman could have applied to a court of equity, and have obtained relief against Wolcott, on the ground that he had a just and lawful claim, without any rem - edy at law. For it is a part of the peculiar jurisdiction of a court of equity to furnish relief where there is a law ful claim, and no lawful remedy. Milford, 105. And in this case, it is perfectly clear, that Coleman had a just and lawful claim against Wolcott, which he could not enforce at law, by reason of the. fraudulent conduct of Taylor. He could, then, have applied to a court of equity, and have obtained relief, bad not Wolcott procured the release. Here, then, was a violation of a right, that could have been made effectual, it must, then, be an actionable injury.

But let this point be as it may, the case, of Bulkley v. Storer, in error, 2 Day, 531. is a direct authority to support this action. In that case, Storer had given a deed of land to Bontecou, on his parol agreement to reconve.y on payment of the money for which it was pledged. Storer had no right which he could enforce in law or equity : he relied solely on the honour of Bontecou: and the court decided, the obtaining of a deed, by the defendants, from Bontecouy by fraud, by which he was prevented from fulfilling his agreement, w as an injury for which an action could be sustained. In this case, GWmfm bad a claim,founded in justice,on Wolcott,for a certain sum, by virtue of a covenant made jointly with hltti and Taylor. Though he could not prosecute it at law, without the consent of Taylor, and joining him in the suit; yet by his consent, he could have done it. If Wolcott had not interfered, it can never be know n hut Taylor would have permitted him to pursue his remedy on the covenant, in a joint action. It is altogether probable he would have done it; at least, there was a possibility he would have done it : that possibility was defeated by the release. Though Coleman could not have enforced his right, by a suit in law or equity, neither could Storer; yet both had a claim equally founded in justice, which might possibly have been realized : if it was an actionable injury to defeat one, it was the other. In the present case, Taylor did permit Coleman to bring a suit on the covenant in their joint names, and never controuled it. The action was defeated by Wolcott's pleading the release in bar. This makes it evident, that the right of Coleman was not destroyed by the refusal of Taylor 1o permit him to use his name in a suit on the joint covenant, but by the act of Wolcott in procuring and pleading the release.

The case, also, of an assigned note not negotiable, is, in all respects, analogous. The promissor has a legal right to pay the money to the assignor, and his release is valid : yet in truth and justice, the money belongs to the assignee, and if the promisor, after notice of the assignment, and the bankruptcy of tiic assignor, pays the money to him, he does an act by which he, defrauds the assignee of a just, debt : and though he may have a legal right to make such payment, and the note becomes thereby discharged, yet equity, on the ground that it is wrong to exercise a legal power to defeat a just claim, has interposed, and compelled him to pay it to the assignee j and this principle was afterwards recognized at law. The wrong consists in knowingly paying to one man, money belonging to another, by which he is subjected to the loss of it. Ami the law, on the ground that for every wrong there is a remedy, gives a right of action.

So in this case, it appears from the facts found by the jury, that Wolcott knew the money due on the covenant belonged to Coleman, and that Taylor had assigned all his part. He also knew, that by paying it to Taylor, Coleman would lose the whole, as Taylor was a bankrupt. Now, in such case, nothing can be clearer than this, that it was the duty of Wolcott to pay this money to Coleman ; that it was right, and just, and proper, that he should do it: that it was wrong to pay it to Taylor, or to take his release without paying it; because it prevented Coleman from receiving a just debt. Though he may be said to have a legal right to pay it to him, yet in foro conscientice it could no more be justified than in the case of an assigned note. All the difference is, that Coleman was joint covenantee, and not assignee; but after Taylor's assignment of all his share, the remaining part was, in equity, the sole property of Coleman, as much as a note becomes the equitable property of the assignee by assignment. There cannot, therefore, in point of principle, be the shadow of a difference between the two cases.

There is, then, no new principle established in this case. It is only applying a principle previously established, in other cases, on mature and deliberate consideration.

As to the other question, it may be remarked, that though in England the rule has prevailed, that where there are several counts in a declaration, and a general verdict is found, if any of the counts are bad, the verdict shall be set aside, because it cannot be known, that the damages were not assessed on the bad counts ; yet in this state the practice has been different; and it lias ever been considered to be the rule, that if any of the counts are good, it shall he presumed the damages were assessed on those counts, and the verdict shall stand» The most eminent jurists in England have lamented that the rule was ever established títere ", as verdicts have often been set aside upon mere technical objections. As we have experienced no inconvenience from our practice, it would be strange for us to alter it, and borrow a rule from a country where its existence has been regretted. In a case,, where there are good and bad counts in a declaration, if the defendant wishes to question the sufficiency of any of them, verdicts can be taken on each count separately, which will give him an opportunity : and unless such reason should exist, it will be found most convenient, in practice, to allow the verdict to be given, generally, on all the counts, where they are for the same thing.

I am of opinion that the judgment of the superior court be affirmed.

In this opinion the other Judges severally concurred, except Goddard, Hosmer and Gouxd, Js. who gave no opinion, having been concerned as counsel in the cause.

J udgment affirmed.


source: Caselaw Access Project

author: Swimc» Ch. J.

license: Public Domain

text:
    Hollister against White and others :
    the name-oS A suit for the maintenance of a bastard child, taken up and pursued under the statute, (tit.22.3. 3.) on the mother’s failure to prosecute a suit she has commenced, must be in ' the town liable to support the child, by the select-men, as the agents of that town, and not in the names of the persons, who are, at the time, select-men.
    A suit on a recognizance, taken, in the course of such a proceeding, to the adverse party, on the complaint of the mother, before her failure to prosecute, must be brought in the same manner.
    in errors.
    THIS was a scire-facias on a recognizance, entered into by Hollister, on a complaint exhibited against him, by Jinn Goffe, the mother of a bastard child, in a prosecution under our statute of bastardy. (Tit. 22.) The recognizance ivas taken to “ the adverse party $” and the condition was, “ that said Hollister should make his appearance before the next county court to be holden at Middletown, within and for the county of Middlesex, on the fourth Tuesday of September, 1815, and make answer to said complaint ; and should abide the doings of said county court thereon.” Jinn Goffe duly

      Hartford,
    November, 1817.
    cutered her complaint in the docket of the county conrt, bat failing to prosecute her suit, lianiel White, David Clark, Simeon Young, John Stewart, and Samuel Fenfleld, selectmen of the town of Chathain where the child was horn, took up and pursued the suit thus begun. Hollister was found and adjudged to be the father of the child, and a decree was passed against him for its support. He failed to comply with this decree, and his recognizance became forfeited.
    This scire-facias was brought in the names of the select~ men above mentioned; and came, by appeal, to the superior court, July term 1816, and was thence continued to the term in December following; when the defendant pleaded in abatement, that since the last continuance, the term of time for which the plaintiffs were appointed select-men, had enpired, and that the town had appointed five other persons to the same office, who had accepted of their appointments respect~ ively. This plea being demurred to, the court adjudged it to be insufficient, and ordered the defendant to answer over. nbc defendant tlieii prayed oyer of the record and proceell-ings of the county court, and demurred to the declaration. The court adjudged the declaration to be sufficient, and rendered final judgment in favour of the plaintiffs, for the amount of the recognizance and costs. The defendant thereupon brought the present writ of error, assigning for error, that the superior court ought to have adjudged his plea in abatement sufficient, and the plaintiffs' declaration insufficient.
    T. S. Wil~liams and C. Whittelseu, for the plaintiff in error,
    contended, among other Points which it has become unnecessary to notice, 1. That the bond being taken to the then "adverse party, viz. .~nm Goffe, no suit can be sustained upon it in the names of the select-men~ The sciie-facias should he in the name of the nominal party, viz. .dnn Gaffe, or the party in interest, viz, the town of Chatham. I Root 440.441. The cognizee may have a scirc-facias, (hough his interest be terminated, and he has heroine a mere trustee.
    3. That if a right of action vested in the individuals who entered and prosecuted as select-men» it could not be transmitted to (heir successors. The select-men of a town are not a corporation.

      Staples, for the defendants in error,
    contended, that the suit could not betaken up and prosecuted, by the select-men, in the name of Jinn Gaffe ; for if it could, it would be in her power to controul the suit, which would defeat the sole object of the provision in question. Nor is there any intimation in the statute, that the suit is to be prosecuted by the town. The statute says, that the select-men may take up and pursue the suit; and no power is given to them to do this, except in their own names. The recognizance being taken to the adverse party, the select-men become such party, by force of the statute. By the term “ select-men” must be meant the select-men for the time being. Bailey ⅝ at. v. Lewis, 3 Day 450. and Pierce Sf al. v. Kellogg, 3 Day 455. n. were cited.

       The provision of the statute conferring the power in question, is as follows "That the select-men of any town interested in the support of such bastard child, (where sufficient security shall not be offered to save said town from all charge and expense for the support of such child or children) ~nd the woman omits to bring forward her suit to recover maintenance, may bring forward a suit, in behalf of such town, against him who shall be accused of begetting such child; and may also take up and pursue any suit begun by the moth. er of such child, for maintenance thereof, in case she shall fail to prosecute the same to final judgment." flsok 1. tit. 22. a.

   Swimc» Ch. J.

I am of opinion, that the select-men of Chatham cannot maintain an action on the bond in question. If the select-men for the time being liad a right to enter and prosecute the action, then the bond previously given to the woman would have enured to their benefit; they must have prosecuted the suit, and brought scire-fucias on the bond : for there is nothing in the law to warrant the idea, that the parties to the action are to be changed as often as the selectmen are changed ; or that a set of select-men different from those who entered and prosecuted the suit, can bring scire-facias on the bond.

But I apprehend, that the select-men of a town can never bring a suit on such bond. It is a reasonable construction of the statute to say, when a suit is brought for the maintenance of a bastard child, because the mother does not prosecute at all, or where one is taken up when the mother fails to prosecute a suit she has commenced, that it must be done in the name of the town where the child would he chargeable, by the select-men, as their agents, and not in (he name of the select-men only ; for it is the town that has an interest in the prosecution ; and the statute, by authorizing the select-men to bring forward or prosecute such suit in behalf of the town, constitutes them agents for that purpose, anil the suit must, of course, be in the name of the town; and here would be a permanent party, not changeable like the select-men of a town. If the suit must be in the name of the town, and the selectmen cannot enter or prosecute in their name, it follows necessarily, that they cannot bring scire-facias on the bond previously given to the mother of the bastard child.

I am of opinion that the judgment of the superior court be reversed.

In this opinion the other Judges severally concurred, except Goran, J., who did not hear the arguments of counsel, and, of course, gave no opinion.

J udgment reversed.


author: Swiet, Ch. J. Hosmer, ,T.

text:
    Hutchinson against Hosmer.
    THIS was an action qui tam, to recover the penalty, prescribed by the statute, for taking excessive usury. The usury was alleged to have been taken of Thomas Rich, for the loan of 850 dollars for one year, secured by a note, dated the 2d of October, 1811, for 950 dollars, and the lawful interest.
    The cause was tried at Windham, September term, 181?, before Trumbull, Brainard and Hosmer, Js.
    in an action ry on a loan íars^ecuri by a note of 950 dollars, dated Oc<o-plaintiff offered to prove, that mMarch, 1813, the plaintiff agreed with the defendant to pay, and afterwards did pay, unlawful interest on a balance at that time due on said note : Held, that such evidence was irrelevant and inadmissible.
    The defendant in an action qui tam for taking usury, having placed his defence on the | ground that the sum received by him beyond the lawful interest was a compensation for time, j trouble and expense in obtaining the money from certain banks and running his notes, offer- I ed in evidence sundry notes signed by him, payable at the banks specified, corresponding ml. date and amount with the statement, which, after being discounted at such banks, had been j duly paid by the defendant, and were respectively endorsed “ Paid at the bank Held, that / these notes were admissible, as they conduced to prove the fact on which the defence rested/ To take a compensation exceeding the lawful rate of interest, for obtaining money at a bank, on one’s own security, for the use of another, is not usury.
    If such compensation be unreasonable and extravagant, though it will not necessarily contaminate the contract with usury, yet it may furnish evidence of an intent, in this way, to cover an usurious loan ; and whether the transaction is, in its nature and design, a compensation for time, trouble and expense, or a cover for usury, is a question of fact to be submitted to the jury.

      Hartford,
    November, 1817.

    On the trial, the plaintiff claimed, tbat the sum of 850 dollars only was loaned by the defendant to Rich, and that the note of 950 dollars, taken by the defendant, was made up of that sum, and 100 dollars for the use and forbearance of the money loaned, which, as the note carried interest from its date, was so much more than the lawful interest. The defendant admitted, that 100 dollars was included in the note beyond the sum actually loaned, but insisted, that it was not reserved for the use and forbearance of the money loaned, but as a compensation for the defendant’s time, trouble and expense in procuring it from the banks at JYew-London, and in running the notes given for that purpose.
    To prove the statement made by the plaintiff, he read in evidence Rich9» deposition, which was in substance, as follows : That he, (Rich,) on or about the 1st of September, 1811, being pressed for money to pay for a farm which he had purchased, applied to the defendant, made known to him liis necessities, and requested of him a loan of money $ that the defendant replied, that he had not any money to loan, and could not procure it, unless he went to the banks, which would be attended with great trouble and expense; that Rich then desired the defendant to state upon what terms he (the defendant) would procure and loan to him (Rich) the sum of 850 dollars, for the term of one year; that the defendant said, that if Rich would procure him a good man’s note, for 950 dollars, payable in one year, with interest from its date, he would give Rich for it, 850 dollars, in case he could obtain it from the banks j that in compliance with this proposition, Rich met the defendant, at his dwelling-house, on the 2d of October, 1811, accompanied by Sylvester Manly ; that Rich then and there sold and delivered to the defendant, Manly’s note for 950 dollars, dated the 2d of October, 1811, payable in one year, and on interest from the date, which Rich had obtained from Manly, by giving him his own note, for the same amount, dated, and made payable, at the same time; and that the defendant, for this note given by Manly, paid Rich 850 dollars $ that Manly then delivered to the defendant Rich’s note, and took up his own note, and immediately afterwards, Rich took up his note to Manly in the defendant’s hands, and gave a new note payable to the defendant, of the same tenour, secured by mortgage of real estate; and that, on the 1st of April, 1813, Rich took up the last mentioned note, and, for a balance claimed, gave the defendant a new note for 150 dollars, payable in four years, with interest annually, the amount of which, except thirty dollars, be paid to the defendant o\i the 1st of April, 181".
    At the close of the deposition, the counsel for the plaintiff proposed to the deponent the following question : “ Did you, or did you not, in compliance with the defendant’s demand, agree to pay him, on or about the 10th of March, 1813, the same rate of interest on the balance due on your note of 950 dollars, from the 2d of October, 1812, to said lOth of March, 1813, as 100 dollars bears to 850 dollars, for one year; and have you not since actually paid the same l” To which the deponent replied : “ It is my impression, that I did pay him, as stated in the above question, in consideration of the defendant’s trouble and expense at the banks.” To the admission of this question and answer, the defendant objected, on the ground, that they were irrelevant to the issue, as they had no reference to the contract alleged in the declaration, but to one made on the 1st of April, 1813, in relation to a note of 150 dollars. The court decided, that such question and answer were not admissible testimony, and ordered them t® he erased from the deposition $ which was done accordingly.
    In the progress of the trial, several witnesses produced by the plaintiff, testified, that the defendant had said, that he obtained the money, viz. 850 dollars, for Rich, from the banks, and that he was obliged to take out double that sum, to meet the instalments on his notes, and, in fact, had notes discounted for that purpose, to the amount of 1700 dollars. The defendant, thereupon, offered in evidence sundry uotcs, signed by him, which were discounted at the banks in New-London, and by him paid. Three of them were dated in September, 1811, amounting to 1700 dollars, and were endorsed, “ Paid at the bank.” Two others were dated in November, 1811, and amounted to 1400 dollars. To the admission of these notes in evidence, the plaintiff objected ; but the defendant insisted, that they were- admissible to shew that he actually did obtain the money from the banks. The court admitted them, and they were read to the jury.
    In committing the cause to the jury, the court instructed them as follows : “ It is agreed, that 100 dollars was contained in the original note, above the sum of 850 dollars,, actually loaned. If you shall find, that this sum of. 100 dollars, was contained and reserved for the loan and forbearance of the sum of 850 dollars, that contract was clearly usurious. jf ⅛ wa8 contained and reserved bona fide, a» a compensation to the defendant, for his time, trouble and ex cuse, in procuring thc:money fr-.nn the banks, on his own securitj, for the benefit of the said Rich, and running his own notes for that ° purpose, then this contract was not usurious, if the compensation was unreasonable and extravagant, it dops not follow, of necessity, that this contaminated the contract with usury : but a compensation plainly unreasonable and extravagant, may furnish evidence of an intent, in this way, to cover an usurious loan. In this light, it is proper for you to attend to the transaction, and deduce from it such inferences as you are of opinion it may warrant.
    “ But if you should be of opinion, that the original contract was usurious, this alone will not warrant you to find the defendant guilty. This offence consists in receiving actual payment of a sum of money, over and above the rate of interest at six per cent., for the forbearance of the sunt loaned for the term of a year.
    “ With these directions, you will take the case into consideration ; and if you shall be of opinion that the original contract was usurious, and that the defendant has, in fact, within the term of one year before the commencement of this action, received in payment any sum, either in whole, or in part, which was in that contract usuriously reserved, and contained, you will find that the defendant is guilty, and find for the plaintiff to recover of him the sum of 850 dollars, being the amount actually loaned, one moiety to his own use, and the other to the use of the treasurer of this state. But if you shall be of opinion from the evidence, that the original contract was not usurious ; or if usurious, that no part of the sum usuriously reserved and contained in said note of 950 dollars, has been actually received in payment, by the defendant | in either case, you will find the defendant not guilty.”

    The jury found a verdict for the defendant; and the plaintiff moved for a new trial, on the ground, that the decisions of the court, upon the interlocutory questions, and the charge to the jury, were incorrect.- This motion was reserved for the consideration and advice of the nine Judges.

      Staples, in support of the motion.

      E. Huntington and TP. Perkins, contra.

        Tit. 1?0.

   Swiet, Ch. J.

I am of opinion, that the court properly excluded the testimony offered by the plaintiff, to prove that the defendant had taken unlawful interest upon a contract not stated in the declaration ; for if proved, the plaintiff could not be entitled to recover upon it, and the jury could neft infer from the fact that the defendant had taken usury on one contract, that he had taken it on another and different contract®

In regard to the notes offered in evidence by the defendant, it appears that he had placed his defence on the ground that the extra sum received by him was a compensation for time and expense in obtaining the money from the banks, and''] running the notes. These notes having been discounted at: the bank, about the time of the transaction, they were properly admitted in evidence, because they conduced to prove the fact on which the defendant rested his defence.

It has been insisted on, by the counsel for the plaintiff, that the court, upon the evidence presented by the motion, ought to have charged the jury, that if they believed it to be true, they must find for the plaintiff; because the evidence was sufficient to prove the transaction to be usurious. But it does not appear, that the whole evidence is brought up before us. Nothing more is stated, than what was necessary to raise the questions respecting the admission or rejection of the testimony.

The court correctly charged the jury, that a compensation for obtaining a loan at a bank, and running the notes, would not make the contract usurious, unless it was so unreasonable and extravagant as to shew it to he a colour for usury, in order to evade the statute; and submitted the questions of fact to the jury. And it does not appear from the facts before us, that the court could, with propriety, have charged the jury on any other point of law.

I am of opinion that a new trial ought not to he granted.

Tetimbuii, Edmond, Smith, Brainard, Baldwin and Goddard, Js. were of the same opinion.

Hosmer, ,T.

This action is founded on a contract, made on the 2d of October, 1811, for the loan of 850 dollars, payable in one year, with interest, for which a promissory note for 950 dollars was given, comprising, as it is said, 100 dollars, for usury. The question ami answer expunged from the deposition of Thomas Rich, referred exclusively to a note of hand., dated the 1st of April, 1813, promising to pay ,50 dollars, in four years. It is now objected, that this part of the deposition should have been committed to the jury. For this, no possible reason can be assigned. Let it be admitted, that in this latter note there was an usurious reservation. What relation does that bear to the supposed usurious contract, made two years before, on which alone the plaintiff ’s action is founded l The contract, in reference to which the proof offered was repelled, varies from the one stated in the declaration, in respect of the time of its inception, and of its becoming due j of the duration of the loan; the consideration of the agreement; and the sum stipulated to be paid. Either of these particulars constitutes a material diversity from the contract declared on, which the plaintiff was bound to prove precisely as he has laid. Wilmot v. Munson, 4 Day 117. Carlisle v. Treats, Cowp. 671. Tate v. Wettings, 3 Term, Rep. 531. Smith v. Brush, 8 Johns. Rep. 84. Swift’s Ev. 159. 160. Thill. Ev. 159. Besides, the penalty of the statute being the full value of the goods and moneys, or other things lent,” decisively shews, that the enquiry concerning an usurious reservation on 150 dollars, cannot be relevant, when the suit is founded on a loan of 850 dollars.

The defendant claimed, that the sum included in the promissory note of 1811, beyond simple interest, was a compensation agreed on for his expenses and services in procuring the money. The notes discounted at the Union and Meto-London banks were admitted in evidence, to substantiate the statement. In my judgment, they were legally admissible. It was competent for the defendant to prove, that lie acted bona fide as a broker, in the procurement of the money delivered to Thomas Rich. If this were true, and not a pretence, he had right to a commission for his services ; and tliis could not taint the transaction with usury, however unreasonable the compensation may have been, if it were not a cover for an usurious reservation. Shep. Touch. 61. Dagnail v. Wigley & al. 11 East 43.

The cause was committed to the jury, with observations adapted to awaken their vigilance on the enquiry, whether the sum included in the note was for the forbearance of money loaned, or for services as a broker. They unquestionably found the latter to be the fact: and this authorized a verdict for the defendant.

GoxriiU, J. concurred in the opinion delivered by the Chief Justice, without making any additional remarks.

New trial not to be granted.


text:
    Chapman against Chapman.
    THIS was an action of trespass quarc clausum fregit, The cause was tried at Middletown, July term, I-817, before Edmond, Smith and Baldwin, Js.
    On the trial, the title to the land on which the trespass was alleged to have been committed, was the principal subject of controversy. The plaintiff claimed, that he owned the land, by a regular transmission of title to him from one Nicholas Ackley. To shew that the title of Ackley became vested in one Mary Williams, under whom the plaintiff claimed, he offered in evidence the deposition of Crippin Hurd; which was, in substance, as follows : “ I was connected with the Williams family ; my mother’s husband, before she married my father, being John Williams, who was the brother of Charles Williams. Being thus connected with the Williams family, and a good understanding subsisting between that family and ours, I have very often heard my connexions, and other people, speak of the fact, that Lydia Ackley inherited the right of Nicholas Ackley in the common and undivided lands in TIaddam, and that she was his relative : but what relath e, whether the daughter or niece, I cannot say. Lydia Ackley married Thomas Robinson, by whom she had a daughter, named Mary Robinson, who married the above mentioned Charles Williams, and was the sole heir of hér parents.” To the admission of this deposition, the defendant objected : but the court overruled the objection, and it was read in evidence.
    The plaintiff having obtained a verdict, the defendant moved for a new trial, on the ground that the court erred in their decision upon the question of evidence. This motion was reserved in the usual manner.
    Hearsay evi-denceis admissible to prove relationship, only when it comes from a deceased relative, or member of the family to which it relates, made under such circumstances as to preclude the supposition ofinterest or bias; and such relative or member must be named by the witness.
    To render hearsay evidence available to prove a title by inheritance, it is not sufficient to shew a gen» eral declaration that the person claimed to be heir inherited the estate in question, and was a relative of the ancestor, but the particular relation must be pointed out, and it must be such as to make that person heir as to such estate.

      Hartford,

    November, 1817.

      Sherman and C. Whiilelseij, it» support of the motion,
    eon-tended, that the deposition of Crippin Hurd was inadmissible, because it was not, in its nature, legal evidence ; and because the facts deposed, if proved by any evidence, were irrelevant.

    1. The nature of the evidence in question, was hearsay ; and it, was received on the trial, under the established exception to the general rule, which admits hearsay on questions of pedigree. But to bring a case within that exception, it is necessary, first, that the declarations come from a member of the family, whose pedigree is sought to be proved j secondly, that the person whose declarations are proved, be named, or otherwise distinctly pointed out; thirdly, that such person be dead; and fourthly, that the evidence establish a specific relationship. Phill. Evid. 175. Towles v* Young, 13 Ves, jun. 146,7. Whitelocke v. Baker, 13 Ves. jun. 514. The evidence in question wants all these requisites.
    2. That the evidence was irrelevant, as it did not go to prove a title in Lydia Jlckley to the locus in quo.

      Staples, contra,
    contended, that tradition, or the declarations of any persons, who, from their situation, might be supposed to know the truth, may be proved on questions of pedigree. He referred to Doe v. Griffin, 15 East, 293. Goodright v. Moss, Cowp. 594. Jackson v. Cooley, 8 Johns. Sep. 131.
   Swift, Ch. J.

It is a general principle in the law of evidence, that hearsay from a person not a party to the suit, is not admissible ; because such person was not under oath, and the opposite party had no opportunity to cross-examine. But in ancient transactions, where no living witnesses can be bad, it has become necessary to adopt a different rule ; and in such cases, it has been decided, that the declarations, memoranda, or entries made in writing, with regard to any facts, by persons in a situation to know the truth, and under no bias to misrepresent, shall be admitted as evidence of such facts j for this is the best evidence the nature of the case will admit ofand is, therefore, admissible from necessity.

The declarations of the deceased members of a family, or those who have lived in the family, and may, from their con-nexion with it, be supposed to know the state of it, áre ad mis-sAIb evidence to prove relationship j as who was a person’s father, or grand-father, w hom he married, or how many children lie had, or when he was married, or the birth of a child, or the like ; for it cannot, in many cases, reasonably be presumed, that better evidence can be obtained.

It is not, however, every statement or tradition in the family, that can be admitted in evidence. The declaration must be from persons having such a connexion with the party to whom it relates, that it is natural and likely, from their domestic habits and connexions, they arc speaking the truth, and cannot be mistaken j and when they are made for the express purpose of being given in evidence on a question of pedigree, they will not be received. If a person were to take up a biblfe, and having the idea that it was afterwards to be produced in evidence, were to w rite down, at once, the births and deaths of his children, such an entry would not be admissible.

But the declarations of a deceased member of the family are not to be admitted, unless it appears they have been made under such circumstances that the relation may be supposed to be without an interest, and without a bias. If they w ere to be made on a subject in dispute, after the commencement of a suit, or after a controversy preparatory to one, they ought not to be received in evidence, on account of the probability that they were partially drawn from the deceased, or perhaps intended by him to serve one of the contending parties.

The opinions of deceased neighbours or acquaintances of the family, are not evidence in a question of pedigree ; for they cannot be supposed to have that certain knowledge which can be relied on. It is also essential, that the relative should be deceased to make his hearsay admissible; for otherwise, he can be produced in court.

From this it appears, that the deceased relative, whose declarations are given in evidence, is to be considered as standing on the foot of a witness, and the hearsay declarations are admitted in lieu of his testimony. It is, therefore, essential, that the relative whose declarations are given in evidence, should be named, so that the court may be enabled to know whether his relationship or connexion with the family, whose pedigree is in question, was such that he may be supposed to know the truth of the declarations ; and whether he is free from any interest or bias, so that they are entitled to credit.

But in the present case, the deponent docs not name the person whose declarations lie Isas sworn to ; so that it cannot be known whether the relationship or connexion with the family was such that they could know the truth of what they said, or whether they were under a bias or interest not to speak the truth. Nor does it appear, that the persons whose declarations are sworn to, are dead. Nor does the deponent testify to a declaration, from any person, that Lydia was the daughter of Nicholas Ackley, but only that she inherited the common and undivided land of Nicholas, and was his relative. To make the evidence admissible, he should have sworn to declarations of such relationship as made her the heir of Nicholas as to the land in question ; for a general declaration by a living witness,that a certain person inherited the land of another, without being able to tell by what relationship, would be inadmissible.

In this opinion the other Judges concurred, except Braiit-4Ki) and Goran, Js., who gave no opinion ; the former being related to one of the parties, and the latter not having heard the arguments of counsel.

New trial to be granted.


text:
    Findlay and others, administrators of the estate of John Curtis deceased, against Hosmer :
    in error.
    THIS was an appeal from a decree of the court of probate for East-Haddam district, making distribution of the estate °f Curtis, represented insolvent, to his creditors.
    4 claim against the iHsolventes-tate of a deceased person, collaterally secured by mortgage, may be allowed, unconditionally, by the commissioners, as a debt against the estate, oh which the creditor will be entitled to an average; which average, when received, a court of equity will apply to reduce the amount due on the mortgage, and,-of course, to enhance the value of the equity of redemption.
    The purchase of the equity of redemption, in such case, by the mortgagee, will not extinguish his debt against the insolvent estate, so as to preclude him from an average.
    A court of probate has no power to expunge from the report of commissioners a claim allowed by them ; the only mode of relief to the party aggrieved being by review, or an ap* plication to open the commission.

      Hartford,

    November, 1817.
    Curtis, with Norton Watrous and Cornelius Shepherd,
    had purchased a tract of land of Stephen Hosmer, the appellant; and to secure payment of the purchase money, they gave him their joint promissory notes, and a mortgage of the land. Hosmer exhibited these notes to the commissioners on Curtis’ estate, as a debt against that estate. They allowed the claim, and made their report accordingly. The whole amount of debts against the estate, found due and reported by the commissioners, was 15,771 dollars, 65 cents ; of which Hosmer’s debt was 8,536 dollars, 13 cents. The effects of the deceased in the hands of the administrators, amounted to 1670 dollars, 79 cents. The judge of probate accepted the report of commissioners ; ordered certain last sickness debts, amounting to 15 dollars, 69 cents, to be paid in full; and then decreed a distribution of the residue to and among the other creditors, in proportion to their respective debts, making an average of 17 cents on the dollar, but excluded Hosmer* s name from the list of creditors, and thus deprived him of the average on his claim. Watrous and Shepherd were both living, but were unable to pay the notes ; and Hosmer had received no satisfaction of the debt, though he still held the mortgaged premises as security. After the report of the commissioners, and the acceptance of that report, the administrators, by order of the court of probate, sold the equity of redemption, subject to the mortgage, at public auction j and Hosmer, through the medium of an agent, bid it off, for 172 dollars.
    On these facts, the superior court set aside the order of distribution j whereupon the administrators brought the present writ of error.

      Terry, for the plaintiffs in error,
    contended, 1. That the commissioners on the estate of Curtis could not legally allow the notes as a debt against his estate, except upon the condition of his relinquishing his security by mortgage. Our law of distribution is founded on the broadest principles of equity. Its great object is, to place all the creditors, with (he exception of a small class, upon the same footing. But it would defeat tisis object, if a creditor, who had obtained security for his debt, might .come in and take his average share with the other creditors, and still retain his security for the balance. The rule under the English bankrupt law, which has the same equitable principle in view, is, that a eral. itor shall not bo allowed to prove his debt, unless he swears that ho has no security, or oilers to give up what he ⅛⅝& Cull. B. L. 145. 147. The Sale bankrupt law of the United Stales made no provision as to mortgages., and goods pledged j yet the creditor was always required, upon the equity of the case, to give up his security, before lie. could receive a dividend.
    2. That admitting that the commissioners did right in allowing the claim unconditionally ; yet Hosmer’s purchase of the equity of redemption, after the return and acceptance of the report, gave him an absolute title to the land, and extinguished the debt for which it was pledged. The purchase of an equity of redemption, by the mortgagee, is tantamount to a foreclosure, and more ; for the subsequent payment of the money, though it would open a foreclosure, will not direst a purchaser of his title. When a mortgagor sells his equity of redemption to the mortgagee, he precludes himself, absolutely, from taking benefit of it afterwards. It appearing, then, to the judge of probate, that this debt was extinguished, it was no longer a proper subject of average, and it was correctly expunged from the list.

      T. S. Williams, for the defendant in error,
    as to the first point, relied upon the undoubted principle of law, that a creditor may pursue all his remedies concurrently, until he obtains satisfaction. Mosmer was a creditor of the deceased: his debt was secured by the notes of the deceased, and a mortgage. It would be a strange anomaly, to require him to give up one security, in order to render the other available. It is not the object of the statute of distribution to take away vested rights. The argument, urged on the other side, from the English bankrupt law, is unfortunate : for the statute 21 Jac. 1. c. 19. e. 9. (2 Cay’s Slat. 591.) expressly provides, that creditors having security shall, notwithstanding, receive only a rateable part of their just debts with the other creditors ; whereas our statute of distribution contains no such provision j the fair and obvious inference from which is, that it ought to receive a different construction.
    2. That the purchase of the equity of redemption, admitting it to stand on the same ground as though it had been made by Mosmer himself, without the intervention of a third person, did not satisfy or, extinguish his debt. It clearly is ■not an extinguishment, by the terms of the contract. Is it by mere operation of law ? No authority has been produced to shew that it is. Does any principle require it to be so considered ? The case is not stronger than that of a foreclosure : but a foreclosure is never opened, except upon payment of all that is due. It is done in chancery on the idea of effecting complete justice, 1 Eg. C'a. Mr. 317. 1 Bro. Ch. 12 7. 1 Ves.jr. 434. 2 Pow. Mart. 1077, 8. In the present case, Hosmer cannot get more than his just debt : there is, therefore, no ground for chancery to interfere.
    3. That if the administrators were dissatisfied with the report of the commissioners, they ought to have applied for a review, pursuant to the statute, tit. 61. ch. 2.; that being the only mode in which the doings of the commissioners can be contested.
   Swift, Ch. J.

A mortgagee has a right to pursue all his remedies till he has obtained satisfaction of his debt; but it will never be permitted that he should obtain more than his debt. The notes collaterally secured by the mortgage, were a proper claim against the estate*; and the commissioners wero bound to allow them as a debt. When the estate of the deceased insolvent debtor is sold, the equity of redemption must be sold ; and in ascertaining the value, the amount of the mortgage money is to be considered, deducting from it the probable average that the insolvent estate will pay. If the land, then, should not be worth more than the money due on the mortgage, the equity is of no value, and the mortgagee may obtain less than his debt. If the land be worth more, then the purchaser will give a price accordingly*. On a petition to redeem, I apprehend that a court of equity would consider the average, as a payment to apply on the mortgage; but, at any rate, if the mortgagee should refuse to receive it, and the court should not think they could apply it to the mortgage debt, then the purchaser, by an application to a court of equity, could avail himself of the benefit of the average.

The mortgagee foay as well purchase the equity of redemption as any other person ; and it may often be a convenient mode of extinguishing the right; and though it is true, as a general proposition, that where the mortgagee purchases of the mortgagor the equity of redemption, it will operate as a release of his debt 5 yet this is because a presumption arises from the nature of the transaction, that such was the intention of the parties $ for, in such case, it will be supposed the mortgagee will give only the value of the land beyond the debt j yet in the present ease, the presumption is altogether different, The mortgagee, if he purchases, must consider the mortgage debt to be only what remains after a deduction of the average to which he becomes entitled by a judgment of the court of probate. He then bids upon a calculation that the original mortgage will be discharged ; but that he is entitled to the average allowed on his debt. There can, then, be no presumption, that he intended to waive or release his claim to it | of course, such a purchase of the equity of redemption by the mortgagee will not vacate his claim to the average due from the insolvent estate.

Further, it may be remarked, that the court of probate has no power to expunge the claim of a creditor from the report of commissioners. A court of probate has no author ity, in the case of insolvent estates, to admit or reject the claims of creditors, only ift the course of an appeal. It would be strange, if a court of probate, in a summary man ncr, upon an ex parte hearing, could strike out the claim of a creditor. He hits no power but to strike the average upon the debts found by the commissioners, according to the amount of the estate. If any creditor has been improperly allowed a debt, or his debt has been in any way satisfied, the commission must be opened, or some other proper mode adopted to correct the error.

Í am of opinion that there is no error in the judgment complained of.

In this opinion the other Judges severally concurred.

Judgment affirmed.


text:
    The inhabitants of the town of Windsor against The inhabitants of the town of Hartford.

      Hartford,

    November, 1817.
    THIS was an action of assumpsit, fot' the support of Fanny Libbet, a pauper, and her two children.

      Fanny was bom in Hartford, in the year 1785, and was the illegitimate daughter of Sarah, a slave of Jonathan Butter, who is, and always has been, an inhabitant of Hartford. When Fanny was about three years old, Jonathan Butler gave her, and with her the right to all her services, to his sou, Frederick Butler, an inhabitant of Wethersfield. She resided in Wethersfield, until she was twenty-five years old, when the term of her service by law expired. Sarah, the mother of Fanny, was sold by her master, Jonathan Butler, in the year 1795, to Ilexekiah Chaffee, an inhabitant of Windsor, and was emancipated by him in the year 1801. lie had previously received a certificate from the civil authority and selectmen of Windsor, pursuant to the statute, tit. 150. e. 2, s. 1. but neither the certificate nor letter of emancipation were ever recorded. Soon after Fanny’s term of service expired, she left Wethersfield, and went to Windsor, where site has ever since resided. Within six months after her going to Windsor, she became chargeable to that town. Her two illegitimate children mentioned in the declaration werp horn there. Upon this statement of facts the case was reserved for the consideration and advice of the nine Judges.
    T. S. Williams and II. L. Ellsworth, for the plaintiffs,
    co_. tended, that the settlement of Fanny, tiie pauper, Mas in Hartford, that being the place of her birth, and of her mother’s settlement % that she gained no settlement by her residence in Wethersfield, during her minority ; (Salisbury v. Fairfield, 1 Boot, 131. Huntington v. Oxford, 4 Day 189. 1 Swift’s Syst. 169.) and that she had no derivative settlement uiíh her mother, on her acquiring a new settlement in Windsor. Springfield v. Wilbraham, 4 Mass. Rep. 493, 496. They also contended, that as the certificate and letter of emancipation were not recorded, as required by statute, tit. 15⅞. e. 2. s. 2. Sarah was not so emancipated as to be capable of acquiring .a settlement independently of her master, and canid not. therefore, confer a new settlement on her offspring. They finally contended, that Fanny never was a slave, having been horn after the 1st day of March 1784. Stat. tit. 150. c. 1. s. 13. If she never was a slave, her settlement is clearly in Hartford, by birth.

      The daughter of a female slave, born after the 1st of March, 1784, is not a slave, though lia. ble to be held in servitude until twenty-five years of age.
    The set-tlemeot of such child ⅛ in the place of her birth.
    Her settlement is J)ot changed by her residence in another town, with a mas. ter to whom she was assigned, until she arrived to the age of twenty-five years.
    Nor is her settlement changed, on her mother’s gaining-a new settlement, by assignment to an inhabitant of another town j a slave being incapable of communicating a derivative settlement.
    The settlement of an illegitimate child is that of its mother,

      Edwards, for the defendants,
    contended that whether Fanny, in technical strictness, was to be fermed a slave f or not, yet her condition was such that her master was as much bound to support her as one who is a slave for life ; that the entire rights of Jonathan Butler in relation to this servant, were transferred to Frederick Butler, of Wethersf eld, and consequently, all the duties of the former, one of which was to furnish support, devolved upon the latter ; that if she had not a settlement with her master, she had one with her mother in Windsor,

   Swift, Ch. J.

Fanny, the pauper in question, was the child of a slave of Jonathan Butler of Hartford, and acquired a settlement, by birth, in the town of Hartford. She was free at the age of twenty-five $ and, of course, is to be considered as a free person, and never was a slave. During her residence with Frederick Butler, she is to be considered on the footing of an apprentice, or minor, living in another town, by the consent of parents or guardians ; and did not thereby gain any settlement in Wethersfield, She never gained a settlement in Windsor, in right of her mother j for the mother being a slave could communicate no such right. She must, of course, retain her settlement in Hartford, and her two children follow the place of her settlement.

I am of opinion that the plaintiffs are entitled to recover.

In this opinion the other Judges severally concurred, except Trtjmbtjix, J., who gave no opinion, being interested in the evqnt of the suit.

Judgment to be given for plaintiffs.