:, 2 Conn. 324 (Conn. 1817)

Swift, Ch. J.

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

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

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

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

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

is perfectly clear, that Coleman had a just and lawful claim against Wolcott, which he could not enforce at law, by reason of the. fraudulent conduct of Taylor. He could, then, have applied to a court of equity, and have obtained relief, bad not Wolcott procured the release. Here, then, was a violation of a right, that could have been made effectual, it must, then, be an actionable injury.

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

The case, also, of an assigned note not negotiable, is, in all respects, analogous. The promissor has a legal right to pay the money to the assignor, and his release is valid : yet in truth and justice, the money belongs to the assignee, and

if the promisor, after notice of the assignment, and the bankruptcy of tiic assignor, pays the money to him, he does an act by which he, defrauds the assignee of a just, debt : and though he may have a legal right to make such payment, and the note becomes thereby discharged, yet equity, on the ground that it is wrong to exercise a legal power to defeat a just claim, has interposed, and compelled him to pay it to the assignee j and this principle was afterwards recognized at law. The wrong consists in knowingly paying to one man, money belonging to another, by which he is subjected to the loss of it. Ami the law, on the ground that for every wrong there is a remedy, gives a right of action.

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

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

As to the other question, it may be remarked, that though in England the rule has prevailed, that where there are several counts in a declaration, and a general verdict is found, if any of the counts are bad, the verdict shall be set aside, because it cannot be known, that the damages were not assessed on the bad counts ; yet in this state the practice has been different; and it lias ever been considered to be the rule, that if any of the counts are good, it shall he presumed the

damages were assessed on those counts, and the verdict shall stand» The most eminent jurists in England have lamented that the rule was ever established títere ", as verdicts have often been set aside upon mere technical objections. As we have experienced no inconvenience from our practice, it would be strange for us to alter it, and borrow a rule from a country where its existence has been regretted. In a case,, where there are good and bad counts in a declaration, if the defendant wishes to question the sufficiency of any of them, verdicts can be taken on each count separately, which will give him an opportunity : and unless such reason should exist, it will be found most convenient, in practice, to allow the verdict to be given, generally, on all the counts, where they are for the same thing.

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

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

J udgment affirmed.