author: Swot, Ch. J, Tkcmbcii, J. Smith, J. BraíwarD, J. Hosmer, ,T. Goum», J. Peters, J.

text:
    Fox against Abel and another.
    THIS was an action of assault and battery and false im-prisonraent, alleged to have been committed at Franklin, on the 29th day of December, 1816.
    „ The cause was tried at Norwich, January term 1818, before Swift, Ch. J., and Brainard and Goddard, Js.
    The defendant, Mel, was a constable of the town of Franklin; and bad in his hands for collection, a legal execution, in favour of one Palmer, against the plaintiff. The 29th of December, 1816, was Sunday. After midnight, preceding that day, and before the next succeeding day-break, Miel, with the assistance of the other defendant, levied this execution on the body of the plaintiff, and committed him to prison. The court charged the jury, that the Sabbath, or Lord’s day, extended from the next preceding, to the next succeeding midnight, embracing a period of twenty-four hours; and that service of any civil process wi< bin that period, w as void by statue. Consequently? the process in this case, was no justification to the defendants.

      The Lord’s ⅞⅛. viceofcivil process is prohibited by statute, the sotor day only'

      Hartford,
    June, 1818.
    The jury found a verdict for the plaintiff; and the de-fondants moved for a new trial, on the ground of a misdirection. The court reserved the motion.
    The case was argued elaborately, by Lanman, in support of the motion, and by Goddard, contra.
    The principal topics of argument, which they urged, and the authorities, which they cited, are adverted to, in the opinions of the Judges.

       1 Conn, Stat. tit. 140. », 12.

   Swot, Ch. J,

The question is, whether the statute, by the words « Lord’s day” means the natural, or solar day.

It is a well known rule of the common law, that a day comprises twenty-four hours, extending from midnight to midnight, including morning, evening and night, and is called the natural day. When a day is spoken of in law, it comprehends that period of time. When an act is to be done on a particular day, it may be done at any time between those hours. 2 Black. Comm. 141. And, of course, a prohibition to do an act on a particular day, must comprise the, same period. If the service of civil process should be prohibited on Monday, the prohibition would reach from midnight to midnight. Of course, when the statute declared, that if any civil process should be issued and served on the Lord’s day, it should be void, and of no effect, it must, ex vi termini, comprehend the whole twenty-four hours, unless something can be collected from the statute itself, to warrant a different construction.

It is contended, that from certain expressions in the statute, it is evident the legislature meant by the Lord’s day, a solar day, including only the time, from the rising to the setting of the sun, In the 6th section of the statute, Innkeepers are prohibited from entertaining people on Saturday night after sunset, on the Lord’s day, or on the evening following, Now, it is said, if the Lord’s day comprehends the whole rime till midnight, then the evening following cannot be the evening of the Lord's day, but of the succeeding day : but as it is manifest, the legislature meant the evening of the Lord’s day, the consequence follows, that they must have considered Ihe Lori's day to be a solar day,ami then the evening following would be the evening of the Lord’s day, and make the statute consistent. But if this reasoning be correct, there can be no evening of a natural day. For when we say the Lord’s day, or the evening following, if the evening following cannot be the evening of the Lord’s day, because it extends till midnight; then if we use the expression, the evening of the Lord’s day, it will be equally incorrect; because the Lord’s day extends till midnight. The question, then, is reduced to this point — whether any part of the natural day can, with legal propriety, be called evening ? That the expression, evening of a day, with reference to the natural day, is proper, may be proved by the authority of Lord Coke. “ Of days, some are natural, and some are artificial : the natural day consists of twenty-four hours, and comprehends the solar day and the night; and therefore, in indictments of burglary, and the like, we say, in the night of the same day.” Co. Litt. 135. Here, the subject is fully explained. Though the natural day consists of twenty-four hours j yet, as it comprehends the solar day and the night, we speak of day and night within the period of the natural day, to distinguish the different parts of the day. Hence, the propriety of the expression, the evening of a day, or, the evening following a day ; and they have both the same import in common understanding, and are used with equal propriety in reference to the solar day, and the night, as comprehended in the natural day. We make use of language appropriate to the solar day, not because we adopt it, but for the purpose of distinguishing certain portions of the natural day. This is owing to the poverty of our language, but will warrant no inference, that when the legislature used the word day, they intended a solar day.

It is further objected, that on this construction these words can have no operation ; for the Lord’s day comprehends the everting. This, however, constitutes no objection. It is nothing but a repetition ; and nothing is more common in statutes, than repeated prohibitions of the same thing, in different words. In the statute under consideration, all secular business is forbidden on the Lord’s day, or any part thereof, These last words are but a repeated prohibition, and cannot affect the construction of the statute. Yet in the case under consideration, there seems to he some colour for this prohibition. The statute had prohibited certain things to be done on Saturday niglit after sun-set, and on the Lord's day» Now, if the legislature had stopped here, it might possibly have been understood, from the words Lord's day, in connex-ion with Saturday night, that they did not mean "to extend the prohibition to Sunday evening; and to guard against the possibility of such a construction, this clause was added.

It may also be remarked, that if the legislature had intended to have prohibited secular business only within the period of the solar day, they would have made use of appropriate and definite language j and it cannot be supposed* that they would have used words proper to express the natural day, and then have left it to be inferred from a verbal criticism, that they intended the solar day. If any doubt, however, can be raised by this section, it is fully removed by another. In regulating the sailing of vessels, they are prohibited to depart from any harbour, &c., on the Lord's day, at any time between the morning light and the setting sun. This language clearly shews, that the legislature did not consider the period of time between the morning light and the setting sun to be the whole of the Lord’s day, but only a part of it. This, then, proves, that they did not in the statute mean the solar day. If the legislature, in the other parts of the statute, had, by the term Lord’s day, meant only a solar day, then there could have been no possible reason for the introduction of these expressions into this section ; for no one will believe, that they intended to restrain sailors between the morning light and sun-rise, when no other persons were restrained during that time. Indeed, it is evident if the legislature had considered the Lord’s day to be the solar day, they would never have made this restriction with Aspect to sailors, but left them on the same footing with every body else. It is, then, conclusive, that they could not have understood by the Lord’s day, the solar day. If the expression had been, between the, rising and the setting sun, then it might, with some plausibility, have been inferred, that the legislature contemplated only the Solar day, in the regulations of the statute ; and that this w as an exposition of their intent. But the extension of the prohibition to the time between the morning light and the rising sun, excludes such an inference, and demonstrates, that they never contemplated the solar day $ for there might be some reason why the prohibition should be ;-.ia\ed in favour of sailors ; but certainly none why it should be extended.

The ease of Carpenter v. Crane, 1 Root 98. has been referred to as an authority in point. Having been of manse! in that case, I am able to say the doctrine that Sunday comprehends only the solar day, was not then promulgated : it is a doctrine of a later date, and was drawn as a consequence from that decision ; which was probably owing to the imposing equity of that particular case; a circumstance, which lots often led to a deviation from principle productive of serious inconvenience in other cases. At any rate, however, a decision of the superior court, repugnant to the express provision of a statute, has never been deemed an authority binding on this Court.

I would not advise a new trial.

Tkcmbcii, J.

This is an action of trespass, charging an assault, battery and false imprisonment. Under the plea of Not guilty, the defendants rely on a justification, by the levy of an execution on the body of the plaintiff. The plaintiff alleges, that the levy was made on the Sabbath, or Lord’s day, in the morning of that day, after midnight, and before day-break; and contends, that this levy, at that time, was unlaw ful and voW.

This cause must be decided upon the true construction of Use words in our statute, which enacts, that “ if any civil process shall be issued or served on the Lord’s day, it shall be void and of no effect; and the officer who serves the same, on said day, shall pay a fine of one dollar, sixty-seven cents, and all damage that shall arise to any person thereby.”

Neither party, in this ease, denies, that the Christian Sal-bath must embrace a complete seventh part of time, viz. a whole day of twenty-four hours ; nor claims, that the question, at what time this Sabbath commences, is precisely determined in any part of the statute.

if the exact hour and minute of the natural day, on which the Subbath begins, be a matter of essential importance, we might certainly expect some explicit directions in the Scriptures. In Leviticus, xxiii. 5T. an express rule was given to the Israelites, as to the day of atonement, which was to-be observed annually, on the tenth day of tin; seventh month— ** It shall be unto you a Sabbath of rest, and ye shall afflict your souls in the ninth day of the month, at even j from eve - ning to evening shall ye celebrate your Sabbath." Rut in respect to the beginning of the weekly Subbath, no express direction is given ; and it is certain, that the Jews, in the time of our Saviour, did not begin it before the dawn of the morning. This is clear, not only from history, but from two passages in the New Testament. Matthew, xxviii. 1. — “ In the end of the Sabbath, as it began to dawn towards the first day of the week,” &c. Mark, xvi. 1, 2. — “ And when the Sabbath was past, very early in the morning, the first day of the week,” &c. These passages are accurately translated from the original Greek ; and from them it appears, that the Jewish Sabbath ended, and the first day of the week (which is now the Christian Sabbatli) commenced, at the dawn of the morning. The Jews considered the preceding evening, as the time of preparation for the Sabbath, but not as a part of the Sabbath itself.

The English appear to have always divided days into natural and artificial: but at different periods, have affixed contrary meanings to those terms. The time, from the rising to the setting of the sun, was, by ancient authors, called dies Sola-ris, and the night, dies lunaris. The solar day was termed the natural day ; and the whole twenty-four hours, consisting of the solar day and the night succeeding it, was called the artificial day. But afterware», and to the present time, the solar day was termed the artificial day, and the twenty-four hours, commencing from the rising of the sun on one day, and continued through the night succeeding, was styled the natural day. Co. Lift. 135. a. Different nations begin the day at different times. Lord Coke tells us, the Jews, Chaldeans and Babyloneans begin the day at sunrise ; the Umbri in Italy, at mid-day : the Egyptians and Romans, from midnight ; and so doth the law of England, in many cases.

Respecting the custom of holding courts, and serving legal process, on Sunday, Lord Mansfield has given the fullest history, in Ihe case of Swan v. Broome, 3 Burrow, 1595. He informs us, that the ancient Christians not only allowed all kinds of legal process on that day, but held their courts open for the trial of causes, dowm to the beginning of the sixth century ; hut that afterw ards, the practice was prohibited, by sundry ecclesiastical canons. These canons were received and adopted in England, by their kings,in the time of the sovereign» ty of the Saxons. Edward, called the Confessor, made a constitution accordingly, forbidding the bolding of courts “ on all Sabbath days, after the ninth hour, and the whole day following until Monday.” These canonsand constitutions were confirmed by William the Conqueror ; and thus, says Lord Mansfield, became part of the common law of England. Hence, the Lord’s days, dies dominici, became dies non juridifii. 2 Instit. 264. By the Mirror of Justices, quoted Co. Litt. 135. and Burrow, 1599., it appears, that courts were forbidden, at the time when that book was compiled, to hold their sessions on that day, after the rising of the sun. By the Lord’s day, in the English statutes, and the language of the elementary writers, is technically meant the solar day, commencing at sunrise : and it is certain, that no part of the preceding night was ever included in it. The prohibition against holding courts on that day, did not, however, extend to the courts of chancery, or exchequer. Comyn's Dig. tit. Temps. C. 5. And though no judicial act could be done, yet all ministerial acts, as the service of w rits and process, might lawfully be executed on Sundays. Mackally’s case, 9 Co. Rep. 66. Thus the common law stood, until by the 29th Car. 2., cap. 7. such service wras prohibited, and declared void. 1 Strange, 388.

Lord Coke tells us, (2 Inst. 264.) “ The Lord’s days, are dies nonjuridici; and this was the ancient law of England, and extended not only to legal proceedings, but to contracts.*’ He quotes a sentence from the English laws before the conquest — “ Dacus, si die dominico quicquam fuerit mercafus, re ipsa, el oris preeterea duodecim mulctator ; Jlnglusprwterea triginta solidos numerata.” By this law', whatever article should be purchased on the Lord’s day, was forfeited, and the buyer, if a Saxon, should further pay a fine of twelve orre, (a Saxon coin, of the value of about sixteen pence, sterling.) but if a Briton, of thirty shillings. So by the statute, 27 Henry 6. cap. 5. goods, exposed in fairs or markets for sale, on Sundays, were forfeited to the lords of the franchise. This statute could have effect, as to those hours only in the day, on which fairs and markets were kept open.

From these authorities it seems evident, that neither by the Scriptures, nor by the common law, was the time afer midnight and before the dawn of the morning of the Sab- hath day, over considered as included in, or constituting any part of, Sioiy time.

The statute of this state, (tit. Sabbath, sec. 2.) forbids all secular business from being done on the Lora’s day, or any part thereof. Our courts, from the earliest times, Lave accordingly adjudged all contracts, whether by parol, or in writing, made, or executed, on that day, to be void, and of no validity in law, Wight v. Geer, 1 Root 474. But they have ever held promissory notes, and other contracts, which were executed on Saturday evening, or after sunset on the evening of the Sabbath day, to be binding and valid. In Carpenter v. Crane, 1 Root 98., a promissory note executed at 2 o’clock on Sunday morning, was judged valid ; and the court decided, on demurrer, th%t it was not given and executed on the Lord’s day. In Mumford & al. v. Buel, 1 Root. 145., an arrest by execution on Saturday night, after the darkness had commenced, and a promissory note executed by the debtor to procure his release, between the hours of eleven and twelve of the same night, were both adjudged valid ; and the court decided, that it is clear the legislature mr mt by the Lord’s day, the artificial, or solar day; that although it is agreed, that the Sabbath includes the whole of the natural day of twenty-four hours, yet as mankind differ about the question, whether it includes the evening and night preceding, or the evening and night succeeding, the law meant to allow them liberty of conscience, in case they do not disturb others. The law of this state, on this point, is thus laid down, 1 Swift’s Syst. 367. “ Contracts are void, which are made on the Sabbath, or Lord’s day. From sundry adjudications, it appears to be the opinion of the courts, that the transaction of secular business is unlawful, only during the time from morning light, till evening.’5

The natural day has no fixed time of commencement,Jn which mankind in general, or the different denominations of Christians, are agreed. It is not the busines of human lawgivers to determine what is the true time ; their only object and duty, in enacting penal statutes, is, not to settle theological disputes, but to guard and protect the rights and morals, the peace and welfare, of society. The solar day is ascertained by fixed and known limits ; it is subject to no difficulties, respecting its commencement and close; and is al-wavs understood, in common parlance, by the word, day, as distinguished from evening, or night.

In 1692, a statute was passed in Massachusetts, for the better observation of the Lord's day. This act, after forbidding all persons to exercise any labour or business, use any game or sport, or travel on unnecessary journies on that day, goes on in these words : That no person, keeping any public house of entertainment, shall suffer any of the inhabitants of the respective towns where they dwell, to abide and remain in their houses, drinking, or idly spending their time, on Saturday night after the sun is set, or on the Lord’s day, or the evening following.” In this clause, the Lord’s day is expressly distinguished, as a different part of time from the Saturday night preceding, and the evening following it, and can only mean the solar day. This statute was, soon after, and certainly before the year 1698, adopted in substance, and nearly in the same words, by the legislature of Connecticut. It appears in the edition of 1702; and w as, for many years aftei’, the only statute relative to this subject. It has been kept in force in every subsequent revision. The same distinction between the Lord’s day, and the nights preceding and subsequent, is preserved ; and the clause just quoted, constitutes the fifth section of our act, for the due observation of the Sabbath. According to the rules of construction, the words, Lord’s day, must be understood in the same manner, in every part of the statute-— must exclude the Saturday and Sunday nights, and can mean only the solar day. This construction has been put upon the statute, by our courts, from the earliest period to which we can trace their decisions j particularly, on the sections, which prohibit all persons from assembling in companies, travelling on journeys, or going from their places of abode, except to attend public worship, on the Lord’s day.

I am of opinion, that a new trial should be granted.

Edmond, J. Concurred in the opinion given by the Chief Justice.

Smith, J.

The only question for consideration in this case, is, whether service of civil process before day-light on Sunday morning, is a violation of the -statute entitled “ An act for the due observance of the Sabbath, or Lord’s day.”

The section, which more especially relates to this case, Is |n the following words : “ And if any civil process be issued or served on the Lord’s day, it shall be void, and of n > effect j and the officer who shall serve the same, on said day, shall pay a line of one dollar and sixty-seven cents, and all damages that shall accrue to any person thereby.” A correct result in this case, depends on discovering what period of time is here intended by the Lord’s day.

This, in my view, does not depend on the common law of England; nor on discovering when the Jewish Sabbath began, or ended.

As little does it depend on the time of beginning or ending the Christian Sabbath, as an article of religious faith and practice.

The intention of the legislature is, in my opinion, perfectly manifest, from the statute itself ; and it is a little remarkable, that the same phraseology is adopted in the other parts of the statute, when prohibiting the great variety of acts therein mentioned. I would, then, attend to the statute, and see from thence what is the meaning of the legislature.

And I would here remark, that the same phrase must have a similar construction whenever found in the same statute.

I think, it will fully appear, that the day time only of the Christian Sabbath, or that period between the rising and setting of the sun, was intended to be comprised within the prohibitory clauses of the statute. For this we find a strong reason in the different opinions which prevail among Chris« tians as to the proper evening to be kept as a part of the Sabbath; so that neither evening could be sanctioned by law as a part of the Christian Sabbath, consistently with that spirit of toleration, which has ever characterized the people of this state. With the utmost propriety, then, in my opinion, has the legislature confined its coercive sanctions, to that period of time in which Christians generally unite. In opposition to this opinion, the court on the circuit,, decided, that by the Lard’s day is intended the whole of a common law day, beginning and ending at midnight. Which of these opinions is correct, I think, will clearly appear by a particular attention to the statute.

By the 1st section of the statute, all persons, of every description, are required carefully to apply themselves to the duties of religion and piety, during the Lord’s day. But I «an hardly imagine it could he intended, that Christians, who conscientiously keep Saturday evening as a part of the Sabbath, should also be bound, under a penalty, to devote Sabbath evening to the duties of religion and piety.

By the 2d section, all secular business is prohibited, except only works of necessity and mercy, on the Lord's day, or any part thereof. The latter words in this section were inserted, probably, to prevent any conclusion, that the prohibition might be confined to the period of divine service. But will it be contended, that this section extends to Sabbath evening, so that those Christians, who consider themselves bo..ml in conscience to abstain from all secular business on Saturday evening, shall become offenders against the laws, and be subjected to penalties, for attending to the least trille of secular business on Sabbath evening ?

The 3d section prohibits all travelling on the Lord’s day, under a penalty. But was it ever supposed, that a roan became an offender by travelling on the evening of such day ?

The 4th section provides, that no person shall go from his or her place of abode on the Lord’s day, unless to attend the public worship of (ion, or to do some work of necessity and mercy : and it is well known, that a very numerous and respectable portion of our citizens have been scrupulously exact in keeping Saturday evening, who would feel the highest repugnance at leaving their homes to visit a neighbour or friend, on any portion of time, which they suppose constitutes apart of the Christian Sabbath, but who have been in the constant habit of making and receiving visits, on Sabbath evening. The decision in this case, determines whether all such have been offenders against the laws of the state, and exposed to public justice.

In the 5th section, the intention of the legislature is still more conspicuous ; and with a small degree of attention to its contents, I cannot persuade myself, that a doubt will remain. We here find it made penal to convene and remain at public houses, drinking, or idly spending time, on Saturday night, after sun-set, or on the Lora’s day, or on the evening following. Now, after reading this section, will any one ask what period of time was intended hv the Lord’s day, in this statute ? Is it not a period altogether distinct from the evening ? If not, why add a provision for the evening ?

Again : if the phrase Í am commenting' upon necessarily denotes a period of time ending at midnight, then the cm ning following would be Monday evening, Rut no one will contend, that the legislature could intend to embrace Monday evening within the provisions of an art entitled “ An act fm the due observance of the Sabbath, or Lord’s day-;” especially. as no similar provision is made for the other evenings in the week.

This section, so full of absurdities, upon the hypothesis, which I oppose, harmonizes, most perfectly, with my own views on the subject : for while the statute leaves all denominations of Christians to the exercise of their own conscience, as to the proper evening to spend in the duties of religion and piety, and which to devote to the ordinary concerns of life, it takes special care that no noise or disturbance shall be permitted to interrupt the devotions of any.

Of the same character is the 10th section, which inflicts a penalty for disturbing any assembly of people met for the worship of God, on the Lord’s day, or any other time.

And in the 9th section, where an earlier period was intended to be embraced than had been contemplated by the other parts of the statute, we find a variation in the language and the sailing of vessels is prohibited any time after the morning light. This became necessary $ otherwise, a vessel getting out of harbour before sun-rise, might sail the whole day, without violating any law.

It has been said, that it must be highly improper to permit the arresting people immediately before and alter the rising and setting of the sun on the Sabbath. Whether this be an evil greater than that of affording protection to fraudulent debtors, I very much doubt. In England, it has been decided, that arrests may be made, in civil process, on the Sabbath, on the ground that it is a ministerial act. differing from judicial proceedings | and that it is a work of necessity, Mackally’s case, 9 Co. Rep. 66. S. C. Cro. Jac. 280. But how this may he, as a point of policy, I .shall not undertake, at present, to decide. The legislature tan make any regulations, whirl; may he deemed necessary. .Hut whatever protection may he afforded by law, to those Christians, who kc< p the evening succeeding the Lord’s day, I presume will be extéhded equally to those who keep the pmeding evening : otherwise, I should not hesitate to pronounce it partial, unequal, and unjust.

Were this opinion unsupported by any adjudged case, l should have no douht of its correctness. But as early as the year If85, this statute came under the consideration of the superior court, in the case of Carpenter v. Crane, reported in the 1st volume of Boot’s Reports, page 98. when it received the construction which I now believe the correct one. That was decided, if I mistake not, during the period when Law, Sherman and Ellsworth composed a part of the court; a period, when the decisions of that court were entitled to as high respect as they ever were at any period. It is true, the question has never been decided by this Court, until now. But this has been, because the decision in the case of Carpenter v. Crane, has been universally acquiesced in, and has governed all the cases which have come before the superior court, wherein the question has arisen.

BraíwarD, J.

The questions are, What is the Christian Sabbath ? And, What, in Connecticut, is the Sabbath ? Whether the Christian Sabbath comprehends one seventh part of time, one seventh part of a week ; and if it does, whether the Sabbath of Connecticut, is, by law, the same ?

That the Christian Sabbath consists of one seventh part of time, the religious observance of which is of moral and perpetual obligation on the consciences of all professing Christians, I think, there can be no doubt.

In six days the Lord made the heavens and the earth, and rested the seventh. On the completion of this stupendous work of Omnipotence, in six days, God blessed the seventh, and sanctified it.

In reference to time,God, to declare, by his divine command, what portion should be observed as holy, divided it into days, each consisting of an equal number of hours. On the seventh day, God rested from his work, and blessed and sanctified it.

Did this seventh day, which God blessed and sanctified, consist of the same portion of time, as each of the six preceding days, in which, according to language adapted to our comprehension, God is said to have made the heavens and the earth ?

Whoever reads and believes the concise and sublime account given by Moses of this astonishing work of creation, cannot doubt that one seventh part of time, one day in seven, containing twenty-four hours, was blessed and sanctified — a Sabbath, holy unto the Lobd.

This is expressly confirmed in the decalogue. “ Six dais shalt thou labour, but the seventh is the Sabbath of the Lord, thy God ; in it thou shalt not do any work.”

Can it be supposed, that the Aimightv, declaring his commandment from Sinai, and prescribing the same order and distribution of time, which he did in the creation, intended, that this seventh day should be wanting in measure, arid destitute of proportion ? Indeed, on this point, Exodus xxiiL 10 — 12. I think, is conclusive. “ Six years shalt thou sow thy land, &c, but the seventh thou shalt let it rest,” &c. “ Six days thou shalt do thy work ; and on the seventh, thou shalt rest.” Can there be a question, but that this seventh year was an entire year ; and this seventh day, an entire day ?

If this be the Jewish, what is the Christian Sabbath ?

On the authority of the resurrection of our Saviour, the day of the Sabbath, in the view of Christians, generally, is altered ; but the portion of time, not varied : the Christian Sabbath, in point of duration, is the same as the Jewish.

On this great and miraculous event, the resurrection of our Saviour, the seventh day was postponed, and the first substituted. The seventh day, or Jewish Sabbath, receded, and gave place to the first day, or Christian Sabbath.

To determine when the first day, or Christian Sabbath, commenced, it is necessary to determine when the seventh day, or Jewish Sabbath, closed. Settling this point,! think, settles the question ; for when the one ends, the other begins.

I think, it is apparent, that those who visited the sepulchre of our Saviour, on the morning of his resurrection, did not do it, until after the expiration of the Jewish Sabbath ; and that they calculated to visit it as soon after as they could, consistently with a due observance of the Sabbath. No mortal approached the sepulchre until after the end of the Sabbath.

From nothing I have ever read, not from the Evangelists themselves, cun I ascertain the precise time of the resurrection of our Suviuur ; and I presume it was not given for mortals to know it. “ An angel rolled away the stone from the door of the sepulchre.” From the Whole tenour of the Evangelists, although there is not a perfect coincidence, as to the time of going to the sepulchre, (nor is it necessary, for any Christian purpose, that there should be,) yet it is perfectly apparent, that those who went, had calculated to go as soon as they could, without a breach of the Sabbath. They did not go at the setting of the sun 3 nor immediately after twilight of the Jewish Sabbath ; not until after midnight; not until towards the dawning of the day.

In the end of the Sabbath, as it began to dawn toward the first day of the week, came Mary Magdalene, &c. to the sepulchre.’9
** And when the Sabbath was past, Mary Magdalene, &c. very early in the morning, the first day of the week, came unto the sepulchre.”
“ Now upon the first day of the week, very early in the morning, they came unto the sepulchre.”
« The first day of the week, came Mary Magdalene, early, while it was yet dark, unto the sepulchre.”

From a full view of the subject, I think we may fairly conclude, that, in point of quantity, and measure of time, the Jewish and Christian Sahbath are the same ; each consisting of an entire day of twenty-four hours; one seventh part of a week; that the Christian Sabbath commenced, when the Jewish Sabbath closed — at midnight.

Having examined and seen what is a Jewish, and what a Christian Sabbath ; it remains to enquirf, what is the Sabbath in Connecticut; whether it be still a Christian, or an artificial Sabbath — a day without morning or evening.

It is said, that although the Christian Sabbath, in point of duration, is morally commensurate yvith the Jewish ; yet it is not, in the same extension, legally binding in Connecticut. To this distinction, if true, I must submit; but it is a distinction I cannot subscribe to : it is a distinction, which I cannot believe our pious ancestors ever intended to make, or countenance. They intended to embrace, and did, in fact, embrace, the whole Christian Sabbath. They not only adopted, but, in legislative phraseology, enacted, the Sabbath. They passed “ An act for the due observation of the Sabbath, or Lord's day.” By this, I understand the Christian Sabbath ; that portion of time, known and acknowledged as such, by professing Christians. The language of the statute is, No person shall do any manner of secular business on the Lord's day, nor any part thereof.” « No civil process shall issue, or be served, on the Lord's day." I would ask, if a magistrate vero called on for a process, fifteen minutes before the (]aWn of the morning of the Sabbath, on what day would he date it — on %vhat day would it issue ?

There are, however, exceptions in the statute, to a strict and rigid observance of the whole time, as to some things. These are founded on the claims of necessity and mercy.

An exception proves the rule. The statute says, “ That no vessel, on the Lord’s day, between the morning light and the setting sun, shall unnecessarily depart,” Ac. That is, no vessel shall unnecessarily depart on that portion of the Lord’s day, which is between the morning light and the setting sun ; plainly declaring, that the Lord’s day comprehended more time, than ■“ between the morning light and the setting sun.”

I am aware, that the principles I have adopted, with regard to the precise time of the Sabbath, do not perfectly agree with the practice of our ancestors ; I mean, the first settlers of Connecticut, and New-England generally; but they do not vary as to quantity and portion. They, in general, commenced the observance of the Sabbath, at the setting of the sun, and continued it an entire day, with a decent regard to the evening succeeding.

On the whole, I take the Sabbath, or Lord’s day, to he, ír Connecticut, a natural day, consisting of twenty-four hours ; that the Christian Sabbath, is, by law, here recognized ; and whether the whole of the night preceding the artificial day— or only that, portion immediately succeeding midnight, is to be comprehended, as respects the present case, is immaterial.

I think the charge wras correct; and that a new7 trial ought not to be ad vised.

Hosmer, ,T.

The plaintiff was arrested on execution, a few minutes before the break of day, on Sabbath morning. He complains of this as having been an unlawful arrest. Whether it is of this description, depends, entirely, on the statute relating to the Sabbath.

It is unnecessary to discuss the question, when the Christian Sabbath actually commences. On this subject, there exists much diversity of opinion ; and this, probably, was the reason for the peculiar provision made by the act “ for tho duo observation of the SabbathAll Christians in this stale, consider the solar day, that is, from the rising to the setting of the sun, as holy time. To protect this period from violation, by amusement or secular business, was considered as most obviously proper, as it harmonizes with the sentiments of all denominations of Christians. In respect of the evening preceding the solar day, or subsequent to it, some Christians have considered the former, and others the latter, as pertaining to the Sabbath, One, for example, holds the day to commence with Saturday evening; another fixes the commencement of it at 12 o’clock at night; and others, at day-light, or the rising of the sun. In the spirit of the most liberal toleration, the legislature determined not to interfere with the opinions of any sect of Christians, but to require the observance of that part of holy time, in which they universally agreed. Accordingly, in the 5 th section of the act, alluded to, no inn-holder is permitted to suffer the inhabitants of the town in which they dwell, to remain in his house, drinking, or idly spending their time, “ on Saturday night after sun-set, or on the LortPs day, or on the evening following.” The expression, “ the Lard's day," as used in the statute, is here precisely defined. It neither includes the evening before, nor the evening after. In the 9th section, the Lord's day, for the purpose of prohibiting the navigating of vessels, commences with morning light, and extends to tiie setting sun. The words, the Lord’s day, as they were understood by the legislature, in the act made by them, include the day-light only. All the clauses of the statute, in which this expression is used, must receive a similar construction. The decisions which have repeatedly been liad, establish the opinion I have expressed. Carpenter v. Crane, 1 Root 98. Mumford & al. v. Buell, 1 Root 145.

The Court is not called on to limit the time, which the inhabitants of the state are to consider as comprising the Sabbath. Undoubtedly, whenever this period commences, it must include twenty-four hours, or one-seventh part of the week. Neither is the question here to be settled, whether a person may, consistently with a good conscience, transact secular business the evening before the Sabbath day, or the evening after. Every person must decide, on this subject, for himself. The question before us, is not, what is the duty of a Christian, but, what is the construction of a law ? The statute has defined its own most operative expression, the Lord’s dayit lias, in compliance with the conscientious belief of individuals, left them to observe the evening before, or after the Lord’s day, according to the operation of their own minds ; and lias placed them under a prohibition, only in respect of that portion of time, in which they all agree. It is our business, j us dicerc, non dare. I have no hesitation in saying, that the act complained of, by the plaintiff, is not in contravention of law; and that the action brought cannot be sustained.

Goum», J.

With respect to the question, at what hour, or season, of the natural day, the 'Sabbath, or holy time, commences, different rules are adopted, by Christians of different persuasions, even in one and the same country, or state — as is the case here. The question, which has grown out of these discordant rules, has occasioned, as is well known, much clashing of opinion, and no small controversy. But this question, considered as involving matters of conscience, or as a froblem in theology, is, in my judgment, entirely unconnected with the construction of the statute for the observance of the Sabbath, and therefore entirely foreign to the subject before us.

The 12th section of the act, (the section upon which the present question immediately arises), provides, that “ if any civil process shall be issued, or served, on the Lord’s day ; it shall be void, and of no effect.” Neither this provision, nor any other, contained in the statute, expressly points out, at what period of the natural day, that portion of time, denominated she “ Lord's day,” shall commence : but it is very manifest, I think, upon various grounds, that, by the term (i Lord’s day,” as used in this section, and several others of the same statute, is meant, not that portion of time, which constitutes anyone natural, or mean solar da#, as distinguished from another ; but that part of a natural day, which is distinguished from night, and which is exclusive of the seasons of morning and evening twilight : (since night, in the comprehensive sense of the word, includes both those seasons.) For it was, evidently, no more the object of the legislature, to prescribe what portion of each week ought, in a religious view-, to be observed, as holy time, than it was to point out, at what hour, on each Sunday, considered as a natural day, that portion of time ought to commence : but, to prevent the transaction of secular business, and the disturbance, which must attend it, during that part of Sunday, which was supposed to be hallowed, by Christians in general, of all denom-inalions, viz. that period, which elapses between the rising and setting of the sun.

That this was the only object of the clause in question, is evident, in the first place, from the practical construction; which, by the immemorial and universal usage of the state» has been given to the term “ Lord’s day,” as used in several other parts of the same statute. The 3d section enacts, among other things, that no person shall “ do any manner of secular business, work, or labour, (works of necessity and mercy, excepted,) nor use any sport, &c. or recreation, on the Lord’s day, or any part thereof.” And no one will deny, I trnst, that the term, “ Lord’s day,” in this section, has the same meaning, as in that, which relates to the service of civil process. But it is a fact of universal notoriety, that, though the practice of all Christian denominations, as to the hours, to be observed, as holy time, is not the same 5 yet, secular employments of any kind, and most ordinary recreations, are openly and freely pursued, as convenience, or inclination dictates, by all persons, not prevented by religious scruples, or habits ; and in every part of thé state, as well on that, as on any other, day, except in the day season. And this, so far as we have any knowledge upon the subject, has always been the case.

By the 3d section, it is provided, that “ no traveller, &c. shall travel on the Lord’s day, except from necessity, or charity by the 4th, that “ no persons shall convene and meet together, in companies, in the streets, or elsewhere; nor go from his or her place 0/ abode, on the Lord’s day and the 19th contains a special provision, for the arrest of all persons, “ unnecessarily travelling, on the Sabbath, or Lord’s day.” But it is as notorious as any matter of common experience, that by a universal practical construction, in which the wholé people, and the whole body of the magistrates, of the state, have concurred, these several provisions have been limited, like those of the former section, to the artificial day % i. to that part of the natural day, which begins at the rising, and ends at the setting, of the sun. And as to the 12th sec - tion, out of which the present action has arisen, there is cer-tianly no novelty, in serving civil process in the night season, either of Saturday, or Sunday ; nor does it appear, that practice lias ever, till now, been called in question. This ¡0!,g continued usage, this practical exposition, uniformly acquiesced in, by all classes of people, and by the legislature also, would seem alone sufficient to put the question at rest.

All our judicial decisions, also, which relate to the question, conform to this general understanding and usage. Th# execution of a written instrument of any kind, on Sunday, between sun-rise and sun-set, has always been holden to be within the second section of the act, as falling within the description of secular business and the instrument so executed, has, therefore, always been adjudged void. But in the case of Mumford v. Buell, 1 Root 145. the superior court held a note, executed between the hours of eleven and twelve, on Saturday night, to be valid. In Carpenter v. Crane, 1 Root 98. the decision was the same way, as to a note executed at 2 o’clock, on Sunday morning. And in Sheldon v. Hunt, determined by the same court, in the year 1812, in the county of Litclifield, the rule, laid down in the direction to the jury, was, that a note, made after sun-set, on Sunday, was good. Now, presuming, as we certainly must, and as I have done, that the term, “ Lord's day," means the same thing in the 1.2th, as in the 2d section, these cases appear to me decisive of the question.

But a still stronger ground, (if any can be so,) for the construction I have adopted, is furnished by the 5th section, which professedly extends its provisions beyond the Lord's day ; and which enacts, that “ no inn-holder, &c. shall entertain, or suffer any of the inhabitants of the respective towns, where they dwell, to abide, or remain in their houses, drinking, or idly spending their time, on Saturday night, after sun-set, or on the Lord’s day, or on the evening following, upon the penalty,” &c. This phraseology furnishes complete demonstration, 1st, that the « Lord’s day," as the term is used in this section, does not signify a natural, or Mean solar, day, of twenty-four hours ; and, 2dly, that it docs not include any part of Saturday night, or of Sunday evening : both these being expressly distinguished from it. But the word, <( evening,” according to its popular, and only prevailing, acceptation, here, denotes that season of the natural day, which commences at sun-set, and comprehends the first part of the night: and by “ Saturday night,” is evidently meant, that period, jyhich extends from the setting of the sun, on Saturday, to its rising, on Sunday : Night, boll» in the correct, and the popular acceptation of the word, being the correlative, not of morning, or evening, but of day — that is, of the artificial, day.

This last section, I confess, appears to me sufficient to remove all grounds of doubt, if any might otherwise remain. The arrest in question w7as, therefore, according to every view that I have been able to take of the subject, a lawful one. And the defendant is, of course, entitled, in my opinion, to a new trial.

Peters, J.

As our decision must depend on the construction of a statute, I lay out of the case all arguments drawn from the Sabbatism of Jews and Christians. “ If any civil process be issued, or served, on the Lord’s day, it shall be void.” What, then, is the Lord’s day, by statute ?

The object of the legislature was not to establish an article of faith, but a rule of practice j to preserve the peace of society j and protect its members from disturbance, on a day usually devoted to public worship. When our ancestors separated from the church-and state of England, a notion prevailed, sanctioned expressly by royal authority, and implied by an act of parliament, that lawful sports and pastimes” were proper « after divine service, on the Lord’s day :” Hence the prohibition of certain acts, on that day, « or any part thereof.” This expression is first found in the statute 29 Car. 2. c. 7. when the king yielded many odious measures and prerogatives to public opinion. This stat-utc, qualified by a few New-England peculiarities, was soon adopted in Connecticut, and still remains in force. Our first printed statutes simply prohibit the profanation of the Sabbath, by unnecessary travel or playing thei-eon, in time of public worship, or before or after. This being found too indefinite, the present provisions relative to the evening “ preceding and succeeding the Lord’s day” were adopted, in May, 1676, from an act oí Massachusetts, passed in 1G58 ; the preamble of which shows the precise object of the legislature, and the extent of the statute Sabbath: “ Whereas, by too sad experience, it is observed, the sun being set, both every Saturday, and on the Lord’s day, young people ami others take liberty to walk and sport themselves in the streets and fields, to the dishonour of God, and the distur-bancc of others in their religious exercises, and too frequently repair to houses of publick entertainment, and there sit drinking; all which tends not only to the hindering of due preparation for the Sabbath, but, as much asin them lieth, renders the ordinances of God unprofitable.” Had the legislature intended to define the Christian Sabbath, as a seventh part of time, they would not have united two nights in one day ; and if to include any night, their provisions respecting the evenings were superfluous and unreasonable; as they had already prohibited secular business and amusements on “ every part” of that day, under a heavier penalty; and they deprived the citizens of a right of conscience, always enjoyed, of choosing which evening to observe.

It is contended, that the prohibition of the sailing of ves - sels <s between ths morning light and the setting sun,” demonstrates that the legislature did not consider that period as the whole of the Lord’s day. But, to my mind, this proves the reverse. By morning light” our ancestors undoubtedly understood the rising sun.” This furnished a fixed and unerring standardand the words are so defined by the best lexicographer of that day $ and it is said, by a writer of great authority, that « antiently the day was accounted to begin only at sun-rising, and to end immediately upon sun-set.”

But the universal and immemorial usage of our country seems to have settled this question. Who ever heard of a prosecution for Sabbath-breaking, by secular business done in the night P Though the learned counsel have retraced the history of the Sabbath, from the reports of our late Chief Justice, to the first reporter/’ they have not produced a single decision, or judicial dictum, wherein service of civil process was holden void, or secular business punishable, unlesp done on the solar Sabbath.

Bit we need not rely on usage. The repeated adjudications of our courts, and the acquiescence of counsel, are “ confirmation strong” of professional and public opinion.

In Carpenter v. Crane, in 1785, the late Governour Huntington, then Chief Justice, Dyer, Sherman, Pitkin and Lam, Js. decided, that secular business is not forbidden at two «’clock in the night season preceding the SabbathWe arc,

indeed, informed by the Chief Justice, who was of counsel in that case, that this doctrine was not then promulgated. But, with due deference, his Honour’s recollection seems at variance with the record, as well as the report. The idea certainly was not then new j as in the summary of the laws of Massachusetts, printed in 1672, it is said, that “ by the Lord’s day is meant day-light.” In Mumford & al. v. Buell, in 1789, the same doctrine was promulgated by Law, Ch. J., Dyer, .8dams, Boot and Chauncey, Js. These “ venerable sages of the common law,” some of whom had adorned the bench for nearly thirty years, in their reasons on file, expressly say, that the legislature, by Lord’s day, meant the artificial, or solar day.” This was in relation to an act done between eleven and twel ve o’clock in the evening of Saturday, and is entitled to the greater respect, as all these judges were of a denomination, who have generally considered Saturday evening as a part of the Christian Sabbath. And in French v. Huntington, in 1811, Mitchell, Ch. J., Trumbull and Jngersoll, Js. made a similar decision in relation to business done at nine o’clock in the evening of the Lord’s day, not on the mere authority of precedent, but a careful examination of the statute. Though I do not consider these authorities binding on this Court: yet they furnish, to my mind, satisfactory evidence of what, until the decision in question, I believe, always was, and, I trust, always will be, considered a sound construction of the statute. A contrary construction would render o«r jurisprudence more rigid than the Pentateuch, or the « blue lams” of our ancient neigh-hours : under which we have never heard, that a man was ever punished for « gathering sticks,” or “ kissing his wife,” in the night season,

I, therefore, advise a new trial.

Cn.iPM-u, J. was of the same opinion.

New trial to be granted,,

       X 'Stat. Conn., tit. 140.

       1 Car. 1. e. 1,

       8 Hume 277. 9 Hume 191.

       Revision of 1702. p. 105.

       Revision of 1672.p. 58.

         Editionof 1672. p. 133.

       Revision of 1702, p. 149.

        Bailey.

       4 Black. Comm. 224.

       Moses — “ Primus juris Relator.” 6 Rep. Pncfqi.

         1 Moot 98.

      ⅛) 1 Moot 145.

        MS.

         Vid. Numb. xv, 32.

        JYew-Hamen Colony,


source: Caselaw Access Project

author: Swift, Ch. ,T.

license: Public Domain

text:
    Griswold against Penniman and another.

      Hartford,

    June, 1818.
    A share of personal intestate estate, accruing, in right of the wife, during cov-erture,vests, even before distribution made, in the husband,absolutely,and does not, in the event of his prior death, survive to her.
    THIS was an action on a probate bond, tried at Norwich, January term 1818, before Sxvifl, Ch. J., and Braiuard and Goddard, Js.

      Joshua Starr died intestate, leaving personal estate, and several children, one of whom was the defendant Mary Penniman, then wife of John Penniman. Administration was taken on the estate of the deceased ; but no distribution was made to the heirs, until after the death of John Penni-man. On his decease, the defendant, Mary Penniman, took administration on his estate, and gave the bond on which this suit is brought, for the faithful performance of her trust. The breach relied on was, that she had not inventoried, as the estate of John Penniman, that portion of the estate of Joshua Starr, consisting of personal property, which was distributed to her as one of bis heirs. The plaintiff contended, that this property, on the death of Joshua Starr, vested absolutely in the husband. The defendants contended, that it vested in Mary Penniman, as a chose in action not reduced to possession, and so remained during the coverture, and on the death of her husband, survived to her. The court decided this point, and rendered judgment, in favour of the defendants. The plaintiff moved for a neff trial $ and the motion was reserved in the usual manner.

      Cleaveland and T. S. Williams, in support of the motion,
    remarked, that the share in question was not distinguishable, in any view which can affect this case, from a legacy given to the wife, during coverture ; which, according to the best authorities, would vest in the husband, — exclusively, and absolutely. He could discharge it, before it was due. Payment to her would not satisfy the husband’s claim. Com. Big. tit Baron and Feme. (E. 3.) citing 2 Rol. 134. Bac. Mr. tit. Baron and Feme. (D.) Palmer v. Trevor, 1 Vem. 261. Jlyer v. Fitch, 2 Conn. Rep. 145, 6. Reeve's Bom. Relut. 60. It is a general rule, that all personal property, which accrues to the wife, during the coverture, vests absolutely in the husband. The reason is, that the legal existence of the w ife is merged in that of her husband. Hence, if a note be made payable to a feme covert, it is, in contemplation ©f law, payable to the husband ; the property vests absolutely in him ; he alone can discharge it; he alone can sue upon it; and on his death, it goes to his personal representative, and not to the wife. Barlow v. Bishop, 1 East, 432. Shuttle-worth v. Noyes ⅝ al. 8 Mass. Rep. 229. But these authorities, though decisive as to the principle in question, it is not necessary to urge. The precise point in this case, was settled in Cary v. Taylor, 2 Vern. 302. That was the case of a distributary share. The intestate died during the coverture ; but no distribution was made until after the coverture terminated. It was admitted, on all hands, that this share was a vested interest in the husband ; and that before distribution made, and before the time limited by statute for making distribution, had expired.

      Goddard, contra,
    contended, that a chose in action, a legacy, ora share of an intestate estate, accruing to the wife during coverture, but not being reduced into possession by the husband, survives to her, in the event of bis dying before her, and does not go to his personal representative. Qarforth v. Bradley, 2 Wes. ere. Coppin v.-, S P. Wins. 497. Carr v. Taylor, 10 Ves. juri. 578. Reeve’s Bom. Relat. 62. In perfect harmony with these decisions, it has been held, that the husband and wife may join in an action on a promise to the wife. Prat <§• ux. v.Taylor.Cro. Elia. 61. Brashford v. Buckingham ⅜ ux. in error, Cro. Jac. 77. 205. Hilliard v. Ham-bridge, Meyn 36. Rose ⅜ ux. v. Bowler §• al. 1 II. Black. 108. 114. The necessary consequence of this, is, that if the husband die before the judgment is-satisfied, the interest in the cause of action will survive to the wife, and will not go to his executor or administrator. 1 Ckitt. Plead. 20.
   Swift, Ch. ,T.

The husband, by marriage, acquires a right to the use of the real estate of his wife, during her life ; and if they have a child born alive, then, if he survives, during his life, as tenant by the curtesey. lie acquires an absolute right to her chattels real, and may dispose of them. If he docs-not dispose of them, and survives his wife, they survive to him : but if she outlives her husband, they survive to iler. He acquires an absolute property in her chattels personal in possession ; but as to her chos’s in action, he. may maintain a Suit jointly with her to recover them : and if lie reduces tlicm to possession, during coverture, they become his ; otherwise, they survive to the wife, if she outlives him, or to her administrator, if she does not. As to the property of the wife accruing during coverture, the same rule is applicable, excepting in regard to chases in action. These vest absolutely in the husband, on the principle that husband and wife are but one in law, and her existence, in legal consideration, is merged in his. He may, in such cases, bring a suit in his own name, without joining his wife. This clearly proves, that the chose in action vests in him absolutely $ for if the right was in the wife, she must necessarily join in the suit. Where a bond or note is given to the wife, the husband can maintain an action in his own name. Barlow v. Bishop, 1 East 432. Aleyn 36. The consequence, then, is, that if the husband die before the wife, such choses in action shall go to his executor or administrator, and they do not survive to the wife: for where the property has been absolutely vested, there can be no survivorship.

It is true, in certain cases, where claims originate during coverture, the husband may sue in his own name, or may join with the wife, as for rents issuing out of her real estate, or where she is the meritorious cause of action: and then, if the husband die while the suit is pending, or after judgment, and before it is satisfied, the interest in the causes of action will survive to her, and not to the executor of her husband, though if he had sued alone, she w'ould-have had no interest. 1 Chitt. Plead. 19. 20. But this is so far from proving, that if no suit had been brought, the chose in action would have survived to the wife,it proves directly the contrary. For in this case, the jbining of the wife in the suit, is the ground of the survivorship. It is agreeing to, and recognizing her interest, by the husband ; and may be considered in the nature of a granito her; and for this reason, the suit, or judgment, may survive to her. But where no act is done by the husband ; where no suit is brought, or judgment rendered, in favour of both; his separate, absolute interest continues, and can never survive to the wife.

If. is true, that a contrary doctrine is laid down by Lord Hardwicke, in Garforth v. Bradley, 2 Ves. 676. on the authority of which, the case was decided at the circuit. He says, that a chose in action coming to the wife during cov-erture, unless the husband reduce it to possession, will sur-rive to the wife ; but agrees, that the husband may bring an action in his own name. This opinion is contradictory to the w hole current of authorities; and the concession that the husband may sue in his own name, proves, that the property absolutely vested in him, so that it could not survive, without some act done by him.

If the estate left by the father of Mrs. Penniman, was chattels personal in possession, then they vested, at the time of his death, in her husband j fora distributary share of chattels j>ersonal, in possession, is not a chose in action ; the right does not depend on the distribution, but originates by the statute, at the time of the death of the intestate. If he left debts, which it was the duty of his administrator to col-led, these would be chases in action, which, by the common law, vested in the husband, on the death of her father.

It has been said, that a different rule has been adopted, in equity : but this is a mistake. Courts of equity, when husbands are obliged to resort to them, to obtain possession of the property of their wives, have required that they should make reasonable provision for them, as when they apply to obtain legacies : but with respect to dioses in action accruing during coverture, in right of the wife, where the husband can sue in his own name, without joining the wife, there has been no rule adopted in chancery, different from law'.

The other Judges were of the same opinion.

New trial to be granted.


author: Swift, Ch. J. Hosmbk, J.

text:
    Welles against Cowles.
    THIS was an action of assumpsit, to recover the dividends, for a certain period, on twenty-live shares of the capital stock of the Talcott Mountain Turnpike Company.

    The cause was tried at Hartford, September term, 1817, befora Edmond, Smith and Baldwin, Js.
    The Talcott Mountain Turnpike Company was incorporated, by the legislature, in May, 1798. That part of the act, which constituted the petitioners a corporation, was in these words : “ Resolved by this Assembly, that Georg» Humphrey» and his associates, together with such persons as shall hereafter associate, with their successors, heirs and assigns, be, and they are hereby constituted a corporation, by the name of the Talcott Mountain Turnpike Company, for establish! rig and keeping in repair a turnpike road,” &c. The act then authorized the company, when they should have made the road, and put it in complete repair, to erect two gates, and collect toll of travellers, according to a tariff prescribed. In a subsequent part of the act, was this provision : “ And whensoever, and as soon as, the aforesaid toll shall reimburse to the said company, their successors, heirs and assigns, the sums by them advanced for making said road, and keeping the same in repair, together with an interest of twelve per cent, per annum, the said road shall be, and remain, discharged, free from said toll,”

      shares oft-turnpike arereal⅞-tute.not-fog the right tontshmit-ed, by their ⅞⅛⅛⅛⅜'* meat of expenses and interest; and are not subject to testamentary disposition, by a testator not qual - ified to devise real estate.

      Hartford,

    June, 1818.

      Sarah Morton, before and at the time of her decease, on the lTth of January, 1815, was the owner of tw enty-five shares of the stock of this company. She left two sisters, Fanny Welles, wife of the plaintiff, and Julia Morton, who were her only heirs at law'. On the 13th of January, 1815, Sarah Morton, being over the age of seventeen years, but under the age of twenty-one, made and published her last will and testament, by which she gave sundry legacies to her sisters, and other persons, and then made her cousin Thomas Mather, her residuary legatee, as follows : “ Item, I give, devise and bequeath to my cousin, Thomas Mather, all my personal estate, and all my other estate, which I may possess, that I can by will dispose of, that may be left, after paying my debts, and the aforementioned legacies.” She appointed Horace Cowles, the defendant, and William Mather, her executors, who accepted the trust. On the 9th of February 1816, Julia Morton died, leaving Mrs. Welles her sole heir. The defendant, in his capacity of executor, received the dividends on said twenty-five shares, which accrued after Sarah Morton’s death, as part of her personal property. The only question was, whether these shares, and the dividends thereon, were personal property, and could by law be disposed of, by the testatrix, in her will. The court instructed the jury, that they were not personal, but real estate, which the testatrix was incompetent to dispose of, by will; and directed them to return a verdict for the plaintiff. This being done, (he defendant moved for a new trial, on the ground of a misdirection ; and the court reserved the motion.
    'Hie case was argued, at the last Nor ember tent! of this Court, by Vitkin and Edwards, in support of the me,lion, and by T. S. lVilliams, and Cowls, contra. After considerable discussion among the .Judges, some of whom bad not formed a decided opinion, they continued it to advise.

    In support, of the motion, it was contended,!. That this' property wanted that yerman ene if, which is essential to constitute it real estate. By the express terms of the grant, the toll is to cease as soon as tlie expenses of the company are reimbursed, with twelve per cent, interest. This reimbursement ¡nay be accomplished in a few years j and if facts of general notoriety, with regard to the. amount of travel on this road, can he taken notice of, if undoubtedly will be. This is clearly not a “ perpetual iniieriiance.’’
    2. That if does not partake of the realty. The state itself had no interest in the soil, and could not grant any; nor does the act of incorporation purport to grant any. The company, of course, acquired none. It is an observation, which lias the force of a maxim, that the nature of the thing may be properly illustrated from the remedy the law gives for it. Bur it is clear, that this company can maintain no real action in respect of the road. So far as regards the nature of the estate, this highway is like every other highway. In ordinary cases, the inhabitants of the district through which a road runs, arc compelled by law1 to make it, and keep it in repair : the fee of she land remains in the original proprietors ; and the right of passage is unrestricted. Here, the legislature have contracted with certain individuals, to make the road and keep it in repair, and have constituted them a body politic for that purpose; the fee of the land remains, precisely as in other cases, in the original proprietors ; and the right of passage is subject to a small assessment, the avails of which go to reimburse the makers of the road. It can obviously make no difference in the nature of the tiling, whether a surveyor of highways builds or repairs a road, and is reimbursed from the proceeds of a tax upon the inhabitants of the district, or whether it is done, by an authorized association of individuals, who are reimbursed from the proceeds of an assessment upon travellers. Tim right in both cases is the same, or strictly analogous, ⅛, That of compelling contributions from the persons legally liable, for the purpose of reimbursing expenses. The right in question would seem to savour less of the realty, than an annuity in fee, granted by the king, out of the Barbadoes duties, which were paid in respect of the tenure and produce of land | and yet such an annuity was held to be a personal inheritance, not within the statute of Frauds. Earl of Stafford v. Bulklcy, 2 Ves. 170.178. It has also been held, that an annuity charged upon the post-office, until a certain sum to be laid out in land should be raised, was a mere personal annuity. Lady Holdernesse v. Marquis of Carmarthen at. 1 Bro. Ch. Ca. 377.
    3. Admitting that the estate owned by the company, in its corporate capacity, was real estate ; yet the interest of Sarah Norton,, an individual stockholder, was only a right to receive a certain proportion of such dividends as should be declared» This right had no concern with the realty j her only claim was upon the company ; and that was strictly personal.
    It was insisted, contra, that the turnpike stock in question-Was an incorporeal hereditament and real estate.
    1. It is comprised within the established definitions of real estate. 44 Things real/’ as contra-distinguished from things personal, are said, by Blackstone, to be 44 permanent, fixed and immoveable and 44 things personal,” on the other hand, to be 44 goods, money, and all other moveables, which may attend the owner's person.” 2 Black. Comm. 16. The same writer defines 44 an incorporeal hereditament” to he 44 a right issuing out of a thing corporate, or concerning, or annexed to, or exerciseabie within, the same.” 2 Black. Comm. 20. Blackstone’s authority is Co. Litt. 10. b. 20. a, which fully supports him. Cruise says, 44 real property consists of land,” (in the most comprehensive sense of that term,) 44 and of all rights and profits arising from, or annexed to, land, which are of a permanent and immovable nature.” 1 Cruise’s Big. 1, 2. Lord Coke makes all incorporeal her-editaments savour of the realty, which concern land, or certain places — d. e. are exercisable within assignable local limits. Co. Litt. 20. 6. Now the rigid of taking tolls on this road, which is the property in question, is a right issu~ «ig out of land; it concerns land; it is exercisable within certain local limits ; and it is, in the sense required, permanent. The law considers an estate as permanent, which may endure forever, though it may be defeated, pursuant to a provision in the grant, within a short time. The estate of a mortgagee is liable to be defeated, even at law, by payment of the money, when it becomes due ; -but will it be contended, that this estate wants the permanency requisite to make it real estate ?
    2. This property is real estate, according to the decisions in analogous cases. In Buckeridge v. Ingram, 2 Ves. jun. 652. it was decided, that shares in the navigation of the river Avon, were real estate, which could not pass by will, without three witnesses ; and that the widow of the testator was entitled to dower in them. The nature of that property, as appears from the master's report, is not distinguishable from our turnpike stock. It has also been decided, that dVew-River stock, is real estate, on a question, whether the wife can be barred of her interest in it, without a fine. Drybutter v. Bartholomew, 2 P. Wins. 127. In The King v. The inhabitants of Chipping-J^orton, 5 East 239. 242. Lord Ellen-borough expressed an opinio», that the tolls of a market for the sale of cattle, constituted an incorporeal tenement, according to Co. Liti. 19.$. 2Q, a. and Webb’s case, 8 Itep. 46. ⅛ In Roberts on Frauds, p. 126. it is said, that the statute of Frauds, is confined to real estate ; and in the same book, p. 127. it is said, that it extends to shares in the New-River, and to all tolls. The grant to the New-River Company, authorizes them to dig a trench, and maintain it, through the grounds of individuals, on paying them the damage, for the purpose of bringing water into the city of London, but expressly provides, that the inheritance of the trench shall remain in the original owners. 2 Cay’s Stat. ,551. [3 Jac. 1. c. 18. s. 1.] This makes the interest of the stockholders arid that of the owners of the land, the same as the corresponding persons have, in the stock and soil of our turnpike roads.
    3. These shares are made real estate, by the act of incorporation. A distinguishing feature of real estate, is, that it goes to heirs, arid not to executors. The legislature have expressly made this stock descendible to heirs. rJ’licy have i hereby treated it as real estate, ami manifested tiieir intention that it should be such,
    4. The general practice of our sister stales, and the frequent ¡maniré of this stale, of expressly providing, in their grants, to turnpike and toll-bridge companies,- that the stork shall be considered personal, estate, affords an inference, that without such provision, it would not be personal estate.
    In reply, it was remarked, that the word “ heirs” can have no application to a corporation ; it can mean nothing more than “ successors j” and is mere surplusage.

       For instances of such provisions in grants made by the legislature of Connecticut, see the acts of incorporation of The Chatham and Marlborough Turnpike Co. State Rec. Oct, 1809* p. 43. The East-Haddam and Colchester Turnpike Co. Id. Oct. 1809. p. 47. The Durham and East-Guilford Turnpike Co. Id. May 1811. p. 101. The Southington and Water bury Turnpike Co. Id. Oct. 1812. p. 38. The Farmington and Havwinton Turnpike Co. Id. Oct. 1812. p. 40. The Middletown, Durham and Mew-Haven Turnpike Go. Id. Oct. 1813. p. 33. The Middletown and Meriden Turnpike Co. Id. Oct, 1809. p. 35. The Tittle Falls Toll Fridge Co. Id. May 1803- p. 60. Huwletfs Bridge Co. Id. May 1803. p. 45. WarneFs Toll Bridge Co. Id. May 1803. p. 62. The New-Milford Toll Bridge Co. Id. May 1803. p. 64. The Great Falls Bridge Co. Id. May 180?. p. 97. &c.

   Swift, Ch. J.

Though the public do not own the right of soil in highways, yet they have the right? to pass and re-pass, and to do every act necessary to make and repair the roads. This right, though of an incorporeal kind, is real property. When the legislature incorporated the turnpike company in question, they authorised and empowered them to make and maintain the road, to erect gates thereon, and collect a certain toll, till the expense of making and repairing the road should be reimbursed to the stockholders, with twelve per cent, interest. This is a right, issuing out of real property, annexed to, and exerciseable within it; and comes within the description of an incorporeal hereditament of a real nature, on the same principle as a share in the New lliver, in canal navigations, and tolls of fairs and markets. Drybutter v. Bartholomew, 2 P. Wms. 127. Habergham v. Vincent, 2 Ves. jun. 232. The King v. The inhabitants of Chipping-Norton, 5 East 239. This is not a mere right of action in favour of the company to collect a toll from individuals passing the road ; but they can, by erecting the gates, compel passengers to pay for the privilege of passing the road. This is a power annexed to, and exercisable upon, the turnpike road ; and the toll is paid for passing the road, and, consequently, issues out of it.

It has been urged, that the individual stockholders have only a claim on the company, and not upon the realty, and ibis must be of a personal nature. But the stockholders, as members of the company, are owners of the turnpike road ; and it is in virtue of this interest, that they have their claims for the dividends, or their respective shares of the toll. It is not a mere claim on the 'corporation.

It is further insisted, that this right to collect the toll is of a limited duration, tbat is, till tine expenses are reimbursed : that this must happen at some period ; and the remoteness of it can make no difference; .consequently, this must be a personal right. It is true, when the estate must determine at a certain time, and may determine sooner, it is a chattel interest. But a freehold maybe created upon a condition ; and where the condition or limitation is uncertain, depending on a contingency, this uncertainly preserves the freehold : for if the condition remain unbroken, or is not performed, it may last forever, or, at least, for the life of the ow'ncr. Here, the grant to the turnpike company is conditional, or more properly speaking, limited ; depending on a contingency, the reimbursement of the expenses of the road. If this should never take place, and there is a possibility it may not, then the estate will endure forever; but the mere possibility that the event may happen, on which the estate will be defeated, does not convert it into a chattel personal. 2 Black. Comm. 156.

Hosmbk, J.

The only question necessary to be decided in Ibis case, is, whether turnpike shares are personal estate ; If they are not, the testatrix, by reason of her tender age, was not legally capable to dispose of them by her last will. 1 Stat. Conn, tit. 8. s. 1.

To simplify the enquiry, it will be useful to remove out of Ihc way some considerations which embarrass the mind in its progress towards a legal result.

Estates heh~ by statute merchant, statute staple anti elegit~ are merely chattel interests. They vest in the executors of the deccasc~1, ~ot by reason ~f there general uathrc. bn~ because « being a security and remedy provided for the present debts of the deceased, to which debts the executor is entitled, the law lias therefore thus directed their succession ; as judging it reasonable, from a principle of natural equity, that the security and remedy should fee vested in those to whom the debts, if recovered, would belong.” 2 Black. Comm, 162. From this source, therefore, no argument applicable to the present case can be deduced. Neither can any fee derived from the fact, that turnpike shares in England are deemed chattel interests. They are made such by statute, which limits them to a certain number of years. In the state of Mew-Tork, the laws authorising turnpikes, expressly constitute the shares personal estate. Under this head, I will only add, that the mode of leving executions, on this species of property, furnishes no aid towards a decision of the principal question. It is expressly prescribed by statute.

Turnpike shares are not embraced within any description of personal property, with which I am acquainted. Chattels personal are, properly speaking, things moveable ; which may be annexed to, or attendant on, the person of the owner, and carried about with him from one part of the world to «mother.” 2 Black. Comm. 387. It is equally clear, that turnpike shares are not chattels real. These have the immobility of land, but want a sufficient legal indeterminate duration ; and this want it is that constitutes them chattels. 2 Black. Comm. 386. The utmost period for which they can last, is fixed and determinate. But, the estate in a turnpike share is indeterminate, and may last forever. It falls within the reason assigned for considering estates durante viduitate, or for any like uncertain time, estates for life, since by possibility they may last so long. Co. Lit. 42. 3 Rep. 42. A grant of land, at common law> to a man and the heirs of his body, was called a conditional fee. It might endure forever; though on failure of the heirs specified in the grant, the land would revert to the donor. Plowd. 241. If then, turnpike shares are neither chattels real nor personal, what remains but that they are of that species of real estate denominated tenements ? “ This word includes not only all corporate inheritances, which are or may be holden, but also all inheritances issuing out of any of those inheritances, or concerning, or annexed to, or exercisable within the same, though they He not in tenure.” Co. Lilt. 19, 20. « Therefore,” says Coke, “ they may be entailed. Rents, estovers, or other profits whatsoever, granted out of land ; or uses, offices, dignities, which concern lands or certain places, may be entailed within the said statute \ because all these savour of the realty. jBut if the grant be of an inheritance merely personal, or to be exercised about chattels, and is not issuing out of land, nor concerning any land, or some certain place, such inheritances cannot be entailed, because they savour nothing of the realty.” The expression cited, “ though they lie not in tenure,” merits attention, to put down a common error, that nothing can be real estate which is not visible and palpable. A single instance will sufficiently illustrate this subject. An advowson is an incorporeal hereditament, though it is neither the object of sight nor touch. It is the right of presentation to an ecclesiastical living. When the nominee enters, and receives bodily possession of the lands and tenements of a church, there is a visible corporeal fruit j but the estate which the patron has, is the invisible right of presentation only. The same observation is applicable to other incorporeal heredita-ments, and among them to an annuity, « in which a man may have a real estate.” 2 Black. Comm. 40. In short, Wooddeson, vol. 2. 57. correctly defines incorporeal hereditaments <f to be such rights and estates, descending, or capable of descending, in fee simple, or fee tail, of which the essence is merely ideal, and not the object of our outward senses.”

A wife, at common law, is dowable only of lands or tenements, of which her husband was seised at some time during the coverture. Co. Lilt. 30. b. Yet she may be endowed of the third part of the profits of stallage ; or of the profits of a fare ; or of the profits of the office of the marshalsea ; or of the profits of keeping a park j or of the profit of a dove-house ; or of a rent in fee. All these instances, and others of the same nature, which might be enumerated, decisively show*, that tenements, or real estate, exist, not only in the person w ho has actual seisin of the land, but in others, who have a profit or rent derivable from it, or from an office concerning it.

I think it undoubted, that a turnpike share is that species of real estate denominated a tenement. Over the soil, the owner of the share has no other interest, than a right to render It passable, and to receive a compensation. Hut « rents or any other profits whatsoever} which concern lands, or are peculiarly and certainly local, may be entailed as tenements.. because all these, says Sir Edward Coke, savour of the re~ ally.'’ 2 Wooddeson 71. In Drybutter v. Bartholomew, 2 jp. Wins. 127. it was decided, that the husband being seised of a share of the JVew-Tiiver water, the wife could not be barred without a line. Wooddeson, vol. 2. 50. referring to this case, makes the following observations : “ Thus, also, the several shares or interests in the Mew-River water, are clearly hereditaments, in which a fee simple may be acquired j and, I apprehend, they are to be ranked with those of the incorporeal kind. For they do not seem to give an absolute or exclusive right or ownership in the water, or in the soil covered with water, to any proprietor, individually, or to all tlic proprietors, jointly ; but only to a real or freehold interest in the rents and profits resulting from a proprietary share in the undertaking, as regulated by the legislature.”

The master of the Rolls, in Buckeridge v. Ingram, 2 Ves. jun. 652. decided, that the shares in the river Avon navigation, a case essentially similar to the one under discussion, were real estate. That river was rendered navigable by persons authorized by act of parliament. The proprietors had no interest whatever in the soil, except what arose from the right to enter on land, and by digging or other means, to accomplish the general object of the law. The value of the shares arose from the rates and duties collected. After having referred to the doctrine of Lord Coke, before recited, the master of the Rolls observed, that the act gave a right in and over the soil, and certain real rights arising in and out of the soil. « I have no difficulty” (says he,) “ in saying, that wherever a perpetual inheritance is granted, which arises out of lands, or is in any degree connected with, or, as it is emphatically expressed by Lord Coke, exerciseable within it, it is that sort of property the law denominates real.” F. 663,4.

In the case of the Mng v. The inhabitants of Chipping-Norton, 5 East, 239. it is said by Lord Ellenborough, founding himself upon the authority of Lord Coke, in his comment upon the statute of Westminster 2d. or on Webb’s case, 8 Rep. 46. b. that the receiving the tolls of a fair or market was the taking of a tenement, within the law concerning the settlement of paupers. By the statute of Frauds and Perjuries, « no action shall be brought to charge any person upon any contract or sale of lands, tenements or hereditaments,” &c. unless the contract is in writing. But all freehold rents, of whatever denomination, are within the operation of this clause, as coming under the word “ tenements.” Habergram v. Vincent, 2 Ves. jun. 232. Roberts on the statute of Frauds, 126, 127.

Without pursuing the subject further, I have no hesitation in declaring, that turnpike shares, on principles of common law, cannot be classed with personal estate; but, that they are real estate, and the testatrix, Sarah Norton, was incapable of devising them.

The other Judges were of the same opinion.

New trial not to be granted.

      «) During the pendency of this cause in the supreme court of errors, the General Assembly passed an act, which, after stating in the preamble, that doubts had been entertained, whether shares in banks, turnpike companies, and other incorporated companies, should be disposed of as personal or real estate, provided, that all such shares, thereafter, should be considered, and might be disposed of, as personal estate,, 2 Conn. Stat. May Session, 1818, c. 10.


author: Swift, Ch. J.

text:
    The Marlborough Manufacturing Company against Smith.
    THIS was an action of assumpsit, brought by the Marlborough Manufacturing Company, to recover of the defendant, as a member of the company, and a proprietor of one share of the stock thereof, the sum of 300 dollars, being the amount of an assessment upon each share, laid bf the'directors, at a meeting held at Marlborough, on the 11th of December, 1816. The charter of the company, granted at a special session of the General Assembly, in January, 1815, was set forth in the declaration. One section provided, that the capital slock should be considered as personal estate, and he transferable, only on the books of the company, in such form as the direr-torg should prescribe. Another section provided, that the stock, property and affairs of the corporation should be managed by not less than three, nor more than seven direc-*ors, one of whom they should appoint their president, who should be stockholders, and should hold their offices for one year; and that a majority of the directors, should, on all occasions, constitute aboard for the transaction of business. A further section provided, that the president and directors for the time being, or a major part of them, should have power to appoint and employ, from time to time, a secretary, treasurer, and such other officers, mechanics, workmen, artificers, labourers and servants as they might think proper, for the transaction of the business and concerns of the company 5 and also, to make and establish such by-laws, rules and regulations as they should think expedient, for the better management of the concerns of the company. A clause at the end, reserved to the General Assembly, the right, al any time, to alter, amend or rescind the grant. The declaration also stated an additional resolve of the General Assembly, passed in October, 1816, which was as follows; « Resolved, that the Marlborough Manufacturing Company shall have the power of assessing the stockholders of the said corporation, in proportion to their number of shares, respectively, such sums as shall be found necessary to pay and discharge all the just debts of the said corporation, giving such notice thereof as the by-laws and regulations of said company shall prescribe; and in case any stockholder, or stockholders, shall refuse or neglect payment of such assessment, for thirty days after the same shall have become due and payable, and after he, or they, shall have been notified thereof, such negligent stockholder, or stockholders, shall forfeit to said company, all his or their previous right and interest whatever in said company; and the said corporation, on the refusal or neglect as aforesaid, of any stockholder tu pay said assessment, are empowered to bring any proper action for the recovery of the same.”

      ^^corpo-rating-a ny, provided, that the shares of stock should be transferable only on the books of the company, in such form as the directors should prescribe ; and a by-law, established by the directors, provided, that transfers of stock should be made, by assignment, m the treasurer’s book, either m person, or by authorized attorney ; it was held, that to render a transfer valid, so as to constitute the assignee a stockholder, there must be a written assignment, on the treasurer’s book, subscribed by the assignor, or his authorized attorney ; a mere entry of credit, to the assignee, on the treasurer’s book; for the amount of the stock, being insufficient.
    The general powers, given, by the charter of a manufacturing company, to the directors, to manage the stock, property and affairs of the corporation, do not enable them to apply to the legislature for an enla.gement of the company’s powers; and a resolve, passed on such application, without any authority from the company, is void.
    Where power is granted, by the legislature, to an incorporated company, to raise a fund in addition to Ihetr capital siock, by assessment upon the stockholders, such power cun be oxer ■ cised by the stockholders only, at a proper meeting.

      New-Haven,

    November, 1818.
    The cause was tried at Hartford, September term, 1818, before Swift, Ch. J. and Brainard and Chapman, Js.
    On the trial, the plaintiffs proved the charter of the company, and the subsequent resolve of the legislature. It appeared, that the latter was procured, on an application by the directors, in the name of the company, without any vote of the stockholders, authorizing it. The requisite amount of stock was taken up; the company went into operation ; and became insolvent. The share, No. 31. of the stock, was originally taken up by Davis Norton, and has passed, by several successive transfers, (taking them to be effective) to the defendant. A by-law of the company, regularly made and established, required, that all transfers of stock should be made by assignment on the treasurer’s book, either in person, or by authorized attorney, on surrender of the certificate granted for the stock, and a new certificate being granted by the treasurer; which by-law has never been formally repealed. No assignment on the treasurer’s hook was made, either by Norton, or by any of the subsequent holders of the share in question; but the amount of the share was credited, on the treasurer’s book, to each of the successive holders, and particularly to the defendant. No certificates of ownership have been issued, except to the original subscribers; and none of these have since been surrendered, or called for. The assessment stated in the declaration was made by the directors of the company, at a regular meeting; and due notice thereof was given to the defendant. Upon these facts, the court charged the jury, that the plaintiffs could not recover. A verdict being found for the defendant, the plaintiffs moved for a new trial, on the ground of a misdirection j and the court reserved the motion.

      T. S. Williams and W. W. Ellsworth, in support of the motion,
    contended, 1. That the defendant was a member of the company. He was the legal holder of one share, unless the mode of transfer was such that he could thereby acquire no title. The charter and by-laws require, that the transfer be made in the treasurer’s book ; that it be made in person, or, by authorized attorney; and that the old certificate be surrendered up. These requisites have been complied with, except the last. It appears from the treasurer’s book, that a transfer has been made. This is sufficient. It was not necessary, that a formal instrument of conveyance should be executed by the seller, and he entered on the treasurer’s hook. The transfer will be presumed to have been duly an-
      thormed, until the contrary be shewn. As ip < lie third requisite, a strict compliance was not necessary, for these reasons. First, the by-law, in this respect, transcends the charier, and is, therefore, void. Secondly, it has never been regarded in practice. The board who made it, having full power to alter or controul it, have uniformly dispensed with it. This is equivalent to a repeal. At any rate, it must operate as a repeal in the particular case, in which the by-law is so dispensed with. Thirdly, if the provisions of the by-law were placed on as high ground as the charter, a course of practice, departing from such provisions, would bind the company. Bulkley <$• al. y. The Derby Fishing Companys 2 Conn. Rep. 252. If the company is bound, so that the defendant can claim his rights as a member, he must discharge the obligations, which he is under, in that capacity.
    2. That the additional resolve of the General Assembly was binding upon the company. First, the board of directors, by virtue of their general powers, were authorized *to apply for this resolve. They were entrusted with the whole management of the concerns of the company. Secondly, no application from the company was necessary, in order to render the resolve binding. It was a grant of additional powers to the company ; and might have been made by the legislature ex mero motu.

    3. That the directors were the proper persons to carry into effect the additional resolve, by making the assessment. This power was, not like the power of choosing directors, given to the stockholders, but to the company. Now, as the company, in their collective capacity, can never act, they must exercise their powers, by the board of directors, who are constituted their representatives for this purpose. Union Turnpike Company v. Jenkins, 1 Caines 381. 391. These powers are within that clause of the charter, which subjects “ the stock, property and affairs of the corporation” to the management of the directors.

      Edwards, contra,
    insisted, 1. That the defendant was not a stockholder. There was no assignment of the stock, by the original owner, or his authorized attorney ; and if there was, it was essentially defective, in not being entered on the treasurer’s book. This was required, both by the charter, and the by-law. An item of credit in the treasurer’s stock-account, is clearly not an assignment on bis book. Tbe surrender of the old certificate, and the granting of a new one, were substantive parts of tbe transfer. Tbe failure of tbe parties concerned to conform to tbe by-law, did not repeal it.
    2. That the additional resolve, going to affect the rights of the stockholders in their individual capacities, and in relation to property not belonging to tbe company ; and being passed on tbe mere application of the directors, not only without authority from, but without notice to, the stockholders ; was not binding on them.
    3. That the powers, specified in the additional resolve, were given to the corporation, and could be exercised only in pursuance of a vote of the stockholders, at a regular meeting. The powers given to the directors, by the charter, relate only to the original stock.
   Swift, Ch. J.

The act incorporating the Marlborough Manufac tu ring Company, provides, that the shares of the stockholders may be transferred on the books of the company, in such manner as the directors may prescribe. The by-law provides, that transfers of stock shall be made, by assignment, in the treasurer’s book, either in person, or by authorized attorney, on surrender of the certificate granted for the stock, and a new certificate being granted by the treasurer. Though the form of the assignment, is not pointed out, yet the by-law, on its fair construction, requires, that there must be a written assignment on the treasurer’s book, subscribed by the assignor, or his authorized attorney, to constitute a transfer of the stock. In this case, no such assignment is made on the treasurer’s book, but merely an entry of credit to the defendant, of the share in question. This is no compliance with the by-law, and does not transfer the share to the defendant so as to constitute him a member of the company. Whether such acts were done by the directors as would have given the defendant a claim on the company for the dividends of the share, if the business liad been profitable, is a very different question, not necessary to be decided.

The directors had the management of the concerns of the company j but this did not enable them to apply to the legislature for an increase of their powers. Such application could be made by the authority of the company only. The resolve of the Assembly, giving power to the company to assess the stockholders, was void, because the application was made by the directors only, without any authority from the company.

But if the power had been given to the company, it could only have been exercised by the stockholders at a proper meeting. As the assessment in question was made by the directors, without any authority from the company, it is void.

The other Judges were of the same opinion, except that Tbiimbcii and Chapman, Js. declined any decision as to the validity of the additional resolve.

New trial not to be granted.