Town of Stonington v. Powers , 37 Conn. 439 ( 1870 )

Poster, J.

The note on which this action is brought was given in payment of a fine and costs imposed on the defendant, Powers, by a justice court, for a violation of sundry provisions of the act relating to spirituous liquors. The facts are detailed by the judge who tried the cause below, and reserved the question as to what judgment should be rendered for the advice of this court.

Payment of this note is resisted mainly on two grounds. 1. That it was without consideration; and 2. That such a contract is contrary to the principles of sound policy, and therefore void.

It cannot, we think, be truly said that there was no consideration for this note. The imposition on the defendant, Powers, by a court of competent jurisdiction, of a fine and costs for a violation of law, created a legal obligation to pay, and a legal obligation to do a thing furnishes a sufficient consideration for a promise to do it. Besides, Powers was in the custody of the officer and was about to be committed to jail; on giving this note he was discharged; it procured him his release. Any benefit to the party promising is. a good consideration; what benefit is greater than liberty to one who is deprived of it ?

If there is any infirmity in the plaintiff’s case, sufficient to defeat a recovery, it is because the contract is void as contrary to the principles of sound policy. This point has been pressed upon us by the defendant’s counsel with great ingenuity and ability, and many authorities have been cited to sustain their position.

The cases most analagous to the case at bar, which are cited on the part of the defendant, and on which most reliance seems to be placed, are the cases of Kingsbury v. Ellis, 4 Cush., 578, and Bills v. Comstock, 12 Met., 468. Notes were given in these cases for the payment of fine and costs, and the court held them void as contrary to sound policy. Each of these cases is distinguishable from the case before us in several material particulars.

The fine and costs in this case belonged to this plaintiff, the town of Stonington. Gen. Statutes, page 291, sec. 262, and page 297, sec. 295. Had the defendant been committed to jail for the non-payment of this fine and cost, he might, under certain circumstances, have been released by the State Attorney, he talcing his note therefor with security for the payment, if such security could be obtained. Gen. Statutes, page 292; sec. 268. The officer appears to have acted in entire good faith, and took this note, with a surety whose responsibility is not questioned; and the town approved and ratified the act.

It is conceded that the officer would have been bound to discharge his prisoner had he tendered payment of the fine and costs. Now, instead of offering bank notes or legal tender notes, he offered this note, payable presently. We think it would be going too far to hold this note, under all these circumstances, void, as being a contract contrary to sound policy. We think sound policy requires us to sustain it as a valid note. The rule that an executive officer should make service, according to its tenor, of a lawful precept put in his hands, is, no doubt, a salutary one. We are not disposed to relax it. Every officer who varies from his precept acts at his peril. In this case we think the precept was substantially executed, and many cases might be cited to show that this was a good and valid note. Beeley v. Wingfield, 11 East, 46; Sugars v. Brinkworth, 4 Campb., 46; Pilkington v. Green, 2 Bos. & Pul., 151; Kirk v. Strickwood, 4 Barn. & Adol., 421; S. C., 1 Nev. & Man., 275.

In Pilldngton v. Green, which was an action on a note given under circumstances almost identical with those detailed in this case, the same defence was interposed; the plaintiff obtained a verdict and it was allowed to stand. Lord Eldon said — “ The note, having been accepted by those who were interested in it, has a sufficient consideration to support it.” In Sugars v. Brinkworth, very similar in its character to the case on trial, the plaintiff recovered. Lord Ellonborough said — “ I will look to such a transaction with extreme jealousy, but the party to whom indulgence has been laudably extended is not to evade his engagements by attempting to criminate his benefactor.”

The Superior Court is advised to render judgmént for the plaintiff.

In this opinion the other judges concurred. •