
    Ezra Lockwood against Josiah Smith, Amos Weed, Thaddeus Bell, jun. and William Waterbury, 4th.
    The selectmen of the town of S., pursuant to the provisions of the statute ⅛„⅛ ordering of idiots, &c-, took into their hands the person and estate of A, an impotent person, and appointed B. as then-agent to manage the same; B. accepted the trust, and was re appointed from year to year, for a number of years, by the several boards of select men, of which one or more of the defendants always constituted a part, and in the execution of this trust expended much time and money. In an action of indebitatus assumpsit brought by B against the select men, for the time being, of the town of S', to recover the amount of monies expended in the execution of Ins trust, and the value of his services; it was held, that a statement of the debts and credits of the estate of A. rendered by the plaintiff' to a former board of select-men, accompanied with a certificate of a subsequent board, signed only by one of the defendants, with o'hers, as select-men, whereby such statement was approved by such subsequent board, was not admiss ble, either for the purpose of shewing, that die defendants continued to hold and manage the person and estate of A., or that die plaintiff acted as their agent in making disbursements, &c.
    Held also, that a writing on a separate piece of paper, signed by each of the def-nd-ants and certain other persons, as selectmen, refining to the sets of i fo-me. !m •} of select-men, of the following tenor, “ Stamford, February 15th, 18.18, e die« b ■ bers, select-men of the town of Stamford, considering tha1 the misin.-ii. ge., „i, 1 husbandry of the above named A., is likely to reduce him to want, do * i of the doings above described, by the said G. .!/, S. K. and T B., '• • 1 t admissible.
    Held also, that parol evidence was not admissible to shew to what partic f the select-men, such writing referred.
    Held also, that evidence, shewing, that the several boards of select men prior to the time when the defendants came into office, approved the conduct of ⅜ m foe execution of his trust, and that he acted according to their directions, was inadmissible.
    Held also, that the confessions of one of the defendants, made out of cour, i-uu'.d not be given in evidence, for the purpose of proving the facts alleged in the declaration
    MOTION for a new trial.
    This was an action of indebitatus assumpsit. It was stated in the declaration, that on or about the 13th day of December, 1804, Amos Weed and Thaddeus Bell, jun., two of the defendants, together with Sylvanus Knapp, George Mills and time being ; and that they applied to the plaintiff, and represented to him, that as select-men of the town, by the advice and direction of Ebenezer Davenport, Esquire, the next justice of the peace, in pursuance of the statute, entitled “ An act for relieving and ordering of idiots, impotent, distracted and idle persons,” they had taken into their hands and custody, tiic person, family, lands, goods, chattels and credits of one Alal Knapp, an inhabitant of the town of Stamford, who was then likely to be reduced to want, by idleness, mismanagement and bad husbandry ; and requested the plaintiff, for them, and in their behalf, to take, dispose of, improve and manage the lands, goods, chattels and credits of the said Amos Smith, were select-men of the town of Stamford, for the 
      Abd, for the benefit of himself ansi his family; ami that the plaintiff, in pursuance of such rctpicst, took and received such lands, &x., and did dispose of, improve and manage the same, for them, and in their behalf, until the lime oi the animal town meeting in the town of Stamford, in the same month of Dtccmbtr, 180-1; at which meeting, Tkaddevs Kdl, jun. Amos If'red and Josiah Smith, three of the defendants, and George Mills and Isaac Lockwood, were appointed seiect-men of the town; and that Amos Weed and Josiah Smith, two of the defendants, together with George Mills, Isaac Lockwood and Nathan Weed, were appointed select-men of the town, for the year next ensuing the annual meeting, in December, 1805 ; and that the plaintiff, at the special instance and request of the persons composing the several hoaids of selectmen, last mentioned, continued to manage the property and affairs of the said Abel Knapp, from year to year, until the annual meeting of the town, in December, 1800; at which meeting, the defendants were appointed select-men, and continued to be the lawful select-men of the town, for the two years next succeeding, they having been re-appointed to that office, at the annual meeting in December, 1807 ; and that the plaintiff, at the special instance and request of the defendants, for them, and in their behalf, did dispose of and manage the property of the said Abel, from the month of December, 1806, until or on or about the 1st day of September, 1808.
    It was also alleged, that Abel Knapp brought an action of trespass against the plaintiff, for his withholding from him, one cow, one swine, and two feather beds, being a part of the personal property received by the plaintiff, to manage and dispose of, as before mentioned ; on which action, before the Superior Court, Sinai judgment was recovered against the plaintiff, for 4 dollars damages, and for 38 dollars, 34 cents, costs of suit; for which execution was issued accordingly.
    It was alleged further, that among the goods, chattels and credits received by the plaintiff, as before stated, was a certain promissory note, executed by one Abraham Lockwood, and made payable to Abd Knapp, for about 122 dollars, for the recovery of the value of which, an action of trover mas brought against the plaintiff, and upon a trial before the Superior Court, judgment was rendered in his favour; and that upon motion of the said Abel, by advice of (he Supreme Court of Errors, a new; trial was granted, on the ground, that the defendants had no right to the possession of the note; and that thereupon, the plaintiff, by direction of the defendants, suffered a default, and judgment was rendered against him in such action, for 138 dollars, 23 cents, damages, and for 49 dollars, 57 cents, costs of suit, and that execution was duly issued thereto ; and that the plaintiff was compelled to pay the amount of the judgments before mentioned, together with 0 dollars, 50 cents, for officer’s fees and executions. The actions before mentioned, were instituted for the purpose of trying the legality of the proceedings of the select-men, in taking into their hands the management of Abel Knapp’s property and affairs.
    It was also alleged, that prior to the final determination of the actions before-mentioned, Abel Knapp requested both the plaintiff and defendants, to deliver to him, the possession of his lands, goods, &c., and proposed, upon such delivery, to withdraw the actions against the plaintiff; that the de-ier.dants refused to accede to such proposition, and would not consent that the plaintiff should deliver up the property, and directed and requested him to defend in such actions, until the opinion of the Supreme Court of Errors, concerning their right to hold and manage the property of the said Abel, should be fully known, and until final judgment should be rendered therein ; and that thereupon, the plaintiff, at the special instance and request of the defendants, and in their behalf, employed much time in making preparation for the trial of such actions, and incurred great cost and expense in employing and paying attornies and counsellors, and making defence in such actions, before the County and Superior Courts, and the Supreme Court of Errors, and in paying court and clerk’s fees, paying and supporting witnesses, &c. ; and that he had devoted much time and labour in taking care of the property and estate of the said Abel, and expended large sums of money for the support of himself and his family, amounting in the whole, to the sum of 1050 dollars, 20 cents ; to his damage, 1400 dollars.
    The cause was tried before the Superior Court, upon the plea of non-assumpsit, and the jury returned their verdict for the defendants.
    On the trial, no express promise was claimed to have been made by the defendants. The plaintiff proved, that the several persons mentioned in tiie declaration, were select-men of the town of Stamford, for the several years, as therein slated; and for the purpose of shewing, that he was the agent of the defendants, lie gave in evidence, a writing, subscribed by two of the present defendants, and sundry other persons, as selectmen of the town, dated the 10th day of December, 1804, wherein it was declared, that they had taken into their care, the person, family, and estate of Ahil Knaip, in pursuance of the provisions of the statute for relieving and ordering of idiots, See. ; and by which they appointed the plaintiff, their agent, to take care of and manage his person, family, and estate. He also read in evidence, a copy of (he record of the proceedings before the magistrate, before whom Knapp was brought, for examination. The facts relating to the suits instituted by Knapp against him, as alleged in the declaration, were also proved.
    And for the purpose of shewing, that the defendants, when all in office, continued to hold the said Abel Knapp, and his estate; and also, that the plaintiff, as agent of the defendants, made the disbursements and rendered the services in the declaration alleged ; the plaintiff offered in evidence, a certain account of the debts and credits of the estate of the said Abel Knapp, shewing what was due to and from his estate, in the course of his former dealings with sundry individuals ; and also a certificate thereto annexed, signed by Isaac Lockwood, Nathan Weed, George Mills, and Josiah Smith, (Smith being one of the defendants,) select-men of the town of Stamford, dated December 16th, 1806, in the words following ; “ We, the subscribers, have examined the foregoing account, exhibited by Ezra Lockwood, overseer of Abel Knapp, and do approve of the same,” The defendants objected to the admission of this evidence, on the ground, that the certi-Scale tended only to prove a contract between the plaintiff and one of the defendants, and three other persons who were, at this time, select-men, and not between him and the defendants ; and also, on the ground of irrelevancy. The plaintiff contended, that the evidence was relevant, as it proved the assent of Smith, one of the defendants, to the plaintiff’s agency, and his acknowledgment that Abel Knapp was under the care of the select-men. But the court adjudged the evidence to be inadmissible.
    On the 5th of December, 1804, George Mills, Sylvdnus Knapp and Thaddeus Bell, jun. (he being one of the defendants,) select-men of the town of Stamford, gave notice in writing, that (hey had taken the person and estate of Abel Knapp, into their care, according to the provisions of the statute; which notice was, on the same day, lodged in the town clerk’s office. This writing was, by the plaintiff, given in evidence to the jury.
    The plaintiff also offered in evidence, a certain other writing subscribed by all the defendants, and also, by David Smith, 3d. and Isaac War dwell, in the words and figures following, vis. “ Stamford, February 15th, A. D. 1808. We the subscribers, select-men of the town oí Stanford, considering that tile mismanagement, and bad husbandry of the above named Abel Knapp, is likely to reduce him to want, do hereby approve of the doings above described, by the said George Mills, Sylvester Knapp, and Thaddeus Bell, jun.” This writing was on a separate piece of paper from the one last before mentioned; and it was proved, that such writing was lodged on file, in the town clerk’s office, on the 15th day of February, 1808. The defendants objected to the evidence, on the ground that it did not appear to what the writing referred ; and also on the ground of irrelevancy. The plaintiff, for the purpose of explaining the writing, offered to prove by parol, that the paper last-mentioned, was made and subscribed by the defendants, with reference to the other writing signed by George Mills, Sylvamis Knapp and Thaddeus Bell, jun.; and claimed, that with such explanation, the evidence was proper, to shew, that Abel Knapp was continued under the ear:: of the defendants: But the evidence was, by the court, adjudged to be inadmissible.
    The plaintiff also offered in evidence, the deposition of George Mills, who was one of the select-men of the town of Stamford, from December, 1803, to December, 1806, wherein the proceedings of the select-men, relating to the care and management of the perstfn and estate of Abel Knapp, were detailed; and wherein it was staled, that on Ihe 13th day of December, 1804, the select-men appointed and empowered ihe plaintiff, as their agent, to manage his person, family and estate, subject to their advice and control, as to the mode of management; and that the plaintiff, from time to time, during the three years, in which, the deponent was in office, made, report of his doings, to the selectmen, and that the conduct of the plaintiff was by them approved; and that some time during the period just mentioned, the plaintiff gave notice to the deponent, that he had been sued for withholding some part of Abel Knapp’s property, and applied to him for direction and advice, in relation to the subject matter thereof; and that the deponent, as select-man, advised and directed him to defend against such suit, and to retain Knapp’s property in his hands; and that the plaintiff was, by the selectmen, annually reappointed, as their agent, during the period last-mentioned, to superintend and manage the person and estate of the said Knapp ; that the select-men left it, generally, with the deponent, to advise and direct the plaintiff in the management of Knapp’s concerns, and that they neve disapproved of his conduct, until after the costs had accrued in the suits before mentioned. This evidence was objected to, by the defendants, as being irrelevent, and was adjudged, by the court, to be inadmissible.
    The plaintiff also offered to introduce the deposition of Amos Weed, one of the defendants, taken on the 24th of September, 1810, to be used in another cause, fort he purpose of proving his confessions, relating to certain facts therein stated. It was stated in the deposition, that the deponent was one of the select-men of the town of Stanford, from the year ¡304, until the year 1810 ; that in the year 1804. the selectmen (cok into their care and possession, the person and óslate of Abel Knapp, and put the same into the hands of the plaintiff, and appointed him their agent; that the plaintiff .acted as their agent, in the management of Knapp's concerns, and frequently called on the soh-ct-mcn for direction and advice, concerning the execution of his trust; that the selectmen did not disapprove of his conduct until afler a judgment was rendered against him, in favour of Knapp ; that after the rendering of such judgment, the select-men did not agree as to the propriety of the plaintiff’s proceedings; and that they refused to accede to certain propositions for a settlement made by Knapp, The evidence last recited, was ruled out by the court. The plaintiff moved for a new trial, on the ground, that the court erred in rejecting the evidence by him offered on the trial, as before stated; which motion was reserved for the opinion of the nine Judges.
    
      N. Smith and R. M. Sherman, in support of the motion.
    
      Daggett, contra.
   Edmond, J.

A new trial is claimed, in this case, on the ground, that the Superior Court erred in rejecting the testimony recited in the motion. The plaintiff, by his declaration, founds his right of recovery, upon services by him performed, and monies expended in certain law suits, in which he was involved, in consequence of the performance of those services, at the special instance and request of the defendants ; by which, he alleges, that the defendants became indebted to him, and being so indebted, assumed and promis- < d, &c.

The promise stated, is a joint promise of the defendants. On the trial of the case, it was not contended, that any express promise was made by the defendants to the plaintiff: And the testimony offered by the plaintiff, and rejected by the court, did not, in my opinion, conduce to prove any one fact, or set of facts stated in the declaration, which would render the defendants jointly liable ; or from which, if true. ⅛6 *aw would imply a promise, or from which, the jury might legally infer a promise, on the part of the defendants. The evidence vías, therefore, wholly irrelevant, and was properly rejected.

I would not advise a new trial.

Mitchell, Ch. J., Reeve, Swift, Trumbull, Smith, and Brain ard, Js., severally concurred in this opinion,

Baldwin and Ingersoll, Js., dissented.

New trial not to be granted.  