author:
Swift, Ch. J. Smith, J. Baldwin, J.
      Goddard, J. Hosmek, J. Gorin, J.

text:
    Rockwell and another against Bradley.
    THIS was an action of ejectment for several pieces of land. The ouster was laid on the 2d of September 1815. The action was commenced on the 25th of the same month.
    The cause was tried at Litcfifield, August term 1816, before Trumbull, Smith and Baldwin, Js.
    On the trial, the plaintiffs claimed title to the demanded premises by virtue of three mortgage deeds from the defendant. The first was dated the 23d of August 1814, conditioned for the payment of 4000 dollars, by instalments, on the 1st of March, April and May, 1816 j the second was dated the 6th of December 1814, conditioned for the payment of 3000 dollars, on demand ; the third wras dated the 23d of August 1815, conditioned for the payment, by the 1st of March 1816, of such sum as should then be due. The mortgagor had remained in possession. No demand had boot made of him to surrender the premises, or notice given to quit possession, before the commencement of the action. The defendant admitted the execution of the deeds; but contended, first, that they were given on an usurious consideration, and were therefore void ; and exhibited evidence to establish that fact: Secondly, that he was not, from the nature of Ids right as mortgagor in possession, a disseisor of the plaintiffs, without a demand being made, or notice to quit given. The court instructed the jury, that such of the mortgage deeds as they should find to have been executed on a usurious consideration, were void, and laid no foundation for a recovery by the plaintiffs; but that their action well fay, notwithstanding the other objections made by the defendant. The jury having found a verdict in favour of the plaintiffs, for two of the pieces of land demanded, the defendant moved for a new trial on the ground of a misdirection; and the court reserved the question of law arising thereon for the consideration and advice of the nine Judges.

      A mortgagee may bring* an action of ejectment against the mortgagor in possession! without a previous demand, or notice to quit.

      New-Haven,

    November, 1816.

      Sherman and 7?. S. Baldwin,

    in support of the motion. It has, long since, been settled, that tenants at will, and tenants at sufferance, are entitled to notice, before an action of ejectment can be brought. Parker d. Walker v. Constable, 3 Wils. 25. 1 Cruise’s Dig. 274. 284.
    The relation which subsists between a mortgagee and a mortgagor in possession, though not precisely the same as subsists between the landlord and his tenant at will and at sufferance, falls, it is apprehended, within the same principle. Indeed, the difference, whatever it is, is in favour of the mortgagor; who,.notwithstanding the legal title is in the mortgagee, is, for many purposes, considered as the real owner of the land. As such, lie remains in possession, by a perfect understanding between them ; by the implied consent and license of the mortgagee ; liable, undoubtedly, to be turned out, when that consent is withdrawn. Rut until some act is done by the mortgagee, which manifests a determination to revoke that license, he can never be treated as a disseisor.
    A disseisin is a wrongful act. It implies a trespass, and is always accompanied by an adverse possession. Fairclaim d. Kmpson v. Sltackleton, 5 Burr. 2604. But the mortgagor, remaining in possession by the implied consent and license of the mortgagee, cannot, surely, he treated as a trespasser, during the continuance of that license. I)oc d. Foley v. Wilson, 11 Ea~t 56. His possession is not adverse to the title of the mortgagee j he is in, under the mortgagee ; and his possession is considered as the possession of the mortgagee. Hence, it has been holden, that the statute of limitations does not run against the mortgagee, in favour of the mortgagor in possession ; (Beachv. Royce, 1 Root 244. Beecher v. Cook, I Root 398.,) as it would undoubtedly, were his possession adverse. Fairdaim d. Empson v. Shackleton, ubi sup. Hence, too, the mortgagee out of possession is permitted to convey and dispose of the mortgaged premises, which he could not do, were not the possession of the mortgagee, considered as his.

    We claim it as an established principle, that every tenant, in possession of lands for an indefinite period, by the express or implied consent of the owner, is entitled to notice, befbre he can be sued in ejectment. Doe d. Foley v. Wilson, 11 East 56. Right d. Lewis Sf al. v. Beard, IS East 210. Goodtitle d. Galaway v. Herbert, 4 Term Rep. 680. There is no adjudged case In the English books in which the application of this principle to the case of a mortgagor in possession has been denied. The case of Keech v. Hall, Dougl. 21., was an action of ejectment against the assignee of the mortgagor; and it was very properly holden, (there being no privity between the parties,) that he was not entitled to notice to quit. Lord Mansfield, indeed, intimated an opinion in that case, that the mortgagor himself would not have been entitled to notice$ but that opinion was extra-judicial, founded, it is apprehended, upon false premises, and has been declared by the supreme court of the state of Mew-Fork, in a decision of this precise question, not to be law. Jackson d. Benton v. Laughhead, 2 Johns. Rep. 75. Jackson d. Carr v. Green, \4 Johns. Rep. 187". See also Jackson d. Ferris v. Fuller, 4 Johns. Rep. 215., where the decision of Keech v. Hall was acquiesced in, though the obiter opinion of Lord Mansfield, as applicable to this question, was denied.

      Bacon, contra.
    A present interest is vested by the mortgage deed in the mortgagee ; and he may immediately enter on the lands, though he is liable to be dispossessed upon performance of the condition by payment of the mortgage, money, at the day limited. 2 Bla. Comm. 158. Pono. Mort. 205. A seq. Mexval <$* al. v. Right, 3 Mass. Rep. 158. 155. If l he mortgagor retains possession of, and exercises acts of ownership over property, the title of which is in the mortgagee, why may not the latter treat him as a wrong-doer ; To say that the mortgagor is in, hv license from the. mort-gngee, is to assume a fact which does not appear in this rasey an(| which the court cannot infer from what does appear. H has been decided, and is admitted, that a lessee of the; mortgagor, or a purchaser of his interest, is not entitled to notice to quit from the mortgagee; {Thunder d, Weaver v, Belcher, 5 East 449. Juckxon d. Ferris v. Fuller, 4 Johns. Mep. 215.,) but a tenant of the. mortgagor having no notice, stands on as high ground as the mortgagor himself. In one of the cases cited, Uord EUenbnrovgh said, that a mortgagor is no more than a tenant at sufferance, and not entitled lo notice to quit. .1 East 4 ñ 1. The case of Jackson d. Benton v. Langhhead, 2 Johns, lien. 75., which is the principal authority relied upon by the counsel for the defendant, was derided by a divided court. The present Chief Justice of that court dissented, observing that he could see no more substantial reason for requiring notice to be given to a mortgagor where the proceedings against him are by ejectment, than there would be, should the mortgagee elect any other remedy prescribed by law. Resides, the notice required to be given by the majority of the court in that case, was six calendar months; which, indeed, is the usual term, where any notice is requisite. But this is inconsistent with the undoubted right of the mortgagee to take possession immediately. There is nothing in the nature of the condition an, ncxed to a mortgage deed, which renders notice necessary or proper, or varies the rights of the mortgagee with respect to possession, or his remedy to recover it, from those of the grantee under an absolute deed. A mortgage deed conveys the title precisely as an absolute deed does, with this difference only, that the former is defeasible upon the performance of a certain condition.
   Swift, Ch. J.

The question is, whether an action of dis-seisin can he maintained, by the mortgagee, against the mortgagor, who continued in possession, without notice to quit.

The mortgagee, on the execution of the deed, is vested with the fee of the land, and is entitled to the immediate possession, though the law day has not elapsed. It is, however, the understanding of the parties, that the mortgagor shall retain the possession.

Toe principle contended for, on the part of the defendant. is? that the mortgagor continues in possession by the license, consent, and agreement of the mortgagee ; that the possession is lawful; and that he cannot become a disseisor, unless a surrender of possession be demanded, or a notice to quit be given. Of course, to maintain this action, we must treat as a disseisor a man who has lawful possession j which is repugnant to acknowledged principles.

To decide this question, we must consider the nature of the right of a mortgagor in possession. He has been likened to a tenant at will ,* but the resemblance is very remote; for, it is agreed, he would not be entitled to emblements, or accountable for rent. The truth is, such an estate is of a peculiar nature, precisely resembling no other. Lord Mansfield, says, in Keeeh v. Hall, Dougl. 22., he is a tenant at will in the strictest sense. Though the inference from the fact that the mortgagor is left in possession, is an agreement that he shall continue it, yet this is under this condition, that he is so entirely subject to the will of the mortgagee, that lie (the mortgagee) may consider his possession to be lawful, or treat him as a disseisor, without notice to quit. This results from the nature of an estate in mortgage, where the object is to give the mortgagee an absolute power over the pledge to enable him to secure or enforce the payment of the debt.

There is no inconsistency in the agreement that the mortgagor may continue in possession liable to a suit at the will of the mortgagee. Where a landlord gave a tenant notice to quit, at a certain time, but promised not to turn him out, unless the premises were sold j. when sold, the tenant refused to deliver possession, and, on ejectment brought, contended that he could not be made a trespasser w ilhout further notice to quit, as the notice given was waived by the promise : the court held, that this w as no waiver, because the landlord retained all the rights acquired by the notice to quit, and it was a mere indulgence that the tenant should remain in possession till the premises were sold. Whiteacre d. Boult Symonds, 10 East 13. So here the mortgagee indulges oi suffers the mortgagor to remain in possession, reserving the right to bring an action of disseisin against him, at pleasure, without notice, or demand.

It is further said, it has been decided, that a sale of the mortgaged premises by the mortgagee, when the mortgagor was in possession, was not within the statute against the sa]c of lands by persons disseised thereof,* and that this proves the possession of the mortgagor to he lawful. But there is no inconsistency in saying, that the possession of the mortgagee is not such as is contemplated by that statute, though lie may be liable to an action of ejectment at the will of the. mortgagee ; for the mortgagee may treat his possession as lawful. I apprehend, however, the question docs not turn on this point. The mortgagor and mortgagee have distinct and different rights to the same land, not dependent on possession ; and these may he transferred, though the party soiling is not in possession. Should the mortgagee assign the debt secured hv the mortgage, this will carry the mortgage security to the assignee. It appears to me, then, that the nature of the right, or the estate of the mortgagor suffered to remain in possession, without any express agreement, is such that he is liable to he sued iri ejectment by the mortgagee, without notice to quit, or demand of possession ; that he is not entitled to emblements, or subject to the payment of rent.

Where an express agreement is made by the parties respecting the possession, that must govern.

I would not advise a new trial.

Thumb mi, and Edmon d, Js. concurred.

Smith, J.

If the defemlani would have availed himself of want of notice to quit, lie ought to have claimed that he was in possession by the license of the plaintiff ; and this should have been left to the jury as a fact for them to find. So general is the usage for the mortgagee to permit the mortgagor to continue in possession, that 1 should have no doubt but the mere fact of his continuing in possession, when taken in connexion with the nature of the conveyance, would warrant a jury in finding a license, unless other circumstances should appear, adapted to remove the presumption arising from such fact. .But the court cannot infer one fact from another as matter of law. In the action of trover, a demand and refusal are evidence of a conversion ; hut the court cannot, as matter of law, infer a conversion from a demand and refusal. The case of Denn d. Brune v. Rawlins, reported in the 10th of East 2G0. supports this opinion. In that case, the defendant had been in possession under a defective lease, and, while thus in possession, had paid rent. Bailey, Justice, left it to the jury, whether by this receipt of the old rent the lessor did not agree that the defendant should cpntinue in possession until he received some notice to quit | and the jury found an agreement accordingly.

It has been said, that the mortgagee may sell his interest in the land while the mortgagor remains in possession, without subjecting himself to the penalties of the statute against selling disputed titles; and also, that a fifteen years’ possession of a mortgagor will not bar a right of entry, of the mortgagee. But in these cases, the mortgagee proceeds on the ground that the mortgagor is in possession by his license ; and there is no doubt but he may elect to consider him as his tenant, if he chuses. In the present case, the mortgagee proceeds on the ground that the mortgagor is a tort-feasor, which throws the burthen on him of shewing a licence.

Bkainaed, J. also concurred in the opinion given by the Chief Justice.

Baldwin, J.

The only point in this case, is, whether the mortgagee can recover in ejectment against the mortgagor, before the law day has expired, without demand, or notice to quit.

I presume this is the first time this question has been presented to the consideration of this Court. To decide it correctly, I apprehend, wc have only to enquire what is the relation between mortgagor and mortgagee. I consider the mortgagor as remaining in possession by the implied consent of the mortgagee, until the law day has expired j I say, by the implied consent, because such is the universal usage, where no express stipulation is made to the contrary.

Whenever a person is in the possession of the ¿lands of another, by his consent, and without an express contract, lie is the tenant of the landlord at will. Such is the case of the mortgagor. He holds at the will of the mortgagee by his implied consent, and cannot be considered a disseisor, (unless he does an act inconsistent with such tenancy) until the termination of the will of the mortgagee, manifested by notice to quit, or a demand of the property, and refusal to give possession. I am,.-therefore, of opinion, that the charge was incorrect, and that a new trial ought to be granted.

Goddard, J.

This case states, that two objections were made by the defendant, at the trial, to a recovery by the plaintiff's, of that part of the lands demanded, for which they had a verdict : First, that the moitgagc deeds were usurious and void: secondly, that the defendant was a mortgagor, and not liable to be sued in ejectment without a pre\ ious notice 1;o quit. The first was found against him by the jury ; and the other w as over-ruled by the court; and the question now is, whether the direction to the jury was right.

1. am of opinion that it was. The mortgage deeds arc in common form, and do not. contain, as is now usual in England, any express agreement, that the mortgagor shall continue in possession until the day of payment. The mortgagee, upon the execution of the deed, has a right to the possession, subject how'cver to be dispossessed, and have his deed defeated, by payment of the money, I know of no difference between a conditional, and an absolute deed, in respect to the right of possession, or of action to recover the possession. The grantor in both may be left in possession j and the possession of both, may be such as that a license to continue in possession may be inferred ; and so, if an action should be brought without notice or demand, the jury might be author-ised to find that the defendant was not a disseisor, — that he was holding by license. In neither case, is he necessarily so : and the court in this case were called upon to say, that from the nature of the title the defendant was necessarily holding by the license and consent of the plaintiff. If the court had been called upon to instruct the jury, that from the nature of the plaintiff’s title, from his having left the defendant in possession, and seen him occupy and take the rents and profits, and other circumstances, they were at liberty to presume an agreement between the parties that, the defendant should remain in possession until demand ; and the court had refused so to instruct the jury ; it: would have presented a very different question for our considera-lion, upon which I give no opinion ; although 1 apprehend, this case furnishes sufficient evidence to repel ail such presumption. The defendant denied that he wras holding under the plaintiffs ; and the object of this suit, -was, probably, to try the validity of the plaintiff’s deed.

There is nothing in the nature of the title, which forbids a recovery ; and the practice of our own courts is evidence of whftt has been undci stood to bo the law of Connecticut -on this subject. Actions in favour of mortgagees have repeatedly been brought, and recoveries had, and the present objection has never been made. We lune no statute, usage, or practice requiring notice or demand in such cases.

But I apprehend, there is nothing to be found in the English authorities to warrant the opinion that this objection ought to prevail; but the contrary.

It is true, there is no adjudged case. But in Powell on Mortgages, chap. vii. p. 205., it is said, that the mortgagee may immediately enter upon the lands. Nor is the mortgagor entitled to notice to quit. Id. p. 20r. In Keech v. Hall, Dougl. 21., which was an action by the mortgagee against a tenant of the mortgagor, who was left in possession, Lord Mansfield says, « but here the question turns upon the agreement between the mortgagor and mortgagee; when the mortgagor is left in possession, the true inference to be drawn is an agreement that lie shall possess the premises at will in the strictest sense, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop,” &c. It can hardly be credited, that Lord Mansfield would thus state the law, if it was not considered as settled in that country. He says, no notice is ever given to quit.

In Thunder d. Weaver v. Belcher, 3 East 449., Lord Ellenborough interposes in the argument of counsel, and expressly recognizes the authority of Keech v. Hall, as decisive against the claim of notice to quit. ⅛ giving his own opinion iu that case, he says, “ but a mortgagor is no more than a tenant at sufferance, not entitled to noth e to quit/’ In Birch v. Wright, 1 Term Rep, 383., Bailer, J., speaking of a mortgagor, says, he is neither tenant at wi‘1 nor sufferance. « lie is not considered as tenant at will in those proceedings which are in daily use between a mortgagor and mortgagee ; I mean, in ejectments brought for the recovoir of the mortgaged lands. If he were tenant at will, the demise could not. be laid on a day antecedent to the determination of the will. But it is every day’s practice to lay the demise on a day long before there has been any actual determination of the will: sometimes back to the lime when the mortgage became forfeited ; and no objection has ever been made on that account.” Again, «'the nmitgagco has a right to the actual possession whenever lie plmisr.- : hr may bring; his ejectment at any moment that he will; ami he is entitled to the estate as it is, with all the crops growing upon it.” The same doctrine in another case is laid down by Mr. Justice Lawrence.

In 2 Wooddeson’s Lectures, 153. in notis, speaking of tlir. likeness of a mortgagor’s interest to a tenancy at will, the author says, “ in one respect, at least, his interest is interior, viz., that he may be turned out of possession by ejectment. without notice to quit.” Cruise in his Digest, til. Moriré, says, it is settled law that ejectment may he brought w ithout such notice. I think it must, therefore, be admitted;, that in England no such notice is necessary. In contemplation of law, the mortgagee is in possession, and may maintain ejectment.

One case, however, is cited, where a different doctrine has been held in a neighbouring state: fino of Jackson d. Benton v. Laughhead, 2 Johns. Rep. 75. With all my respect for the court where this case was decided, and the learned .1 tidge who pronounced the opinion in that case, 1 cannot consider it as law. That case was decided without argument, and by a divided opinion, Thompson, now Chief J ustice, dissenting ; and the case seems rather to proceed on a rule of practice, and the supposed hardship of suffering a mortgagor to be sued without notice, than any thing else; and the learned Judge intimates, that six months would be reasonable notice. Now, I do not consider it as matter ol' practice to be regida ted by every court at pleasure, if indeed it was settled, that, the defendant was entitled to any notice, the time of that notice might be matter of practice.

As to the supposed hardship, I believe the cases wilt he verj few in which it will he experienced. Mortgagees are not dc - sirous of taking possession of a mortgaged estate before foreclosure, and becoming accountable for the rents and profits, W hy not hold notice of a petition to foreclose necessary t This would give much more relief to the mortgagor. Editions will often he brought., perhaps oppressively ; but eject-ments very rarely, if ever: unless, as in this case, the mortgagor denies the title of the mortgagee.

And this brings me to another point, not made at the bar., but already hinted at, which I consideras decisive of this case, if the general question be settled either way. The. case states, that the defendant claimed, in the first place, that the relation of mortgagor and mortgagee did not subsist between him and Hie plaintiffs. He says to the plaintiffs,« I am not your mortgagor. You have no title to the land in question. Your deed is usurious, and void. But if I should not succeed in proving this j I claim that I am your mortgagor, tenant at will, am in, holding under you, by your license •, and therefore, am entitled to notice to quit.” These defences arc incompatible with each other, and cannot both be set up in the same trial. They destroy each other § or rather, the first destroys the last. I understand it to be settled law, that defect of notice cannot be set up by a tenant who controverts the title of his landlord. 2 Bla. Comm. 147. Christian’s notes.

Í am therefore of opinion, that the charge to the jury was right, and would advise against granting a new trial.

Hosmek, J.

The single question before the court, is, whether notice to quit was necessary, previous to the commencement of the plaintiffs’ suit ? The defendant is mortgagor, and the plaintiffs are mortgagees, of the demanded premises. As is customary, the mortgagor remained in possession ; the law day had not arrived; and the plaintiffs, without any previous notice to the defendant to quit the estate mortgaged, commenced their action of ejectment. In view of these facts, was the defendant a disseisor ?

Waiving all authority for the present, and looking at the intrinsic nature of the transaction, I am of opinion that there has been no disseisin. A disseisin, is putting a man out of seisin, and ever implieth a wrong.” Co. Litt. 153. 6.181. a. 2 Bla. Comm. 195. 3 Bla. Comm. 169. Taylor d. Atkyns, v. Horde & al. I Burr. 110, 111, What rerang has the defendant committed ? He has, pursuant to the general usage, and of consequence, with the implied consent of the plaintiffs, retained possession of the estate mortgaged. The mortgagees have never requested the possession. Where, then, is the wrong ? What higher evidence can be desired, of a licence that the mortgagor should remain in possession, than that which is derived from this conduct of the parties ? The most explicit language could not he more convincing.

Undoubtedly, the mortgagees, if there had been no agreement that the mortgagor should retain possession, might immediately lone entered. I Pow. Mart. 205. This right they did not think proper to exercise, but. permitted the mortgagor, of which the omission to rater, or give notice xu quit, is decisive woof, to unisihs in ’he occupation of the premises. Shall the mortgage.»»*, Ihen, be considered a wrong-doer, for retaining possession pursuant to general usage, with the. assent of the mortgagees ? Goodtitle, d. Gallaway, v. Herbert, 4 Term 680.

If the occupation of the preuiis by the mortgagor was not tortious, liow can he be found guilty of a disseisin ? If it were wrongful, and he a disseisor, his possession was adversary, and uninterruptedly continued for fifteen years, would have given him a legal title, to the.premises. But it is an established point, that no length of possession by the mortgagor-comers a lisle, for this plain reason, that it is not adverse. How then, if his possession is not adverse, unless contradictory propositions are consistent, can he be considered a disseisor :

It must, he admitted, that the defendant was a wrong-doer, or a tenant of some description. That he was not the former, Í think, is clear; and if he was the latter only, he has-committed no disseisin. Notice to quit is requisite, to render the possession even of a tenant at will, or sufferance, adverse. 2 Bla. Comm. 146. 150. Birch v. Wright, 1 Term Sep, 387. Goodtitle, d. Gallaway, v. Herbert, 4 Term Rep. 680. Parker, d. Walker, v. Constable, 3 Wils. 25. Timmins v. Rowlinson, 3 Burr. 1609. Doe, d. Bromfield & ux. v. Smith, 2 Term Rep. 436. At least, in this case, a countermand of the implied licence to possess, was indispensably necessary.

It was said in the argument, that if the grantor of an absolute; estat vin fee simple should remain in possession, he would, unquestionably, be considered a .disseisor. Of this there is no question ; but where is the analogy between that case, and. the one, under discussion ? The mortgagor is the owner of the estate mortgaged; “ and the mortgagee has but a chattel, notwithstanding the form, the mortgage being only a pledge to him for the security of his money, and the original ownership of the laud still residing in the mortgagor, subject only to the legal title of the mortgagee, so far as such ¡Ule is requisite to the end of Iris security1 Pow. Mort. 221, It is for this reason, that: there exists an usage almost universal, to permit the mortgagor to retain the possession.

It has been taken for granted, that an ejectment might be sustained against the mortgagor, without any previous notice io quit. This impression, if it. did not originate from Ibe opinion of Lord Mansfield, in Keech v. Hall, 1)mg. \5i. vis-doiAtcdly has br-\o confirmed by it. “ S\ ben tiie nmrt-gagor,” said Hmt learned judge, is left in possession, the true inference to bo drawn, is, an agreement that he shall possess the premises at will in the strictest sense.’* What, Mien, is the consequence ? It is, said the same judge, “ that no notice is ever given him to quit.” But a tenant at will has right to a notice of this description, and without it he, is not a disseisor. The case just cited, which has often been considered as conclusive against the mortgagor, did not bear the least relation to him. The plaintiff was a mortgagee, and the defendant the lessee of the mortgagor. Between the parties to a mortgage there is a privity, and the mortgagor remaining in possession, it is a .fair inference, that lie is in by licence of the mortgagee. But, with, the mortgagee the lessee of the mortgagor has no privity 5 and the very act by which he claims to possess the mortgaged estate, that is, the lease of the mortgagor, terminates the estate, arid renders the pretended lessee a wrong-doer. Co. Litt. 55. 2 Bla. Comm. 146. The licence implied from the permitted possession of the mortgagor, is strictly personal, and invests him with no right to transfer the possession to another. In the case of Thunder d. Weaver r. Belcher, 3 East, 448. which was an action of ejectment brought by the mortgagee’s lessee against the lessee of the mortgagor, this point was directly decided. It was said by Lord Ellen-borough, «-that-a mortgagor is no more than a tenant at sufferance, not entitled to notice to quit, and one tenant at sufferance cannot make another.” There could be no reasonable pretence, that notice to quit was necessary, when the defendant entered without authority, and by wrong. The obiter dictum relative to notice to a tenant at sufferance, were it necessary to examine it, would hardly be deemed law. ie The tenant being once in by a lawful title, the law will suppose him to continue upon a title equally lawful; unless tiie owner of the land, by some public and avowed act, such as entry is, will declare bis continuance to be tortious.” 2 Bla. Comm. 150.

It has been repeatedly decided in the state of Meyo-Vork, that before the mortgagee brings his action of ejectment against his mortgagor, he must give him notice t-⅞ quit, the premises. Jackson, d. Benton v. Laughhead, 2 Johns. Rep. 75. Jackson, d. Carr v. Green, 4 Johns. Rep. 186, It like-'v*sc *UIS ^ccn Ocl.ei’minctl. that if the suit is comment cd against the purchaser of the interest of the mortgagor, between whom and the mortgagee there is no privity of contract or estate, a previous notice to quit is not necessary. Jackson, d. Ferris v. Fuller, 4 Johns. Rep. 1215. Jackson, d. Simmons & al. v. Chase, 2 Johns. Rep. 84. These determinations, I consider, as founded on correct principle. Not a case has been found, in which an ejectment has been brought against a mortgagor, and a notice to quit has been held necessary.

How extensive the practice has been in this stale, to sustain actions of ejectment against mortgagors, .without notice to quit, I am not informed: but, admit it to have been universal. A practice adopted without any legal sanction, and continued sub silentio, is too feeble a foundation on w hich to decide in opposition to plain principles. .

It is of little importance, considering the judgment of Ihc-court, from which I have the misfortune to dissent, that I should express my opinion on the nature of the notice tJiai should be given to mortgagors in possession. Rut, to avoid all misconception on this subject, I would observe, that a countermand of the implied licence, for a reasonable time, and in a reasonable manner, is all that I should deem requisite.

Gorin, J.

The direction to the jury was, in my opinion, wrong. I know of no case, in which it has been determined, that a mortgagor in possession, is liable to the mortgagee, in trespass or ejectment, under circumstances like the present. And such a determination would, in my judgment, be repugnant to the plainest principles of law and justice. The cases of Keech v. Hall, Dough. 21., of Thunder d, Weaver v. Belcher, 3 East 449. and Jackson d. Ferris v. Fuller, 4 Johns. Rep. 215., were all between mortgagees and the assignees, or under-tenants, of their mortgagors : and may, therefore, be laid out of the question, agreeably to the distinction taken in Jackson d. Simmons al. v. Chase, 2 Johns. Rep. 84., and Jackson d. Ferris v. Falter, before cited. For as a mortgagor has, confessedly, no power to create an under-tenanc) : an) one, holding under him, by a lease or license subsequent ■o tli© mortgage, may, of course, be treated by the mortgagee, as a stranger and a trespasser. This point is perfectly dear.

But the question is very different, whether the mortgagor, when left in possession, is to be subjected to damages and costs of suit, without even a previous demand that he should surrender the possession, and when lie was, perhaps, ready to surrender it, upon a moment’s warning. The only original foundation of the supposed rule, that a mortgagor is liable to a recovery, in such a case, is a dictum of Lord Mansfield’s in Ketch v. Mall. But even that dictum contemplates, in my judgment, no such rule: For it manifestly relates, not to notice to quit, given before action brought, to a tenant at will, as such, but only to the six months’ previous notice, required to be given, in cases of tenancy from year to year; though it appears, I confess, to have been understood in a more extensive sense, in the subsequent case of Thunder d. Weaver v. Belcher. But it is particularly worthy of remark, that the observations made in the latter case, in relation to the liability of the mortgagor, without notice to quit, are founded, professedly, upon the dictum in Ketch v. Hall: and upon what I humbly conceive to have been a mistaken construction of it. The dictum in question is, that when the mortgagor is left in possession, “ the true inference to be drawn, is an agreement, that he shall possess the premises, at will, in the strictest sense; and, therefore, no notice is ever given him to quit.” But by a tenant at will in the “ strictest sense,” nothing more is meant, by Lord Mansfield, than a tenant at will, in the original, strict, and proper sense of the term, as contradistinguished from a tenant from year to year. For the very distinction, and the only one to which he was adverting, was that between the rights of a mortgagor, or his assignee, in possession, on the one hand, and those of a tenant from year to year, on the other. And that the notice, to which he refers, is the six months’ notice, required IS be given to a tenant from year to year, is perfectly manifest, not only from his words, already cited, but from the context. For he observes, that the mortgagor possesses at will, in the strictest sense, and « therefore, no notice is ever given him to quit.” But a tenant: at will, in the strictest sense, known to the law, is, and a!v ays was, entitled to notice to quit, either by an express declaration, or some oilier art, of the lessor, which would amount to a determination of tin-estate. 2 Bla. Comm. 146. 1 Vent.248. Co. Litt. 55. 57. If then Lord Mansfield is supposed to have meant, tha' be cause a mortgagor is a strict tenant at will, ho was entitled to no notice whatever, before action brought; lie must, of course, be supposed to have argued, not only incorrectly, but absurdly : A supposition, not in itself very probable, and which those, who rely upon his authority, cannot surely admit. From this consideration alone, it would seen) sufficiently clear, that the notice, to which, according to the dictum in Ketch v. Hall, a mortgagor in possession is not entitled, is no oilier than the six months’ notice, prescribed in the case of a tenancy from year to year. And if any doubt can still remain, it must certainly be removed by the words of Lord Mansfield himself, in another pert of ids argument, in the same ease. For in stating the poii;-. on ■which that case depended, as between the mortgagee and tin-mortgagor’s lessee, he observes, that « if the lessee is to be considered as tenant, from year to ybar, the plaintiff must fail.” And lie then adds, the question, therefore, for the court, to decide, is, whether by the agreement understood between mortgagors and mortgagees, the mortgagee has, given an implied authority to the mortgagor, to let from year to year,” kc. And the whole scope of Ids argument show-s, beyond a doubt, that the notice, required in the case of a tenancy from year to year, and that only, is the notice which he says is not necessary, in an ejectment against the mortgagor in possession.

Admitting then, that the dictum in Keech v. Hall is correct, (and according to what I take to be the true construction of it, there is no need of questioning its accuracy:) it does not decide nor affect the present case. For the question here raised, is not, whether a mortgagor left in possession is entitled to six months’ notice, as tenant from year In year : but whether, as a strict tenant at will, he is entitled to any notice at all, however short, before action brought ? That a common (or strict) tenant at will, is entitled to such notice, is unquestionable, from the authorities already cited. And it is equally unquestionable, that a mortgagor left in possession, is a strict tenant at will, or at sufferance, by an implied agreement or license from the mortgagee. It is incorrect to say, that an actual- license must be proved by the mortgagor. The license is implied, or presumed, by iaiv, from the nature of tin? transaction, and the relation of the parties, unless the contrary appears. Such is the doctrine, laid down by Lord Mansfield himself, in Keech v. Hall; and such 1 take to be the doctrine universally received. Indeed, there are several familiar and undisputed rules, founded upon this precise doctrine, and which can he vindicated upo» no other: As, that possession by the mortgagor for fifteen years, does not bar the mortgagee’s entry, under the statute oí limitations ; and that the mortgagee may' transfer his interest to a third person, or devise it, during (lie inorgagor’s possession. These analogies prove decisively, that the possession of the. mortgagor, as such, is not deemed adverse to the mortgagee. The license, thus implied, is undoubtedly revocable; but the question is, whether the mortgagor’s possession under if, shall be arbitrarily converted into an antler, by the commencement of the mortgagee’s aclion, before lie lias ever demanded the possession, or done any act amounting to a revocation of the license ? This, I confess, appears to me, directly repugnant as well to the principles of law, as to the dictates of natural justice. It is not sufficient for the plaintiffs to say, that they have the, legal tille, and the right to take possession when they please. They confessedly have both; but it does not follow that they have a right of action. To entitle them to a iecovery, there must have been an ouster. But here has been none. If, indeed, they had countermanded their implied licence, before suit brought, that would have rendered a further continuance of the defendant’s possession, tortious : but can they subject him, as a tort-feasor, to damages and costs, before the licence is countermanded, and without giving him an opportunity to surrender the possession voluntarily, or even to know that they wished him to surrender it? This would be. opposed to every analogy ; for there is no case, 1 trust, in which the possession of a mortgagor, as such, is deemed to be adverse to the mortgagee, The instances already referred to, oft he mortgagee’s retaining his right; of entry, and of his power to devise and assign his interest, notwithstanding the mortgagor’s possession, amount to demonstration on this point. And to say, (as is contended), that the law will infer or presume an ouster, from the bare facts, that the mortgagee has the possessory title, and the mortgagor, the possession, would he to say, that the law presumes directly against its own presumption, jj- seemg impossible, then, to support the present action : ^°r 110 ac^ua^ ouster, or adverse holding, is pretended. And I am glad to find, that in a neighbouring state, it has been determined, in two instances, that an action under circum stances like the present will not lie. Jackson d. Benton v. Laughhead, 2 Johns. Rep. 75. Jackson d. Carr v. Green, 4 Johns. Rep. 186. So far as these cases require notice to quit, before suit brought, they are, I think, abundantly supported by the principles of law and justice. Whether, in deed, six months’ notice can be required, as in tenancies from year to year, is a distinct question, not now necessary to be considered. According to the dictum in Kecchx. Hall, it cannot be. And as a mortgagor is not, upon eviction, entitled to the emblements ; there is, perhaps, no neccssii> for requiring it,

It has been suggested, that the consequence of a determination in favour of the defendant, would be, Unit mortgagees would keep their mortgagors continually under a notice to quit. It may be so ; though L have not the least apprehension of any such consequence ; especially, as it could answer no purpose on cither side : for mortgagees have now, confessedly, a right to give notice at any moment they please. At any rate, no injustice, would be done. For if a mortgagor should persist in holding possession, after the time appointed to quit, he would be actually a wrong-doer, and justly liable to be treated as such.

New trial not to be granted.


source: Caselaw Access Project

author: Swrrr, Oh. J.

license: Public Domain

text:
    The town of Hebron against The town of Marlborough.

      New-Haven,

    November, 1816.
    The settlement of a bastard bom in tills state, whose mother has no settlement here, is in the place of such bastard’s birth.
    THIS was an action of assumpsit against the town of Marlborough, for support furnished for Charlotte Goff', a pauper. The only question was, whether her settlement Mas in the town of Marlborough. In the superior court, the facts were agreed to by the parties, and reserved for the consideration of the nine Judges.

      Ruth Beach, mother of the pauper, was settled in Taun-ton in Massachusetts. In June, 1796, she was married to William Goff) whose settlement was then in Marlborough.

      Charlotte Goff w as born in Marlborough,in September, 179G, In 1797, William Goff removed into the state of New-i’ork, where he acquired, and has ever since retained, a settlement, in 1799, lie brought a petition to the superior court, stating that he had no access to the said Ruth, within one year next previous to the birth of Charlotte Goff, and that he. was not her father. The superior court found the statements in the petition to be true, and decreed a divorce. It was agreed, that in the present case, said petition and decree should he evidence of all the facts stated and found therein.

      Peters, for the town of Hebron,

    contended, that the pauper was a bastard, and that the mother having no settlement in this state, the settlement of the child was in the place of its birth. lie cited Reeve’s Domestic Relations, 3.75.

    T. S. Williams, contra,
    insisted, 1. That the marriage was 10 be considered as void, and the pauper a bastard. If the marriage was void, it was so to every purpose, and the mother acquired thereby no settlement in Marlborough. But iiv the law of this state, a bastard does not obtain a settlement by birth, but takes the settlement of its mother. The mother being settled in Massachusetts, the settlement of the child is consequently there, and Marlborough is not liable lor its support.
    2. If the child is legitimate, it takes the father’s settlement. When the support was furnished, William Goff was settled in New-York ; and it has been repeatedly decided by the superior court, that an inhabitant of Connecticut, by gaining a settlement in another slate, loses bis settlement in this.
   Swrrr, Oh. J.

From the facts in evidence, it appears, that the pauper, though horn in wedlock, was not the child of the husband, who had no access to the wife, but was the child of some other person. The pauper, then, was a bastard ; and the settlement must be. governed by the rules adopted in the case of bastards. By the common law, bastards acquire a settlement in the place where born, unless the mother has been removed into the place, with a view, fraudulently, to subject such place to their support. In this state, the. rule has been adopted, (hat where the mother has a settlement. the bastard follows it: but if tbo mother lias no settlement, the place of birth is the place of settlement, in this case, the mother bail no settlement in this state. She had one in Taunton in ¿Massachusetts ; but it does not appear that, by the laws of ¿Massachusetts, bastards follow the settlement of the mother, or that w here a bastard is born in another state, of a woman an inhabitant of some town in that state, they will admit such bastard to follow' the settlement of the mother. As, then, it does not appear, that the pauper folio wed the settlement of the mother in Massachusetts, the consequence is, that the place of her birth in this state, is the place of her set tlement. As this is agreed to he in Marlborough, that, town is liable for her support, and the plaintiffs are entitled to recover.

In this opinion the other Judges severally concurred.

.1 udgment to be given for the plaintiffs.


author: Swift, Ch. J. Goum), J.

text:
    The town of Marlborough against The town of Hebron.

      New-Haven,

    November. 1816.
    nt, acquired in her father’s Where the parents of an infant pauper were divorced by an act of the legislature, and the mother was appointed guardian ; it was held, that such not thereby affected.
    tVhere all the inhabitants” I iving within certain limits, were incorporated into a distinct town ment elsewbe ; it was held, that an infant pauper residing within those limits, having a settle» re in the right of her father, was not included .
    THIS w as an action of assumpsit for the support, of Sybil Skinner, a pauper.
    The case was as follows. Sybil Skinner is a minor, about nineteen years of age. Her father, Oliver Skinner, always was, ami still is, an inhabitant of Hebron: and the pauper and bis other children were horn there. In October, 1801, the mother, by an act of the General Assembly, was divorced from her husband, Oliver Skinner, and was appointed guardian to the minor children, of whom the pauper w as one, until they should respectively arrive at the age of twenty-one years. In October 1803, “ all the inhabitants living within the limits of the first school society in Marlborough,'’ consisting of parts of the towns of Colchester, Glas-lenburu and Hebron, but principally of the latter, were incorporated into a distinct town, by the name of Marlborough. The mother of the pauper, with her children, then resided in that part of Hebron which was annexed to the new tuwu. She lived there some time afterwards, and then married, and thereby acquired a settlement: in Vermont. The pauper came into Marlborough, and needed support; was relieved by that town ; and due notice was given to the select-men of Hebron.

    'Í'In's case was reserved, by consent of parties, for the consideration and advice of the nine Judges.
    T. S. Williams and W. W. Ellsworth, for the plaintiffs,
    contended, 1. That the act of the legislature divorcing the parents, and appointing the mother guardian, did not emancipate the children so as to change their settlement. There was nothing in this measure at all inconsistent with the idea of their continuing to be a part of their father’s family. The mother was appointed guardian to take care of their property. The father had still a right to the possession and controul of their persons, and was entitled to their services. But admitting that the mother, in her capacity of guardian under this act, had an exclusive right to the possession of the childrenj yet it is a decided point, that the father would be liable for their support. Stanton v. Willson Sf al. 3 Day’s Ca. 37. The relation of parent and child remains the same after a divorce, as it was before.
    2. That the pauper’s settlement was not affected by the act of incorporation, because she was not sni juris ; the words “ all inhabitants” denoting persons sui juris only.

      Peters, for the defendants,
    insisted, 1. That by' the act of divorce, the pauper’s father and mother were cadi constituted the head of a new family ; and the clause appointing the mother guardian fixed the children with her, and their settlement followed hers.
    2. That the act dividing the town of Hebron fixed the settlement of all the inhabitants then living within the tern tority constituting the new town, in that town. That the pauper then lived there, is a part of the case.

       It has been since decided, by the supreme court of Ne-m-York, in an action brought to enforce the judgment here referred to, that both the parents being tinder equal obligation to maintain their offspring, the mother could not recover against the father for their maintenance, although in that case, as in this, the guardianship of the children, by the act of divorce, devolved on her. It was said, that she could, at most, sue him for contribution only. Pawling & ux. v. Willson & cl 13 Johns. Rep. 192. 209. M,

   Swift, Ch. J.

By the word inhabitants” used in the ac* incorporating the town of Marlborough, was intended all those M ho were inhabitants of the several towns from which the new town was taken, mIio Mere of full age, and sni juris. It did not mean those who had settlements in other towns, or minors, whose parents lived, or had settlements, in other towns. The pauper, then, retained his settlement in the town of Hebron, where the father belonged, when Marlborough was incorporated, unless the appointment of the mother, when divorced, to be guardian of the children, would prevent it. But this could affect no right of the father over the children but that of guardian : it did not release him from liis liability to support them ; it did not emancipate them : and, of course, could not take away the settlement which they had acquired in his right. The pauper was an inhabitant of the town of Hebron : and the plaintiffs arc entitled to recover.

Thumbum., Edmovd, Smith, Biiainard, Baldwiv, Goddard and IIosmer, Js. were of the same opinion.

Goum), J.

It is very clear, as a general proposition, that the settlement of a legitimate child, follows that of the father, or parent bound to maintain him. And it seems to me equally clear, on principle, that the appointment of a guardian, superseding the guardianship of. the father, does not vary the rule. A settlement by parentage, is, in most respects, analogous to an interest acquired by inheritance : and it might, I think, as w7ell be contended, that a suspension of the father’s guardianship, deprives his infant children of the right of inheriting from him, as that it exempts him from the duty of supporting them. At any rate, the point was settled in Stanton v. Willson al. S Bay’s Ca. 37. Then, as the father is settled in Hebron, the only question remaining is, whether the act incorporating the town of Marlborough, separates his daughter’s settlement from his own. Now, ii. appears to me, that a minor, not emancipated, could no more acquire a settlement by virtue of the words “ all the inhabitants,” in that act of incorporation, than he could, under the words any inhabitants,” in the general law relating to settlements. {Slat, tit. 91. sec. 4.) But that: he could not obtain one in the latter case, is fully settled, by the judgment. of this Court in Huntington v. Oxford, 4 Day’s Ca. 189. I therefore concur in the opinion, that the plaintiffs arc entitled to judgment.

Judgment to be entered for the plaintiffs.


author: Swift, Ch. J. HoSmf.u, J. Gorin, J.

text:
    Frost against Wood.

      New-Haven,

    November, 1816.
    THIS was an action of assumpsit on a promissory note of the following tenor : “ Six months after date, I promise to pay Zebulon Frost, or order, two hundred and fifty-one dollars, value received, with interest.

      “ City Hartford, 19th May, 1814.

      “ For Benjamin Wood,

      “ Mner M. Warriner.”

    The plaintiff claimed, that the note was given for money borrowed for the defendant’s use. The only evidence of Warriner’s authority to bind the defendant, was contained in the following letter of attorney, executed by Wood :

    “ This may certify, that I, Benjamin Wood, of the city and county of Hartford, state of Connecticut, do hereby invest and empower Abner M. Warriner, at said Hartford, with full power to purchase any articles, for the use of my cotton factory, whirl) is now erecting in said town of Hartford; and I do hereby agree to become responsible for all contracts made and entered into by him the said Warriner, for machinery and cotton for the use of said factory, in the capacity of agent: and I do further agree, that the said Abner M. Warriner shall have the agency of said factory, for the term of live years from the date hereof; and 1 do further agree to allow him two and a half per cent, commission for all purchases, and on all sales of goods made for tlie factory, and two per cent, on the weaving of all cloth manufactured by said factory.

      s( Benjamin Wood "

    Where A., tlie proprietor of a cotton factory, gave a letter of attorney to 13., conferring on him the agency of the factory for the term of five years, empowering him to purchase any articles for the use of the factory, and engaging to become responsible for all contracts entered into by him in tlie capacity of agent, for machinery and cotton for the use of the factory'; it was held, that A. was liable on a promissory-note given by 13., as the agent of A., and in his name, for money borrowed bribe former, within the term, and to effect the object, of bis agency.

      The defendant claimed, that Warriner was not, by virtue 0f said letter of attorney, authorized to borrow money on the defendant’s credit. The court charged the jury, that by virtue of said letter of attorney, Warriner had power to borrow money for the defendant, and to execute a note therefor, so as to bind the defendant for the payment thereof, when such money was borrowed pursuant to the power given to Warriner, and for the object and business of his agency. The jury found a verdict for the plaintiff. The defendant moved for a new trial on the ground of a misdirection : and the motion was reserved for the consideration of ail the Judges.

      'Trumbull, for the delendani,
    contended, ¡hat Warriua had no power to bind Wood by any acts other than those specified in the letter of attorney. The acts specified are, to purchase machinery, cotton, and other articles fir list use of the factory. No power is given to pledge Wooa’s credit for money. There might be many reasons why such power should be withheld. Money, if obtained, might easily be converted to the agent’s private use. Disputes might arise as to the manner in which it had been applied, in the present case, money w»as borrowed, and a note given. Docs the validity of the note depend upon the intent of the agent? Then the principal may be liable, although the mamey may not have been invested in articles for the use of the factory. Does the liability of the principal depend upon the due application of the money borrowed l Then the note is not valid at its execution ; but its validity will depend upon the subsequent; acts of the agent.
    Docs the description of Warriner as agent, extend his power under the letter of attorney ? Authority to do a single act renders him an agent. The acts which he is to do are specified, and his compensation fixed. He is thus made agent, whether he be expressly so called, or not. That lie is so called, cannot extend his authorise,
    T. 8. Williams, contra,
    slated the facts. The argument for the defendant is, that Warriner might give a note for materials, but not for money to purchase the same materials. We contend, that by authorizing Warriner to procure articles, Wood invested him with authority to procure the nc-f essary means. The object is evident, and the means of obtaining it need not be specified. Howard $• al. v. J lailiic, 2 If. Jilack. 618.
   Swift, Ch. J.

The question is as to the extent of the power of attorney. This gave it special authority to purchase articles for the cotton factory, with an agreement to be responsible for all contracts for machinery and cotton for the factory, and a general power of agency. Such power must be construed according to the apparent intent of the parties, so as to accomplish the object contemplated. No express power is given to borrow money. If that should become necessary, to perform the duty of the. agency, it will be implied. Indeed, an unqualified power to purchase, must imply the power to procure the means of making payment. If the necessary articles could not have been obtained without money, he must have the power to borrow it, to enable him to execute his agency ; and he may as well borrow money in the name of the principal, and render him liable for it, as to purchase the necessary articles on bis credit. This power of agency, then, gave the power of borrowing money, to execute the trust reposed in the agent.

I am ol' opinion that the charge was correct, and that a new trial ought not to be granted.

HoSmf.u, J.

The letter of attorney authorized Warriner ss to purchase any articles for the use of Wood’s cotton factory,” and conferred on him “ the agency of it for five years.” Under this authority, he borrowed money, and gave a promissory note for it, as attorney to Wood) and in his name. Was this note obligatory on his principal ?

As a general agent, he had the management of this part of his principal’s business. Fenn & al. v. Harrison & al., 3 Term Rep. 760. In the prosecution of the employment confided to him, a general agent may borrow money, and bind liis principal in the modes of security usual in such cases. He who commands the end, authorizes the requisite means.

The power specially delegated, likewise, authorized the execution of the note. Warriner was empowered to purchase every thing requisite for the factory. It might happen, that an article w as of indispensable necessity, and could not be procured, unless by the payment of money. Under this and similar circumstances, shall we infer that it was the intention of Wood that his agent should borrow the requisite sum, or that there should he an entire cessation of the business confided to his management ? If regard be had to the interest of the principal, and the object he had in constituting the agency, there can be no difficulty in answering this question.

It is admitted, that Warriner might purchase any article for the factory, and pledge his principal for the payment of it. What greater trust was necessary to authorize his borr rowing the money, and having executed a note in the name of his principal, to employ the sum in the specified purchase ? “ Powers of attorney must be so construed as to include all the necessary means of executing the authority with effect.” Howard & al. v. Baillie & al., 2 H. Black. 618. 620. This principle, founded on the plainest dictates of common sense, clearly warrants the construction given.

Gorin, J.

I fully concur in the opinion, that a new trial ought not to be granted. As a general proposition, it will not probably be denied, that a power created for a definite purpose, involves, of course, unless restrained by some plain qualification, an authority to use all the ordinary means, that may be necessary to accomplish that purpose. This doctrine is fully established in the case of Howard & al. v. Baillie & al. 2 H. Black. 618., with which that of Gardner v. Baillie, 6 Term Rep. 591., does not, at all, interfere,

This single rule appears to me decisive of the present case. For, a general power to purchase articles for the principal, clearly implies a right to pledge his credit, in making the purchases, that may be necessary : Since it is not to be presumed, that any one would do so useless an act, as to give his agent a formal power to expend money, destined for a particular object, and actually in the hands of the agent. In this case, however, there is no need of resorting to so general a principle: For the defendant expressly agrees, in the power of attorney, to become responsible for all contracts,” to be made by Warriner, for machinery, cotton, &c.

But it is said, that the agent, though he had power to pledge the credit of the defendant, by a. direct purchase of those articles, could not bind him by borrowing money, with which to purchase them. Now, if the articles were such as the power contemplated. — if Warriner was not in funds, to pay for them, and if lie could not purchase them advantageously on' credit, — (and all this in substance is admitted ;) the borrowing of money to procure them, seems plainly to have been one of the necessary means of procuring them, and therefore, one of the means necessary to the execution of the power. If Warriner had procured the plaintiff to purchase the same articles, by advancing the money, and had then purchased them directly from the plaintiff, on the defendants credit; it seems agreed, that the defendant would have been bound. But the difference between that case and the present, is merely formal. The substance of the transaction, and the effect of it, in the one case, would have been, as to all the parties concerned, exactly the same, as in the other : the only difference would have consisted, in an unessential and unnecessary circuity in the form of the purchase. Such a difference cannot, surely, alter the merits of the case.

The oilier Judges were of the same opinion.

New trial not to be granted.


author: Swist, -Ch. J. Edmund, J. Smith, Baldwin and Goddard, Js. HosmeR, J.

text:
    Bunce and others against Wolcott.

      New-Haven,

    November, 1816.
    THIS was a bill in chancery to redeem mortgaged premises.
    ,. ,, ,,, „ , . ,, lhc case was as lollows. hururxer Berdan. jim., on the lGth of February 17(53, mortgaged the premises to David Ecekman and Jlbraiiam hymen, of the city of Mu'-Fork, to secure to them the payment of -128/. 1⅛. (id., Mw-Vork cur-miey, on the 20th of .March next ensuing. Benton remained in possession’.mill his death, which took ¡dace on the 9th of February 17 0-1. On the 251b of dlay 1764, Ruth Benton, o7 J ' the widow of the mortgagor, took letters of administration on his estate, and soon afterwards represented it insolvent, and procured a decree of probate appointing commissioners, and limiting a time for the exhibition of claims. On the 31st of October 1765, she exhibited to the court of probate an inventory of said estate, including one or two small pieces of land, hut not including the premises, which was accepted and recorded : and no further proceedings relating to said estate are to he found on the files and records of said court. On the 31st of March 1768, said Ruth, being then in possession, conveyed to Silas Beane all her right in the premises, in fee, with covenants of warranty and seisin. On the 26th of Jlpril .1770, Beckman and Lynscn, the mortgagees, conveyed the premises to said Beane, by a like deed. On the 2d of .Sprit 17 72, Beane conveyed, in like manner, to John Bobbins. From him the premises passed, by a quitclaim deed, on the 6th of January 1778, to his son, Levi Robbins ; who, on the 31st of March 1789, mortgaged them to Thomas Seymour, but on payment of the mortgage money, on the 6th of March 1798, he obtained a reconveyance. On the 23d of November ! 803, he mortgaged them wTith other lands to C. C. Beming and C. Barnard,; and on the 31st of JSugust 1808, he conveyed them with other lands to Elihu White, to whom Beming and Barnard released their mortgage. (hi the 1st of Becember 1814, White conveyed them with other lands to the defendant. Under all these conveyances, the grantees respectively, except the several mortga gees, took immediate possession, and remained in possession until alienation.

      ⅞saving ofthestat-ute of limit* ationsregar-entry into plies only to ity as exist-' «1 at the time the right of en- : : . try accrued, and not to any supervenient disability.
    Where it appeared, on an application to redeem mortgaged premises, by the heirs of the mortgagor, more than fifty years after his death, that the premises were omitted, while other lands were included in the inventory of his estate; that his estate was represented insolvent; that the widow and the mortgagees soon afterwards conveyed the premises, by several deeds, with covenants of warranty; and that the grantee went into immediate possession, and he, and those claiming under him, had, from that time, remained in undisturbed possession ; it was held by three judges, the others waiving any decision on the paint, that from those circumstances, with the great length of time, a release or extinguishment of the equity of re* demptkm ought to be presumed.

      Ehev.ezer Benton, jun., at his death, left a daughter, Elizabeth, who was horn on the 10th of June 1736, and w as married on the 19th of January 1775, during her minority, to Daniel Bunce, one of the plaintiffs, and has ever since remained his wife.
    The cause came on to he heard before the superior court .ai Hartford county, September lerm, 1816. The plaintiffs, in support of their bill, offered evidence of title in Benton, at the time he made the mortgage. The defendant's objected to any inquiry into Benton's title, on the ground that such enquiry was irrelevant, because the right of the mortgagor to redeem could not be enforced in chancery after fifteen ’■ears from the time Beane took possession, notwithstanding the minority and coverture oí the heir at law ; and because, under the circumstances of the case, such right must be presumed to have been released and extinguished. By consent of parties, the cause was continued, without any decision upon these points, to the next term, for the purpose of taking, in the meantime, the advice of all the Judges thereon.

      T. S. Williams and Johnson, for the plaintiffs,
    contended, 1. That the rigid of redemption in equity would continue as long as a right of entry at law would subsist, under similar circumstances ; and that, if the legal title had been in Benton at his decease, bis daughter’s right of entry would not be barred, as she then was, and ever since lias been, under the disability of infancy, or that of coverture. They relied upon the decision in Eaton v. Sanford, 2 Day's Ca. 523. as an authority in point, and entitled to the highest respect. They also referred to Cotlerell v. Dutton, 4 Taun. 82G. in the English court of common pleas, where the same construction of a similar statute was recognized.

      2. That* no presumption of a release, or extinguishment 0f right, could be made against an infant, or feme-covert.

      ¡Sherman anil Trumbull, for the defendants,
    contend, 1, That the equity of redemption vas barred by an adverse possession of the mortgagees, and those who claim under them, for more than fifteen years. Skinner v. Smith, 1 Bay’s Ca. 124. Lockwood v. Lockwood, 3 Day’s Ca. 295. This rule is universal, with the exception of the rases specified in the proviso of our statute, tit. 97. c. 3. s. 4. The description of persons within the proviso, are those, and those only, who, at the time the right or title first descended or accrued, were within the age of twenty-one years, feme-covert, &c. And as to those persons, the saving is expressly limited to five years after the removal of the disability. They cited Stowel v. Lord Zouch, 1 Flowd. 355, 6. 361. 573. upon the statute of fines, 4 Hen. 4. c. 24. Doe d. George <$• ux. v. Jesson, 6 East 80. upon the statute of limitations, 21 Jac. 1. c. 16. Eager ux. v. The Commonwealth ⅝ at. 4 Mass. Rep, 182. upon a statute of that state limiting the time of bringing writs of error ; and the opinion of Smith, 3. in Bush v. Bradley, 4 Day’s Ca. 298. 307. ⅜* seq. upon the statute now in question. Upon a different construction, this would be no “ statute of repose.”
    2. That the facts in this case induce a presumption ilia! there has been a release of the equity of redemption. 2 Wms. Saund. 175. Goodtille v. Baldwin, 11 East, 488. Eldridge v. Knott ⅝ at. Cowp. 214. Peake’s Ev. 23. Jones v. TuberviUe, 2 Ves. jun. 11. 3 Cruise’s Dig. 567.

      o) It may be useful to exhibit, at one view, our statute limiting the right of entry upon land, and the corresponding parts of the English statute of 21 Jac. 1. c. 16.
      Conn. Stat. tit. 97. c, 3.

        Sect. 2. And for quieting of men’s estates, and avoiding of suits : It is enacted, &c.
      Stat. 21. Jac. 1. c. 16.
      Sect.. 1, For quieting of men’s estates, and avoiding of suits, be it enacted, &c. that all writs of formedon in. descender, formedon in remainder, and formedon in reverter, at any time hereafter to be sued or brought, of, or for any manors, lands, tenements or hereditaments, whereunto any person or persons now hath or have any title, or cause to have or pursue any such writ, shall be sued or taken'within twenty yeara next after the end of this present session of parliament And after the said twenty years expired, no person or persons, or any of their heirs, shall have or maintain any such writ, of or for any of the said manors, lands, tenements or heredita-ments ; and that all writs of formedon in descender, formedon in remainder, formedon in reverter, of any. manors, lands, tenements or other heredita-ments whatsoever, at am1 time hereaf-

        That no person or persons that now have any right or title of entry into any lands, tenements or hereditaments within this colony, now withheld from him or them, shall thereinto enter, but within three years after the tenth of June next, or within fifteen years next after any other title of entiy accrue : and-that no person or persons shall, at any time hereafter make entry, into any lands, tenements or hereditaments within this colony, but within fifteen years next after his or their right or title, which shall hereafter first descend or accrue to the same ; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disenabled from such entry after to be made.

        Sect. 4. Provided nevertheless, that any person or persons that is or shall be entitled to, or that hath or shall have such right or title of entry into any lands, tenements or hereditaments in this colony, be, or shall be at the time of the said right or title first descended, accrued, come or fallen, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas, that then such person and persons, and his and their heir and heirs, shall or may, notwithstanding the said three years, or the said.fifteen years be expired, bring his action, or make his entry as he might have done before this act; so as such person or persons, his or their heir or heirs, shall within five years next after his or their full age, discoverture, or coming of sound mind, enlargement out of prison, or coming into this country of J'few-England, or territory of .Yen'-York, or death, take benefit' of and sue forth the same, and at no time after the said five years. ter to be sued, or brought by occasion or means of any title or cause hereafter happening, shall be sued or taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years :
      And that no person or persons that now hath any right or title of entry into any manors, lands, tenements, or hereditaments now held from him or them, shall thereinto enter, but within twenty years next after the end of this present session of parliament, or within twenty years next after any other title of entry accrued; and that no person or persons shall, at any time hereafter, make any entry into any lands, tenements, or hereditaments, but within twenty years next after his or their right or title, which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made; any former law or statute to the contrary notwithstanding.

        Sect. 2. Provided nevertheless, that if any person or persons that is or shall be entitled to such writ or writs, or that hath or shall have such right or title of entry, be, or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of one and twenty years, feme covert, non compos mentis, imprisoned or beyond the seas, that then such person and persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action or make his entry as he might have done before this act; so as such person and persons, or his or their heir and heirs, shall, within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same, and at no time after the said ten years.

   Swist, -Ch. J.

Courts have gone great lengths in presuming grants, where it conduced to justice, and quieted men in their possessions.

Mere length of time less than what is prescribed by statute, and in eases where the statute operates, can never be a presumptive bar. Length of time, accompanied by circumstances, which render it probable a grant -was made, may be a presumptive bar. So length of time, unaccompanied by such circumstances, may be a bar where there is no statute of limitation, in analogy to statutes in similar cases. Where a statute limits a time, it is a peremptory bar, and may be pleaded; but where there is no statute, length of time is matter of presumptive evidence to be left to the jury, and may he rebutted by circumstances which go to disprove the probable existence of a grant. No presumption of a grant could be made where it would be impossible ; as where the supposed grantor had no legal right or capacity to make the grant.

In this case, it is not necessary to presume any act to have *,ecn d°nc by an infant, or feme-covert, to quiet the long possession of the defendant, and those under whom he claims. From the circumstance that the land in question was not comprehended in the inventory of Benton’s estate, it is highly probable that he had released the equity of redemption in his lifetime, and the deed had been lost. If he did r:nt release it, then it is probable, as the estate was insolvent, it was disposed of in due course of law for the payment of the debts, and the evidence has been lost. This is coniirmed hv the circumstance, that the mortgagees gave deeds of warranty of the land, and the purchaser went, info immediate possess ion ; which would not probably have been done, if the title had not been quieted. To this is to be added the great length of time which has elapsed ; and it cannot he supposed, that the petitioners, some of whom were sui juris, would have, been so long silent, if it had been understood that they liad any right. Under these circumstances, there can he no doubt: the equity of redemption was extinguished ; and though there is no proof of a conveyance, yet we are warranted to presume it.

With respect to the other point, it may be remarked, it has been long recognised in this state, that a statute of limitation can never begin to run during the existence of a disability, though when it once begins, it will not be interrupted by an intervening disability. If a female should he an infant w hen the title accrued, ami should intermarry before she comes of age, she would he within the saving of the statute till she should become discovert; but if being of full age when the title accrued, she should intermarry within fifteen years, she would not be within the proviso of the statute ; so that the same person, in certain cases, could take advantage of two successive disabilities. This doctrine has been sanctioned by a single decision in this Court; (Eaton v. Sanford, 2 Day’s Ca. 523.) but, I apprehend, it is not warranted by a sound construction of the statute. The saving danse is expressly limited to disabilities existing at the time the title accrued. Nor is the proposition correct, that the statute never begins to run against a person under a disability. suppose that the party claiming is an infant when the title accrues ; if fifteen y ears run duping his'infancy, he has but Jive years after he comes of full age to make his entry. This clearly shews, that the statute operates against him during the disability. Indeed, the statute always begins to run against a man the moment he is disseised, whether he is under a disability or not : all the difference is, that an additional tittic is allowed where a disability exists, after the removal of it. The correct role, sanctioned by all the authorities, is, that when the statute once begins to run, a supervenient disability will not stop it. Hence it follows, that no person can ever take the benefit of two successive disabilities : a construction strictly conformable to the letter and meaning of the statute. But in the construction heretofore given in this slate, a succession of disabilities can be united ; oh! claims may be preserved, till all evidence respecting them is obliterated ; and the beneficial objects of the statute may be defeated. It appears to me, that the case of Eaton v. Sanford is a departure from principle j that the construction given to the statute is not warranted by the fair import of it; and that it ought not to be considered as possessing the author] (y of a precedent.

I am of opinion, on both points, that the petition ought not lo be sustained.

Edmund, J.

Two questions are presented for the consideration of the court. One is, whether from lapse of time, and under all the circumstances attending this case, the court may and ought to presume a grant, in order to quiet the respondents in their possession ? I do not consider it necessary to del ermine this question, as the court are unanimous on the, other ; and that is sufficient to decide the case.

The other is, whether the proviso, or saving in the statute of limitations against the right of entry into lands, &c. tit. 07. c. 3, extends to supervenient disabilities, or to such only as exist at the time the right of entry accrues ?

To decide this question, there appears to me no other difficulty than that which arises from the necessity to deny the propriety of a former decision, (Sanford v. Eaton, 2 Day’s Ca. 523.) — a necessity always to be regretted $ orto depart from what I considered, at the time the ease of Bv.sf; and wife & al. v. Bradley, 4 Day’s Ca. 298. was argued, ami still consider, as the plain and obvious import of the statute. By the second section, it is enacted, that “ no per son or persons shall, at any time hereafter, make entry into any lands, tenements or hereditaments within this colony, but within fifteen years next after his or their right or title, which shall hereafter first descend or accrue to the same, Ac.” In this section of the act there is no saving clause for disabilities of any sort; nor in any other part of the statute is there any saving against its positive provisions, except what is to be found under the proviso which forms the fourth section. To this, then, we must look, to discover, not who ought to he, but who arc, the subjects of it, and how far their exemption extends. Examined with this view, it appears to me difficult to perceive how it can possibly be construed to apply or extend to any other than those, who, at the time of passing the act, had, or thereafter should have, “ a right or title of entry into any lands,” Ac. and who be” (that is, at the time) {< or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of twenty-one yearsor shall, at the time of said right or title first descended, accrued, Ac. be under some one or more of the disabilities enumerated, and shall prosecute their claims within five years next after the disability or disabilities, which existed at the time the right or title-first descended, Ac. are removed. I say, “ disability or disabilities,” because a person may be under several of the disabilities specified, at the time the title accrues; and in such case, the person so situated may avail him or herself of either ; and it will always be a suificieut answer to an objector to such an election, to say, the disability on which 1 rely is pointed out by the proviso : it existed at the lime my right or tille accrued ; I have prosecuted my claim within the time allowed after its discontinuance, and come within both the letter and spirit of the law. But- where a single disability only exists at the time the right of entry accrues, and the five years after the discontinuance of llial disability have elapsed, the statute immediately attaches, and the party so neglecting to prosecute can never avail himself of any other or supervenient disability, because the statute recognizes no other than such as actually existed, or should exist. at the time when the right of entry first commenced ; and every after disability may be said to want, and is, in fact, destitute of that essential qualification.

I should advise that judgment be given for the respondent.

Smith, Baldwin and Goddard, Js.

concurred with J udge Edmond in waiving a decision upon the question of presumption | and were also of opinion with him and the rest of the court, that the suit not having been commenced within five years after the termination of the disability which existed at the time the title first accrued, no supervenient disability would save the case from the limitation of the statute.

BkainaRD, J. Concurred with the Chief Justice on both points.

HosmeR, J.

The petitioners, heirs of the mortgagor, make their application to redeem mortgaged estate. The defendant, a purchaser for valuable consideration, opposes on this ground, that the mortgagees and their assigns, have, for almost half a century, been in the undisputed possession of the estate, using it as their own. It is stated by the parties, Shat when the title first accrued, Elizabeth Bunce, one of the petitioners, was a minor, and afterwards, before she arrived to lawful age, intermarried with her present husband, and has remained under coverture ever since.

If Elizabeth was, by law, obliged to enter on the premises, within five years after her attaining the age of twenty-one, her right has long since been barred. The statute for quieting men’s estates and avoiding suits, having limited the period of entry on property withheld, to fifteen years, by w ay of exception provides, that if the person w ho has right of entry shall, at the time of the right first descended or accrued, be within the age of twenty-one years, feme covert, non eompos mentis, imprisoned, or beyond seas, such person shall iiave five years in w hich to make entry, or bring his action, after the removal of his disability. Of consequence, it lias been argued by the petitioners, that as Elizabeth, at the descent of the title in her, was a minor, and before she attained full age, intermarried, and has ever since remained under coverture, the law has not commenced its operation against, licr. This supposed consequence I utterly deny, j£ js a conclusion without: any promises to authorize it, The proviso of The statute, regards, solely and exclusively, the disabilities existing at the time, of the right or title first accrued. “ If this disability be once removed,” to use the J words of rIshhurst, J. “ the time must continue to run, notwithstanding any subsequent disability, either voluntary or involuntary.” This construction is authorized by ⅜lie strongest; reasons. It is in accordance with the explicit and intelligible expressions of the statute, which, in so many words, alone embrace disabilities existing at the time of the. right or title first desecrated or accrued. At the same time, it best comports w ith private .justice anti public convenience. It allows a sufficiently extended range to the act made fee quieting possession, and preventing unreasonable delay in the assertion of claims. It. a\oids the intolerable inconvenience of accumulated successive disabilities, which, for an interminable period, might subvert, titles apparently well established, and produce the most: ruinous instability. And what is of no small importance, it is in perfect conformity with the judicial decisions of other states. 3 Bac. Mr. 206. (Wils. edit.) Stowel v. Lord Zouch, Plowd. 356. Doe d. Count Durourc v. Jones, 4 Term Rep. 300. Doe d. George & ux. v. Jesson, 6 East, 80. Eager & ux. v. Commonwealth al. 4 Mass. Rep. 182.

From the facts agreed on, T am likewise of opinion, that the Court is authorized to presume a grant of the equity of redemption to the original mortgagees, or to Silas Deane. their grantee.

The mortgage in question was made in February 1765. In the year 1764, Ebenexer Benton jon., the mortgagor, died. Ruth Benton, his wife, became administratrix of his estate, and represented it insolvent. In March of the year 1768, she, by a deed of warranty, conveyed the estate mortgaged, so far as was in her power, to Silas Deane. In the year 1770, the mortgagees, by a similar deed, granted the premises to the same Silas Deane, who immediately, took the possession. From that period to the present moment, lie, and his assigns, have remained in the possession, uninterruptedly, and without a question. From these facts the inference is fairly warranted, that the equity of redemption was transferred. After the lapse of fifteen years, if the mortgagee is lit possession, the mortgagor is riot permitted to redeem, unless the deiav is satisfactorily accounted for. Skinner v. Smith, 1 Day’s Ca. 127. On the principle of quieting possession, for the furtherance of justice and the sake of peace,” the court, after a considerable length of time, will presume a grant. Eldridge v. Knott & al. Cowp. 214. Knight v. Halsey,, 2 Bos. & Pul. 206. 1 Pow. Mort. 408. Jackson, d. M’Donald v. M’Call, 10 Johns. Rep. 377. Nothing can be more reasonable. For example, “ it cannot be supposed that any man would suffer his neighbour to obstruct the light of his windows, and render his house uncomfortable, or to use a way with carts and carriages over his meadows, for twenty years successively, unless some agreement had been made between the parties to that effect, of which the usage is evidence.” Fhill. Ev. 120. As little can any' one presume, that for more than forty years, the mortgagees and their assigns, should have possessed the premises exclusively, and absolutely, as their own ; that it should have been sold by deeds of warranty, soon after the death of the mortgagor, by Ms wife and others ; and from that period to the present, that the heirs of the mortgagor should have looked on, without the interposition of any claim ; and notwithstanding this, that the equity of redemption should remain. Long continued possession implies title. If there were a different right, the probability is, it would have been asserted. It is for the interests of justice that it should be so ; and a conviction is produced by it, which the mind cannot resist. It would be monstrous, if nearly half a century having elapsed, after valuable improvements and repeated purchases, the title, apparently' so stable, should be subverted by a latent claim, in opposition to every reasonable calculation. Nothing short of statute disabilities, or other circumstances equivalent, ought, under such circumstances, to repel the presumption of a grant.

The petitioners rely on the impossibility of the thing. Although the estate does not of record appear to have been insolvent, l think it, may be inferred, and that the deed with warranty given by the administratrix, was intended to transfer the equity of redemption. But, let it be admitted, that this supposition is incorrect, and that the object of the deed was, to grant the estate of Ruth, bey ond the boundaries of the mortgage ; what opposes the possibility, that the equity was released to the mortgagees by the mortgagor ? This would he in perfect accordance with their grant of the premises in fee simple, to Silas Beane.

Resides, after Elizabeth Bunce attained the age of twenty-one, which was in the year 177", may not a deed from the heirs to the tenant in possession, he fairly presumed i Nearly forty years have elapsed, on which to found this presumption.

To this it is replied, that Elizabeth Bunce was under cov-erture. What then ? This, under the positive provisions of the statute, if it existed when the title first descended, would have constituted a disability. But, upon the point of presumption, 1 do not know that it is entitled to any weight. Elizabeth and her husband were capable of conveying the property ; it was their interest to do it, on sufficient consideration ; and the facts in this case, warrant the presumption of their having done it.

Trumbull, J. being related to the defendant’s grantor with warranty, and Gould, J. having been of counsel in the cause, gave no opinion.

Judgment to be given for the defendant.


author: Swirr, Ch. J.

text:
    Newell against The State of Connecticut :

      New-Haven,

    November, 1816.
    IN ERROR.
    THIS was an information against Newell, for striking and emitting bills, to be used as a medium of trade, contrary to the statute. The offence was alleged to have been committed in September, 1814. The information was exhibited to a justice of the peace, and a warrant issued, in August, 1815. In May, 1816, the defendant was arrested, examined, and a recognizance taken for his appearance at the jjext superior court. At the superior court, the defendant pleaded, that the information was not exhibited w ithin one year after the offence w7as committed. The replication averred, that an information was, within one year, exhibited by the state’s attorney, to a justice of the peace having cognizance of the offence. To this replication there was a demurrer. The superior court adjudged the replication sufficient 5 whereupon this writ of error was brought.

      Where an information for an offence, by reason whereof a forfeiture belongs to the treasury of the state, was presented to a justice of the peace, and a warrant issued thereon, within one year from the commission of the offence, it was held that the offence was not barred by the statute of limitations, although the offender was not arrested, examined or tried, until after the expiration of the year.

      Edwards and T. 8. Williams, for the plaintiff in error,
    contended, that the prosecution was barred by the statute, which provides “ that no person shall be indicted, prosecuted, informed against, complained of, or compelled to answer, before any court, assistant, or justice of the peace, within this state, for the breach of any penal law, or for other crime or misdemeanour, by reason whereof a forfeiture belongs to any public treasury, unless the indictment, presentment, information, or complaint, he made aud exhibited within one year after the offence is rommitied.” Tins information is not to be considered as exhibited until it came before the. court having jurisdiction of the offence. Whether the accused he guilty of the offence charged, the justice has no authority to determine : he can only enquire whether there be sufficient evidence to hold to trial. The signing and issuing of the warrant do not prevent the limitation taking effect: they are not the acts required for that purpose. The question before a grand-jury, and before a justice of the peace, is the same, viz. is there probable cause ? But a complaint laid before a grand-jury by the attorney, is not exhibited within the meaning of the statute. Our construction will not afford impunity to offenders ; inasmuch as the attorney may exhibit an information to a court having jurisdiction of the offence, and such court will issue a warrant, by which the accused, whenever found, may be apprehended.

      E. Perkins, for the state,
    relied upon the statutes authorizing informing officers to exhibit complaints and informa-tions to justices of the peace, and empowering them to issue warrants, to examine, and to take recognizances for the appearance at court, of persons accused. When an informing officer has done his duty, by presetting to the appointed magistrate, a complaint or information, the object of the statute is obtained, and the limitation ceases to run. A complaint made to a grand-jury has no legal efficacy. When a bill is found, and returned to the court, the analogy commences between bills of indictment, and complaints to justices of the peace. Then the subject of the charge has come regularly before a court authorized to cause the accused to be arrested, in one case, for the purpose of trial, in the other, for examination.

         St at. Conn, tit. 101, c. 1. $. 1.

   Swirr, Ch. J.

The question is, what is intended by exhibiting a complaint, or information, in criminal cases. The presentment of the complaint, signed by some proper informing officer, to a court or public officer, who has authority to receive the same, and to issue a warrant te apprehend the offender, and bring him to trial, must be a compliance with the law. In this case, a justice of the peace had power to cause the offender to be apprehended; and though be had not final cognizance of the offence, he had pow er to take proper measures to cause him to appear before a court of competent jurisdiction to try him. To exhibit the information to such public officer, is a strict and literal compliance with the statute; and such has been the immemorial and uniform usage in the state. And unless such power is given to single ministers of justice, a very convenient opportunity would often be afforded to offenders, to escape from justice.

I think there is no error in the judgment complained of.

In this opinion the other Judges severally concurred.

Judgment affirmed.