
    June, 1808.
    Jesse Root, jun. against Thomas Bull, Ezekiei, Williams, jun. Spencer Whiting anti John Russ.
    In an sctionoi? assmnpx.' ).j A claiming to be a prt'prie*tor of {.ore scrip, against A. B. V. and J). who had received money for the use of the proprietors, the defendants cannot give in evidence a receipt signed by the plaintiff and ci-rio ¿her for such scrip to account with the company, to prove that the plaintiff is not a proprk^ tor.
    MOTION for a new trial.
    This was an action of assum.fi.nt, stating that the defendants, in July, 1805, received of the treasurer of the State of Connecticut, 10,000 dollars, to and for the use of the several proprietors of the Connecticut title to the tract of land called the Connecticut Gore, to be distributed among the proprietors according to the several proportions by them respectively owned; which money was paid to the defendants, in pursuance of a resolve of the general assembly, granting 40,000 dollars to the proprietors of the Gore, for relinquishing to the state, their right and title, and all claim relating to the Gore; and that the plaintiff was the owner of six shares or four hundredth parts, and entitled to the trust, and benefit of six shares, and held certificates duly executed, signed by the trustees of the Gore, and dated 4th of December, 1796.
    That the defendants gave notice in a public paper, that upon the proprietors’ delivering up their certificates to the defendants, they would pay to the respective proprietors, their proportions of 10,000 dollars: and that the plaintiff tendered to the defendants his certificates ; and the defendants became liable to pay.
    A ora assumpsit was pleaded ; and the plaintiff read ⅛ evidence his certificates, each, signed, and sealed, by Jeremiah Halsey, Jacob Ogden, Hezekiah Bissell, and Thomas Bull, trustees of the Gore Company, declaring, that Jesse Root, jun. was entitled to the trust and benefit of one four hundredth part of the Connecticut Gore of land so called, [describing it] as held by the trustees ⅛ a deed of trust, dated the 8th of April, 1796; and that the plaintiff and his assigns were to hoid the same ao cording to the tenor, and upon the conditions in the deed of trust, and two severa' sets of anieles of agreement» for conducting the management and improvement of the land, one dated the 17th September, 1795, the other, the 8th April, 1796, and subscribed by the persons composing the company.
    The defendants then stated, as their grounds of de-fence, that the certificates claimed by the plaintiff were, and ever had been, the property of the Gore Company, and that Jacob Ogden, one of the directors, and a trustee of the company, about the 1st of December, 1796, put said certificates into the hands of the plaintiff, (without the name of the plaintiff having beeii inserted as grantee, but a blank left to insert the name of the grantee) as a broker to sell, for the use and benefit of the company, and to account with the company; and that after-wards, before the 8th of April, 1797, the plaintiff entered into a copartnership with Samuel Ledlie, in the business of brokers, under the name of Root and Ledlie; and on the 8th of April, 1797, it was agreed by Root and Ledlie, and Ogden, as a director of the Gore Company, that Root and Ledlie., as partners and brokers, should hold the certificates as trustees for the company,, and as brokers sell them upon commissions, and account with the company. To prove which, they offered in evidence a receipt, signed Root and Ledlie, dated 8th of April, 1797, of the following tenor: “ Received of Jacob Ogden, trustee of the Connecticut Gore Company, six scrip in the Gore, No. 269, 270, 271, 272, 273, 274.” [the numbers described in the declaration] “ to sell for said company on commissions, at the order and direction of said Ogden, and account for the same on demand, to said company.” The plaintiff objected to this receipt being read in evidence; and the court ruled, that it should not be read in evidence. And the defendants were thus compelled to suffer a verdict against them ; and moved for a new trial; the consideration of which motion was reserved for the opinion of the nine judges, v
    
      Goodrich, in support of the motion.
    The defendants are sued as having received the money of the proprietors of the Gore Company, of which the plaintiff claims to be one. The money is held by the defendants for the use of the proprietors. If the plaintiff is not one, it is the duty of the defendants not to pay to him, but hold the money for those \\ ho are proprietors; and payment by them to the plaintiff, would not discharge the defendants. The question then arises, is the plaintiff a proprietor ? The certificates produced were certainly prima facie evidence that he was. The receipt offered in evidence, would have shown conclusively, that he was not; but that lie held these scrip in trust for the company, whose agent the defendants'are. Why then should not this fact be proved ? A memorandum in writing, signed by the party, is offered in evidence. And surely, the nature of the plaintiff’s rights may be explained by written evidence under his own hand.
    If A. gives to B. a broker, his note to sell in market, and B. gives a receipt declaring the use for which he holds it; and instead of selling the note, B, brings a suit upon it against A.; may not A. give the receipt ia evidence to show the nature of the transaction 1 And in this state, it can make no difference that this is a deed; as the cpndkion of a deed, though on a separate paper, may control the deed as between the parties, so may any writing explaining it. The defendants offer to show, that so far from having' the rights of a proprietor, the plaintiff was only the agen! of the proprietors, fora certain purpose; not having perforated the duty he undertook, can he now avail hintseif of the benefit arising front his own neglect ? This must he the result, unless the evidence is admitted. And the plaintiff, in an action founded on the purest principles of equity, is to recover money, which, by written evidence, it appears he has no right to retain.
    
    It can make no difference, that this receipt was signed with the name of Ledlie as well as Root. It is no less the act of Root. Nor can it make any difference, that it was given at a time subsequent to the deed, as it is between the same parties, and relative to the same subject.
    
      Édtvarda, contra.
    The plaintiff shows by the certificates, that he has the rights of a proprietor; at least, he shows that he has the evidence of those rights which the defendants required in their advertisement. To oppose this, the defendants offer to prove, that -the plaintiff with Ledlie, received these scrip not as his own, but to sell. To this the plaintiff objects, that he having produced the usual evidence of title, the evidence which the defendants required, it cannot in this way be resisted. If it could, these defendants could not make the objection. They have no claim by this receipt. The receipt is given to Jacob Ogden, to account with the Gore Company. The defendants have not shown, that they have the rights of the company, or have any authority to claim in their behalf. They, as individuals, have received money from the state, to pay over; and if the Gore Company have claims upon Jci’-.e Root, or upon Root and Ledlie, they only are competí, nt to assert them and not the defendants. Rut wh<1 5 ■> tin , receipt ? The plaintiff, on the 4th of December, 1796, is possessed of these scrip;; and in April, 1797, the Gore Company take a receipt from Root and Ledlie, that they will sell these scrip, and account with the company. In this action, is Jesse Root bound to settle the accounts of Root and Ledlie, and the Gore Company ? Root and Ledlie may have sold these scrip to the plaintiff, and may have accounted with the company. But Jesse Root could not expect to settle that account in this suit. Root and Ledlie being parties to that receipt, the claims of Jesse Root are not to be affected by it. Tne evidence, therefore, was properly rejected.
   By the Court.

A new trial is not to be granted»  