source: Caselaw Access Project

author: Church, Ch. J.

license: Public Domain

text:
    Mann against Cooke.
    A rail-road company, being incorporated, by the legislature of the state of New-York, its charter authorized the directors to require payment of subscriptions to the capital stock, under the penalty of the forfeiture of the shares, with the payments made thereon. This company was duly organized under its charter, its original capital fully subscribed, and ten per cent, thereof paid in. Afterwards authority was given to increase the capital stock. Soon after the original stock was taken up, M purchased 11,265 shares of it, and then became insolvent, and unable to pay the unpaid balance which would be due to the company on its calls. He thereupon transferred these shares to D, in trust for the company, so as to be reinvested therein ; and the company immediately received new subscriptions to the same amount. Among the new subscribers was C, who subscribed for forty shares. This subscription was made upon a condition that all future calls should be paid as required, or the shares should become the properly of the company, and be sold for its benefit. D thereupon made a transfer, on the books of the company, of forty shares, to C, who received a certificate of ownership from the president. The special terms of C's subscription were not known to the other subscribers; all whose subscriptions were made without any such condition. Some time afterwards, the company being largely indebted and insolvent, and the greater part of the instalments on its stock unpaid, the president made an arrangement with C to this effect; that C should immediately pay the instalments on twenty shares of his stock in full; and he was thereupon to be discharged from all liability on the other twenty shares. C complied with these terms ; and the money so paid was applied for the benefit of the company. A was appointed, under the laws of the state of New-York, where the parties then lived, and all the transactions took place, a receiver of the effects of the company, which were duly assigned to him. On a bill in chancery brought in this state by A, against the executrix of C, to obtain payment of the balance due on the forty shares subscribed by him, it was held, 1. that the provision in the charier for a forfeiture of stock, on non-payment of instalments was merely an accumulative remedy, and did not supersede or impair any remedy otherwise existing ; 2. that in this case, a subscription for shares of the capital stock, incurred a debt, which may be enforced, by any appropriate common law or equitable remedy ; 3. that the subscription of C for forty shares, though peculiar in its terms, and made under peculiar circumstances, was not different in its legal effect from the other subscriptions ; 4. that this corporation, created as it was for public purposes, could not receive a subscription, under a private arrangement, at less than the par value of the stock, as this would take from the company so much of its available means,and would thus operate as a fraud upon creditors and other stockholders; 5, that consequently, the arrangement made between the president of the company and C, by which C was to be discharged from the payment of further calls on twenty shares of the stock subscribed by him, was unavailing, as against the receiver, representing the creditors ; 6. that consequently, the plaintiff was entitled to a decree for the unpaid balance due on the forty shares subscribed by C, with interest thereon.
    Hartford,
    July, 1850.
    These doctrines have been established, under similar circumstances, in the state of New- York,

    This was a bill in chancery, brought by John T. Mann, receiver of the Canajoharie and Catskill Rail-road Company, against Annie E. Cooke, executrix of the last will and testament of Edward P. Cooke, deceased; praying for a decree ordering her to pay to the plaintiff the amount remaining due and unpaid upon forty shares of the stock of said company, held by said E. P. Cooke, in his life-time, but now belonging to his estate.
    The original charter of this company, was granted, by the legislature of the state of New-York, April 19th, 1830. It provided, that the capital stock of the company should be 600,000 dollars, and should be divided into shares of 50 dollars each, which should be deemed personal estate, and transferable in such manner as the by-laws of the corporation should direct. It provided also for the election of directors, five of whom should form a board, and that they should choose one out of their number to be president. In a subsequent section, it was declared to be lawful for the directors to require payment of the sums to be subscribed to the capital stock, at such times, and in such proportions, and on such conditions, as they should deem fit, under the penalty of the forfeiture of all previous payments thereon. By an amendment of the charter, passed April 29th, 1837, the company was authorized to increase its capital stock 400,000 dollars ; and the directors were invested with all the powers in respect to the instalments that might be required in the filling up of the additional stock, which they possessed by the charter, in reference to the original stock ; and particularly, they were authorized to require payment of the sums to be subscribed to the additional stock, as well as to the original stock, at such times, and in such proportions, and on such conditions, as they should see fit, under the penalty of the forfeiture of their stock and of previous payments thereon. By a general statute law of the state of New-York, regarding corporations, it was provided, that if there should be any sum remaining due upon any share of stock subscribed in such corporation, the receivers should immediately proceed and recover the same, unless the person so indebted should be wholly insolvent ; and for that purpose, might file their bill in the court of chancery, or commence and prosecute an action at law, for the recovery of such sums, without the consent of any creditors of such corporation.
    By legal proceedings had against the Canajoharie and Catskill Rail-road Company, the stock, property and effects of that company were sequestered, and the plaintiff was duly appointed receiver thereof.
    The original stock was taken up and subscribed for according to the terms and provisions of the charter, and without any other qualification than such as it contained.
    After such stock was so taken up, and the company organized, viz. on the 3d day of July, 1835, Henry Marvin purchased 4,400 shares, and Rodman G. Day 7,245 shares; but finding themselves unable to pay the balance remaining unpaid upon such shares, they sold and transferred the greater part of them, viz. 7,215 shares, to Amos Cornwall, Peter S. Mesick and John M. Donelly; the vendors retaining the balance. While the shares sold to these persons stood in their names on the books of the company, sundry persons subscribed to the stock of the company the number of shares set to their respective names, to an amount in the whole equal to the number of shares so transferred to Cornwall, Mesick and Donelly; and among these subscribers was Edward P. Cooke of the city of New-York, for forty shares. His subscription was obtained, by Thomas B. Cooke, then president of the company, in consequence of an application previously made to him, by the subscriber, to procure stock in that company, and was in the following form:
    “ Canajoharie and Catskill Rail-road. The shares are fifty dollars each.-The undersigned agree to pay, on the first day of May next, to the president and directors of the above company, twelve 50/100 dollars on each and every share annexed to their respective names, when said shares are to be transferred to each subscriber to this instrument, but on condition that all future calls legally made by said board of directors shall be paid as required, or said shares shall become the property of the company, and the president and directors shall sell the same for the benefit thereof.
    New-York, August 13th, 1833.
    [Signed.] Edward P. Cooke. forty shares,"
    The other subscriptions were made without any such condition,
    E. P. Cooke paid the instalments called for on the stock subscribed by him, amounting to 500 dollars, after which the shares were transferred on the hooks of the company, from Cornwall, Mesick and Donelly to him ; a condition similar to that on which his subscription was made, being annexed to their transfer to him. A certificate of his ownership of the forty shares, containing the same condition, was thereupon issued to him, which he received and retained. The stock transferred by Marvin and Day to Cornwall, Mesick and Donelly, was holden by the latter in trust for the company, although it stood on the books in their names, as individuals, and not as trustees.

    After the transfer to E. P. Cooke, sundry other instalments were called for; and on the 24th of March 1841, the corn-pany being greatly insolvent, he, being abundantly responsible, paid to Thomas B. Cooke, then president of the company, the sum of 500 dollars, and received from him a writing of the following tenor
    Received from Edward P. Cooke, this 24th day of March 1841, five hundred dollars, which sum, in addition to the sum of five hundred dollars heretofore received by the Canajo-kane and Catskill Rail-road Coinpang, completes a payment of fifty dollars on each share of twenty shares of the capital stock of said company, viz, full payment thereon, part being in advance of calls, In consideration of the foregoing payments, and of the further sum of one dollar, the receipt of which is hereby acknowledged, the said Cooke is hereby declared to be entitled to a certificate of twenty shares of the capital stock of said company, to be delivered to him, on demand, executed in due form ; and the said Cooke is hereby released and discharged from all liabilities or demand whatever, growing out of his subscription for forty shares of the stock of said company, which subscription is now cancelled and compromised. Thomas B. Cooke, President.

      New-York, March 24th, 1841.”
    It did not appear by the books of the company, that Thomas B. Cooke had any legal authority in behalf of the, company, or the directors, to enter into any such arrangement as that here stated, or that there was any subsequent ratification thereof, by the company or the directors. But previous to this arrangement, he, by the advice of the directors residing in Calskill, and with general parol instructions from them, went to the city of New-York, during a time of great pressure in the money market, for the purpose of raising money to pay-an instalment of interest due to the state of New-York upon a loan made to the company. The sum of 500 dollars thus paid to him, by E. P. Cooke, was by him applied, in the accomplishment of this purpose.
    The stockholders of the company generally, had no knowledge of the special terms of E. P. Cooke’s subscription. The company, at that time was, and still is, largely insolvent. Sundry of the stockholders have been compelled to pay, and have paid in full, all the instalments on the stock by them held. Instalments have been regularly called upon the stock subscribed for by E. P. Cooke, but nothing has been paid, except as before stated. The debts now outstanding against the company, were contracted after he became a stockholder. The whole transaction took place in the state of New-York, and the parties were citizens of that state.
    The case, embracing these facts, with some others, either incidental, or of minor importance, was reserved for the advice of this court, upon the question whether the plaintiff is entitled to any, and if any, what relief.

      Hungerford and Cone, for the plaintiff,
    contended, 1. That the charter of the company is to be taken in connexion with the law of the state, at the time of its incorporation, which in effect becomes a part of its charter. 2 Robin. (Lou.) R. 529.

    2. That if necessary for the payment of the debts of the company, the stockholders may be required to pay their stock in full, notwithstanding a forfeiture of stock is authorized by the charter. Hartford and New Haven Rail-road Co. v. Kennedy, 12 Conn. R. 499. Same v. Boorman & al. Id. 530. Ward & al. v. Griswoldville Manufacturing Co. 16 Conn. R. 593. Sagory v. Dubois, 3 Sandf. Ch. R. 466. Mann v. Currie, 2 Barb. Sup. Ct. R. 294. Troy Turnpike and Rail-road Co. v. McChesney, 21 Wend. 296.
    3. That a party taking the stock by assignment, is subject to the same liabilities as the original subscriber. Hartford and New-Haven Rail-road Co. v. Boorman & al. 12 Conn. R. 593. Mann v. Currie, 2 Barb. Sup. Ct. R. 294.
    4. That in this case, the person to whom the receiver is to look for payment of the balance of the stock, is E. P. Cooke, as the legal title was in him, and the stock stood in his name. Marlborough Manuf. Co. v. Smith, 2 Conn. R. 579. Bank of Utica v. Smalley, 2 Cowen, 770. Commercial Bank of Buffalo v. Kortright, 22 Wend. 348. Adderly v. Storm & al. 6 Hill, 624. Mann v. Currie, 2 Barb. Sup. Ct. R. 294. Walker v. Devereaux, 4 Paige 230. Thorp v. Woodhull, 1 Sandf. Ch. R. 411. Dutton v. Connecticut Bank, 13 Conn, R. 493. In re Mohawk & Hudson Rail-road Co. 19 Wend. 135.
    5. That the form of E. P. Cooke’s subscription, does not exonerate him from liability to pay up his share in full. For, in the first place, the form of subscription was substantially according to the charter, and intended to be precisely so. Secondly, the provision in the charter, and also in the subscription, for a forfeiture, was designed for the benefit of the company, and not of the stockholders ; the forfeiture being authorized merely to make the stock collateral security for the payment of the money. Troy Turnpike and Rail-road Co. v. McChesney, 21 Wend. 297.299. Herkimer Manuf. & Hydraulic Co. v. Small, 2 Hill 127. 129, 30. Thirdly, the subscription was an unconditional stipulation to pay according to the provisions of the charter, and even an actual forfeiture of the stock would neither destroy nor satisfy the promise. See the case last cited. Fourthly, admitting that the subscription varies from the provisions of the charter, E. P. Cooke subsequently took a transfer of the stock, to hold according to the provisions of the charter, and also a proper certificate of ownership, by which he was held out, upon the books, to the creditors and other stockholders, as absolute owner, and bound by the charter. Mann v. Currie and Adderley v. Storms, ubi supra. Fifthly, a different construction would work a fraud both upon the other stockholders and the creditors of the company. Walker v. Devereauz, Thorp v. Woodhull, ubi supra, and other cases above cited. Stockholders and creditors are both represented by the receiver. In re City Bank of Buffalo, 10 Paige 379. Mann v. Pentz, 2 Sandf. Ch. R. 271. Green v. Bostwich, 1 Sandf. Ch. R. 186, 7.
    6. That the agreement between E. P. Cooke and Thomas B. Cooke, to surrender a part of his stock and pay up the balance in full, and the company to receive such surrender and payment, was ineffectual, and fraudulent as to creditors and other stockholders. Nathan v. Whitlock, 9 Paige 152. 159. Mann v. Pentz, 2 Sandf. Ch. R. 273. Brouwer v. Appleby, 1 Sandf. Sup. Ct. R. 158. and note, p. 171. Brouwer v. Hill, Id. 629.
    7. That the plaintiff is entitled to interest upon the instal-ments called and remaining unpaid, from the time they became due, and upon the balance, from the day fixed for the payment in the public notice given by him as received.

      Toucey, (with whom was F. Parsons,) for the defendant,
    contended, 1. That the contract of August 13th, 1835, was not an original subscription, but a special contract for the purchase of stock, owned by the company; and by its terms, the stock continued or became the property of the company. By the terms of this contract, E. P. Cooke was neither a stockholder nor indebted, at the date of the contract of March 24th, 1841.
    2. That by the latter contract, he became the owner of twenty shares, fully paid up, and the company the owner of the other twenty shares, as before the conditional sale. In the first place, the company was a party to this contract. It was made in its name, and by its principal financial officer, acting under general instructions. The money was received for the company, and applied to its benefit. There was no disaffirmance of the contract ; which, under the circumstances, was equivalent to a ratification. The authority was sufficient. Bank of Columbia v. Patterson's admr. 7 Cranch 299. Randall v. Van Vechten & al. 19 Johns. R. 60. 1 Pick. 373. 8 Dana, 114. Secondly, the contract was a valid one. It was within the general powers of the company; it was fair; and was justified by the emergency. Thirdly, the effect of the transaction was, to make E. P. Cooke the owner of twenty shares paid up, and the company the owner of the other twenty, in their previous state.
    3. That the company had no claim on E. P. Cooke, on the 17th of May 1842, to assign for the benefit of its creditors ; and the assignment conveyed to the receiver no claim against him. He owed the company nothing at that time.
    4. That the contract of March 24th, 1841, cannot be regarded as fraudulent against creditors. In the first place, there is no allegation of fraud in the bill, without which it could not be found, or if found, the finding would be of no avail. Gaylord v. Couch, 5 Day, 223. Hobart v. Frisbie, 5 Conn. R. 592. Shepard v. Shepard, 6 Conn. R. 37. Crocker v. Higgins, 7 Conn. R. 342. Skinner v. Bailey, Id. 497. Secondly, the court has not found the arrangement fraudulent. Thirdly, the finding virtually excludes fraud on creditors or stockholders.

       The finding of the court states the evidence proving this fact.

   Church, Ch. J.

The object of this application is, to compel the executrix of E. P. Cooke, deceased, to pay to the plaintiff, as receiver, appointed under the laws of the state of New-York, the balance due for stock subscribed, by the deceased, to the capital of the Canajoharie and Gatskill Railroad Company, to whom the whole assets and credits of that company have been assigned.

Every thing which appertains to the rights of the plaintiff, or fixes the obligation of the defendant, has transpired in the state of New-York, of which state all the parties, then in interest, were citizens.

The charter of this company, with all the proceedings under it, and the construction given to them by the courts of New-York, must chiefly guide us in the decision we make. The original, as well as the amended charter, made it lawful for the directors of the company to require payment of the sums subscribed, at such times, in such proportions, and on such conditions, as they should see fit, under the penalty of the forfeiture of the stock and of previous payments thereon.

The rail-road company was duly organized under its charter, its original capital fully subscribed, and ten per cent. thereof paid in. Afterwards, authority was given to increase the capital stock four hundred thousand dollars.

Soon after the original stock was taken up, Marvin and Day purchased 11,265 shares of it, and then became insolvent and unable to pay the unpaid balance which would be due to the company upon its calls ; and thereupon, on the 3d day of July 1835, they transferred these shares to Cornwall, Mesick and Donnelly, in trust for the rail-road company ; and although this trust did not then appear upon the transfer, nor upon the company’s books, yet, in our opinion, the transaction was such, as to reinvest the 11,265 shares again in the company ; and so it was treated ; for the corporation immediately thereupon received new subscriptions for capital to the same amount. Among the new subscribers was Edward P. Cooke, the deceased, who became a subscriber for forty shares. This subscription was obtained, by the president of the company, Thomas B. Cooke; it was peculiar in its form, and made upon a condition that all future calls should be paid as required, or the shares should become the property of the company, and be sold for their benefit. This was followed by a transfer of the forty shares, by the trustees, to the said E. P. Cooke, upon the books of the company, and also by a certificate of the president. All the other subscriptions, by other subscribers, were in writing, without any such condition. The special terms of Cooke’s subscription were not known generally to the other subscribers, and the subscription itself was retained, by the president, Thomas B. Cooke.

The charter of this rail-road company, as we have seen, contains a provision, that the directors may require payment of subscriptions, under a penalty of the forfeiture of the shares. This has become a common, if not an universal provision in all charters creating monied or stock corporations ; its forms may vary in different charters, but the purpose is the same in all-to enforce the punctual payment of the entire capital stock, and to secure to the corporation and to its creditors an additional or cumulative remedy beyond that afforded by the common law.

It seems now to be generally admitted, that all subscribers to the capital stock of a corporation, which, by its charter, may require or demand payment of the capital subscribed, have incurred a debt, which may be enforced, by any appropriate common law or equitable remedy, and that such remedy is not at all impaired, by the further provision for the forfeiture of stock. Such is the law of this state, as established and recognized in the cases of the Hartford and New-Haven Rail-road Co. v. Kennedy, 12 Conn. R. 499. The same v. Boorman, Id. 530. Ward v. Griswoldville Manufacturing Co. 16 Conn. R. 593. And such also is the law of the state of New-York, by which this transaction is to be adjudged. Troy Turnpike and Rail-road Co. v. McChesney, 21 Wend 297. Herkimer M. & H. Co. v. Small, 2 Hill, 127. 129. Sagory v. Dubois, 3 Sandf. Ch. R. 466. Mann v. Currie, 2 Barb. Sup. Ct. R. 294. Mann v. Pratt, 2 Sandf, Ch. R. 273.

Was E. P. Cooke a subscriber to the stock of this railroad corporation, and subject to the same responsibilities as other subscribers ? We think he was.

It is true, that Marvin and Day had purchased a large number of original shares, and if Cooke had purchased of them, he could not have been treated as a subscriber, but as an assignee only. Hartford and New-Haven Rail-road Co. v. Boorman, 12 Conn. R. 531. Huddersfield, Canal Co. v. Buckley, 7 Term R. 76. Sagory v. Dubois, 3 Sandf. Ch. R. 466. But before any scrip had been issued to them,they had relinquished their stock to the company, through the agency of its trustees, and the corporation had become reinvested with it, to issue again as original stock. And, as such, it was reissued, and Cooke, became a subscriber, and his shares were duly transferred to him on the books of the company, and he received a certificate as an original stockholder; and these shares have ever since stood as his on the books of the company.

We do not think that the subscription of E. P. Cooke, although different in terms from others, was' different in its legal effect, or reserved to him a privilege, or created for him an exemption, not common to all. Nor ought we to believe, that such was the intention of the parties ; as then we should impute to them a fraud upon the creditors of the company, by enabling Cooke to withhold a portion of the capital from their reach, and a fraud upon other subscribers : all were entitled to stand on equal terms, and to have their subscriptions subject to the same conditions. If Cooke had purchased his shares of Marvin and Day, he could have made no stipulations with them which could have exonerated him from future calls ; and if he was a mere purchaser of the company’s stock, as the defendant claims, he could no better make a bargain which should operate to the injury of the company’s creditors, and stand opposed to the spirit of the charter.

We do not discover any essential distinction between the condition of Cooke, as a subscriber for this stock, which had once before been taken up and relinquished, and his condition if he had subscribed originally : in both cases, his subscription amounts to nothing more than a purchase of stock or shares which the company had to sell. 12 Conn. R. 510, 511.

Edward P. Cooke was, therefore, we conclude, an actual subscriber to the stock of this company, and not a mere contractor for it, with an option to take or refuse it.

If the corporation had the power, by such a stipulation as this, or by any other, to preclude themselves from a remedy to enforce the payment of the full amount subscribed for, it does not follow, that the creditors of the company can be precluded, by any such condition. This corporation was not created for its own sake, nor to serve its private ends alone, but for public purposes; and it would pervert some of the great ends of its being, and the objects of its charter, if it had legal power to dispose of its stock upon any terms which should defeat the public interests and defraud its own creditors. This plaintiff, as receiver, is here the representative of the creditors, seeking to enforce their claims against a delinquent subscriber. Lees v. Canal Co. 11 East, 645. Ward v. The Griswoldville Manuf. Co. 16 Conn. R. 593.

We do not intend to say, that if stock or shares which have been issued and paid for, shall again fall into the hands of a corporation, that they, may not be sold again, by the company, upon such terms as other holders of stock may sell it, as this would be no diversion or withdrawal of the capital.

The facts specially alleged in the answer of the defendant, that by reason of them, E. P. Cooke was discharged from all liability to pay any thing upon the twenty shares of stock, parcel of the forty shares subscribed for, because they had been transferred back again to the company, we cannot admit to be sufficient to discharge his estate from this claim of the receiver.

We waive the consideration of any question as to the authority of Thomas B. Cooke, the president of the company, to make the arrangement of the 24th of March 1841, and whether the company would itself have been bound by it. The corporation was, at this time, greatly insolvent, and its creditors had a right to insist, that the capital should be kept good, and no part of it diverted or withdrawn.

As this court said, in the case of the Hartford and New-Haven Rail-road v. Kennedy, so we now say, that this company was formed for the purpose of raising the necessary funds in money, to prosecute and complete a work of great public utility. The forty shares subscribed by E. P. Cooke, was a part of these monied funds or capital; and the public and creditors had a right to rely upon them, as so much money, and as a warrant of credit, not only for prosecuting the work, but as a fund for the payment of the present and future liabilities of the rail-road company.

If these twenty shares have been, as the defendant claims, effectually released by Cooke, and relinquished to the company, and received by them, then just so much has been taken away from its available means. Whether this was done with an intent to defraud the public, or the creditors of the corporation, as a question of fact, it is not for this court to determine ; but that its consequences would operate as a fraud upon both, we cannot doubt; and this is reason enough why we cannot sustain this transaction.

The suggestions of the defendant’s counsel, that no question of fraud, actual or legal, can be entertained here, because fraud is not alleged in the plaintiff’s bill, we do not regard-No question of fraud is made in the bill, or grows out of it, but arises solely from the facts set out in the defendant’s answer ; and from these facts and their necessary consequences, we repudiate the relinquishment of the twenty shares, as fraudulent in law, at least.

But as against the creditors and stockholders of this corporation, there has never been a legal transfer of these twenty shares back again to the company, however it might have been treated as between Cooke and the company. The power of attorney to effect this transfer, was kept, by the president, in his own pocket; he never acted under it; and the whole forty shares remained, standing on the books of the company in the name of E. P. Cooke, as a continuing stockholder, up to the time of his death. The receiver, as agent of the creditors, could look no where else for the owner.

The supreme court of the state of New-York, in the cases of Mann v. Currie and others, arising under this charter, have taken the same view of this question. 2 Barb. Sup. Ct. R. 294. See also Adderley v. Storm, 6 Hill, 624. 629.

We have no doubt but this bill must be sustained, and interest be added to the unpaid balance due on the stock subscribed for, from the time fixed by the receiver for payment, by his public notice for that purpose.

We entertain no doubts upon the various questions submitted to us upon this record ; but if we had, we should consider ourselves bound to acquiesce in the construction of this charter, and to regard the proceedings under it as they have been judicially considered in the state of New-York. The courts of that state, in cases growing out of proceedings under this charter, have entertained the same views as we have now expressed. Mann v. Currie & al. 2 Barb. Sup. Ct. R. 294. Mann v. Pentz & al. 2 Sandf. Ch. R. 257. Sagory v. Du-bois, 3 Sandf. Ch. R. 466.

We shall advise, that the plaintiff is entitled to the relief he asks.

In this opinion the other Judges concurred.

Decree for plaintiff.


author: Waite, J.

text:
    Hathaway against Hemingway.

      Hartford,

    July, 1850.
    When the burden of proving any matter in issue, is, by the pleadings, thrown upon the plaintiff, he must generally introduce, in the first instance, all the evidence upon which he relies and cannot, after going into part of his case, reserve the residue of his evidence for a subsequent opportunity.
    The same general rule is applicable to the defence. After the plaintiff has introduced his evidence and rested, the defendant must bring forward all the evidence on which he relies to meet the plaintiff’s claim; and cannot, after introducing a part, reserve the residue for a future occasion.
    Therefore, where the plaintiff in ejectment, claimed title to the demanded premises, by virtue of an execution in her favour, levied thereon, and had introduced her evidence in support of that title ; to this claim the defendant set up a two-fold defence-first, that the plaintiff had acquired no title, by the levy of her execution, because the property had previously been taken, by virtue of an execution in favour of R; and secondly, if she had acquired any title under her execution, she had subsequently conveyed it away by deed ; the defendant introduced evidence in relation to the first ground of defence alone, and there rested ; the plaintiff then introduced evidence to impeach the title of R; the defendant, after giving evidence in support of R's title, resorted to the other ground of defence, and offered evidence to show that the plaintiff had parted with her title ; it was held, that this was evidence in chief, and came too late.
    Though such is the general rule, it is not, in all cases, an inflexible one ; there being a discretionary power in the court, to relax the operation of it, when great injustice would be done, by a strict adherence to it
    Where the judgment in an action on a promissory note, on which there was a payment endorsed, was, by mistake, rendered for the amount of the note apparent on its face, without deducting the payment endorsed ; it was held, that this did not invalidate the judgment, and render the proceedings under an execution issued thereon, void ; but relief must be afforded to the party injured in some other mode; the court being inclined to think that his appropriate remedy was by an application to a court of chancery.
    Where the officer levied such execution upon two pieces of land,- While-acre and Black-acre-at the same time, and had them both set off together, describing, in his return, White-acre first, and then Black-acre ; and it was claimed, that the creditor’s debt, according to the appraisement of the land, was fully satisfied by While-acre, and that, consequently, no title to Black-acre was acquired, by the levy upon that piece; it was held, that the mere prior description of one of the pieces in the officer’s return, did not make any difference in the legal effect of the execution.
    Where the land levied upon was appraised at 25 dollars per acre, and was set off, by mistake, as containing just 26 acres, when it contained, in fact, 26 acres and 13 rods; it was held, that the appropriate remedy was by an application in chancery, on which that court might, by a proper decree, direct the creditor to relinquish so much of the land as would equal in value the excess taken.

      This was an action of ejectment, to recover possession of a certain tract of land situated in the town of Suffield.
    On the trial of the cause to the jury, it was admitted, that the property originally belonged to one Seth Granger, and that the defendant was in possession.
    The plaintiff claimed title, by virtue of the levy of an execution in her favour against Granger; and introduced the judgment and execution, with the officer’s re turn thereon.
    The defendant then introduced a judgment in favour of Isaac C. Remington and Daniel G. Remington, and sundry other judgments in favour of Daniel Remington, against Granger, and the executions which issued upon those judgments, and were levied upon the demanded premises, prior to the acquisition of any title or lien by the plaintiff, under which he claimed title, and there rested, without making any claim that the plaintiff had ever parted with the title, which she had acquired, by virtue of the levy of her execution.
    The plaintiff then introduced much evidence to show, that the judgment in her favour was for a debt justly due to her, and that the judgments in favour of the Remingtons were not for any debts justly due to them, but were fraudulent and void as against the creditors of Granger, and there again rested.
    The defendant then, on his part, produced much testimony to disprove this claim of the plaintiff, and at, or very near, the close of his evidence, claimed, that the plaintiff, after the levy of her execution, and before the commencement of the suit, had, by deed, conveyed all her interest in the premises to one Henry Granger ; and, in support of the claim, offered in evidence a deed, purporting to convey the same.
    To the admission of the deed, at that stage of the trial, the plaintiff objected, and claimed, that this, if evidence at all for the defendant, was evidence in chief, and should have been introduced as such on the trial. The court sustained the objection, and refused the admission of the deed.
    It further appeared, on the trial, that the plaintiff brought her action before the county court for the county of Hartford, upon a promissory note, dated January 1st, 1835, for the sum of 1170 dollars, payable on demand, with interest, upon which note there was indorsed, December 28th, 1840, the sum of 318 dollars, 71 cents, and, at the March term of said court, she recovered judgment for the sum of 1600 dollars, 58 cents, damages, and 9 dollars, 37 cents, costs of suit. She afterwards took out an execution upon that judgment, and caused it to be levied upon certain real estate of the debtor, in part satisfaction thereof, leaving a balance apparently due thereon, of 786 dollars, 37 cents.
    She afterwards brought art action before the superior court for the county of Hartford, upon the judgment so obtained, to recover that balance, and at the September term of that court, recovered judgment against Granger, for the sum of 1134 dollars, 32 cents, damages, and 12 dollars, 23 cents, costs of suit. Upon this judgment she took out an execution, and caused it to be duly levied upon two tracts of land of the debtor, the one last described in the officer’s return, was the one to recover possession of which the plaintiff brought her action.
    The defendant claimed, that the first judgment was rendered for the whole amount apparently due upon the face of the note, without any deduction for the endorsement thereon; that by reason thereof, both the first and last judgments were too large ; and that this was done with a design, on the part of the plaintiff, to cheat and defraud the creditors of Granger; and that if the endorsement had been deducted, the amount, which the plaintiff would have been entitled to recover, if any thing, would have been fully paid and satisfied, by the real estate taken upon the first execution, and the tract of land first described in the last execution; and that whether the omission was with a fraudulent design or not, on the part of the plaintiff, she, by reason of such omission, acquired no title to the demanded premises, by virtue of the levy of her execution, as against prior levying creditors : and he requested the court so to charge the jury.
    But the court instructed them, that if the endorsement upon the note ought to have been deducted, and the plaintiff had omitted to do it, with intent to cheat and defraud the creditors of Granger, then the judgments and the levy upon the demanded premises, were null and void, and their verdict must be for the defendant. But if such omission arose merely from mistake and accident, and without any dishonest or fraudulent design, neither the judgments, nor the levy of the execution, were thereby rendered void or ineffectual; but if any error had intervened, it must be corrected, if at all, in some other mode.
    The defendant further claimed, and introduced evidence to prove, that the demanded premises, which were appraised at 25 dollars an acre, and set off upon the execution as containing 26 acres, did in fact contain 26 acres and 18 rods; and that consequently, the levy of the plaintiff’s execution upon the demanded premises, was thereby rendered void.
    The plaintiff denied, that the premises contained more than 26 acres ; but if they did, the error, as claimed by the defendant, was so small, as to fall within the maxim, " de mini-mis non curat lex and so the court instructed the jury. They having returned a verdict in favour of the plaintiff, the defendant moved for a new trial ; and the questions of law were reserved for the advice of this court.

      Toucey and Chapman, in support of the motion,
    contended, 1.That the deed from the plaintiff to Henry Granger, was offered seasonably, and should have been admitted.
    2. That the plaintiff’s judgment is no evidence of debt between the parties to this suit, and is not receivable to prove the facts upon the supposed existence of which it is founded. 1 Stark. Ev. 183 to 190. Fowler v. Savage & al. 3 Conn. R. 90. 96. Slurges v. Beach & al. 1 Conn. R. 507. 1 Greenl. Ev. 629. 644. Swift’s Ev. 17, 18. Reed v. Davis, 5 Pick. 388. Pierce v. Partridge, 3 Met. 44. Alexander v. Gould, 1 Mass. R. 165.
    3. That if receivable for such a purpose, it is liable to be rebutted.
    4. That the plaintiff’s levy is void, because the officer has set off to him 18 rods of land more than was necessary to satisfy his entire demand. Beach v. Walker, 6 Conn. R. 190. Huntington v. Winchell, 8 Conn. R. 45. Spencer v. Champion, 9 Conn. R. 536.

      Hungerford and T. C. Perkins, contra,
    contended, 1. That the deed offered in evidence by the defendant, was evidence in chief, and should have been so introduced, if at all; and if not, the court had discretionary authority to reject it. 2 Greenl. Ev. 411. $ 429. (3d ed.) Borland v. Mayo, 8 Ala. R. 104. S. C. 1 Sup. U. S. Dig. 463. pl. 10.
    2. That in respect to the excess in quantity of the land taken beyond that allowed upon the execution, it did not avoid the levy. In the first place, it falls within the maxim do minimis non curat lex. Huntington v. Winchell, 8 Conn. R. 45, Spencer v. Champion, 9 Conn. R. 530. Secondly, the party injured is not remediless ; for if the excess was taken by mistake, he may have relief in chancery; if fraudulently, he may sustain an action at law. Fraud, however, will not be presumed ; and none is shown in this case.
    3. That the judgment in favour of Mrs. Hathaway could not, unless fraudulent, be impeached, in the manner attempted. 1 Sw. Dig. 754. Hauer's appeal, 5 Watts & Serg. 473. Hazelelt v. Ford, 10 Watts, 101. White v. Albertson, 3 Dev. 241. Williams v. Woodhouse, 3 Dev. 257. Perryman v. The State, 8 Mis. 208. Banister v. Higginson, 3 Shep. 73. Obert v. Hammel, 3 Harr. 73. Baird v. Campbell, 4 Watts & Serg. 191. Childs v. Ham. 10 Shep. 74. Lowber 4. Wilmer's appeal, 8 Watts 4. Serg. 387. Evans v. Adams, 3 Green, 373. Swiggart v. Barber, 4 Scam. 364. See also 2 Sup. U. S. Dig. 230. Adams & al. v. Balch, 5 Greenl. 188.
   Waite, J.

The first question, presented upon the motion, is, whether the court below erred in refusing to admit in evidence the deed offered by the defendant, in that stage of the trial, in which it was presented.

The rule upon this subject is a familiar one. When, by the pleadings, the burden of proving any matter in issue is thrown upon the plaintiff, he must, in the first instance, introduce all the evidence upon which he relies to establish his claim. He cannot, as said by Lord Ellenborough, go into half his case, and reserve the remainder. Rees v. Smith & al. 2 Stark. Ca. 31. Rex v. Beezley, 4 Car. 4 Pa. 220. (19 E. C. L. 353,) Brayden v. Goulman, 1 Monroe, 115. Rex v. Stimpson, 2 Car. & Pa. 415. (12 E. C. L. 197.) Knapp v. Haskell, 4 Carr & Pa. 590. (19 E. C. L. 539.)

The same rule applies to the defence. After the plaintiff has closed his testimony, the defendant must then bring forward all the evidence upon which he relies, to meet the claim on the part of the plaintiff. He cannot introduce a part, and reserve the residue for some future occasion.

After he has rested, neither party can, as a matter of right, introduce any farther testimony which may properly be considered testimony in chief.

What was the situation of the case, when the deed was offered ? The plaintiff claimed title to the demanded premises, by virtue of an execution in his favour, levied upon the property, and introduced his evidence in support of that title.

The defence to this claim was two-fold : first, that no title had been acquired, by the plaintiff, under her execution, because the property had been previously taken by the Reming-tons, by virtue of executions in their favour ; and in the second place, if she had acquired any title under her execution, she had subsequently conveyed it away, by deed.

The defendant was at liberty to place his defence upon either or both these grounds, at his pleasure. He chose, however, to produce evidence only in relation to the title acquired by the Remingtons, under whom he claimed a right to hold the possession.

The plaintiff then introduced evidence to impeach the title acquired by the Remingtons, and to show that it was fraudulent and void, as against the creditors of Granger, the former owner. The defendant then, after introducing evidence in support of the Remington title, attempted, for the first time, to resort to the other ground of defence, and show that the plaintiff had parted with her title to the demanded premises. This was dearly testimony in chief, and came too late. The decision of the court below was in conformity with the rule.

But this rule is not, in all cases, an inflexible one. There is, and of necessity must be, a discretionary power, vested in the court before which a trial is had, to relax the operation of the rule, when great injustice will be done, by a strict adherence to it. If a party, by mere mistake or inadvertence, omit to introduce a piece of testimony, constituting an essential link in his chain of evidence, and does not discover the mistake until after he has closed his testimony, the court, in its discretion, will, rather than that his cause should be sacrificed, permit him to supply the omission; taking care, how ever, to see that the adverse party is not prejudiced, by the relaxation of the rule.

This discretionary power, however, is to be exercised with great caution. While tbe rule may be departed from, for the sake of preventing great and manifest injustice, it ought not to be so frequently disregarded as to render it a rule in name, and not in reality.

We discover nothing in the present case, calling for the exercise of this discretionary power. It is not stated, that the omission to offer the deed, at an earlier period, was occasioned by any mistake or inadvertence of the defendant or his counsel.

The defendant did not claim title under that deed, but under the executions in favour of the Remingtons ; and the effect of setting up that deed, might only have been to turn the plaintiff, or her grantee, round, to bring another suit, for the purpose of trying the precise question involved in the present case, and that is, whether the plaintiff or the Remingtons had acquired the better title under their executions.

2. The next enquiry is, as to the effect upon the judgments, by the omission to apply the endorsement upon the note, in reduction of the amount. The jury were told, that if this were done, with a fraudulent design on the part of the plaintiff, the judgments would be void. The jury having returned a verdict in her favour, the charge of fraud must, therefore, be considered as negatived.

The case then must stand upon the ground of a mere mistake in computing the amount due upon the note. If by mistake, that amount is made too large, will it vitiate the judgment, and render the whole void ? We think not. Relief, in such case, must be afforded in some other form, than by setting aside the whole judgment, and all proceedings under the execution issuing upon that judgment.

In the present case, the defendant claims title from the Remingtons. The plaintiff’s title was acquired subsequently to theirs , and the jury, by returning a verdict in her favour, must have proceeded upon the ground claimed by her on the trial, that the judgments in favour of the Remingtons were fraudulent and void as to the creditors of Grander.

Under these ciscumstances, the defendant can be considered as standing upon no higher ground than that of a bona fide creditor of Granger, levying his execution upon his property, subsequent to the proceedings under that of the plaintiff Now, if the plaintiff has actually, under colour of law, taken more land than sufficient to satisfy the whole debt due to her, she ought not in equity to retain the surplus, as against the creditors of Granger, especially if he be insolvent, and have no other means of satisfying their demands. In

In such case, we are inclined to think the defendant’s ap- propriate remedy is by an application to a court of chancery. That court possesses more extensive powers than a court of law, and can so direct its decree as to do justice to all parties in interest. Had

the land set off upon the first execution, been suffi- cient to satisfy the whole debt actually due to the plaintiff, we are not prepared to say, that the subsequent judgment and execution would not have been inoperative, as against the title acquired by the Remingtons. But

the difficulty here is, that after applying the first tract of land upon the plaintiff’s first judgment, there was still a bal- ance justly due to her; and in relation to the subsequent pro- ceedings, a court of law has no power to separate the good from the bad. It must either hold the subsequent judgment and execution valid, or the whole void. It

is however insisted, that as the last execution was levied upon two pieces of land, and the one first described in the officer’s endorsement, according to the appraisal of the free- holders, is sufficient to satisfy the balance justly due to the plaintiff, she acquired, as against the Remingtons, no legal title to the demanded premises, which is the tract secondly described in the endorsement. There

would be much force in this argument, did it appear from the endorsement of the officer, that he levied, in the first place, upon one of the pieces, and after having that ap- praised, and set off upon the execution, he levied upon the other piece, and set. it off in like manner. In such case, if the plaintiff, at the time of the levy of the execution upon the last piece, had been fully paid, and her just debt satisfied, the defendant might well say, your title to the last tract of land shall not prevail against mine. The

The difficulty, however, is, that the officer levied the last execution upon the two pieces of land, at one and the same same time, and caused them both together to be set off upon the execution. A court of law can no more say which of the two pieces the plaintiff, under such circumstances, shall retain, and which relinquish, than it could, were the two pieces but one entire tract. The mere circumstance that one of the pieces is first described in the officer’s return, does not make any difference, or vary the legal effect of the execution.

3. The remaining inquiry relates to the quantity of land contained in the demanded premises. They were appraised at 25 dollars per acre, and were set off to the plaintiff upon her execution, as containing just 26 acres. It is now claimed, by the defendant, that the tract contains 26 acres and 18 rods, and consequently, she has, in fact, taken 18 rods more than she is entitled to.

On the trial, it was claimed, by the plaintiff, that the excess was so small as to fall within the maxim, “ de minimis non curat lex;" and the validity of that claim was recognized, by the court below.

We do not, however, deem it material to go into an enquiry, whether the claim can be vindicated, upon that ground ; because we are satisfied,that, for other reasons, a new trial for this cause should not be granted.

It is not claimed, that either the plaintiff, or the officer, committed any intentional wrong, in setting off the tract, as containing just 26 acres. There is no error apparent upon the face of the officer’s return. The case, therefore, must be considered as standing upon the mere ground of a mistake in fact, in relation to the quantity of land contained in the described tract.

The question, therefore, in this aspect, becomes very similar, in its effect, to the one last considered ; and the appropriate remedy, if any, is also in a court of chancery. Were the magnitude of the error sufficient to justify the interference of that court, it might, by a proper decree, direct the plaintiff to relinquish as much of the land as would equal in value the amount of the excess taken.

A new trial must therefore be denied.

In this opinion the other Judges concurred.

New trial not to be granted.


author: Hinman, J.

text:
    Southington Ecclesiastical Society against Gridley.
    Hartford,
    August, 1850.
    Where the plaintiffs in an action of trespass gsa. cl. against B, claiming title to a larger tract of land, which included the locus in quo, offered itt evidence the record of ajudgnsent in their favour, against C, in an action of ejectment for such larger tract, for the purpose of showing an act of ownership by the plaintiffs in relation to the locus in quo; it was held, that such judgment being between different parties, and in relation to a different subject matter, was inadmissible.
    Where the defendant, in such action, claimed title, by himself and under the Episcopal society, by virtue of an adverse possesion since the year 1790; the plaintiffs claimed, that the possession of the Episcopal society was under a licence from them, the plaintiffs ; and to prove this, they offered the testimony ofan aged member of the Episcopal society, " That that society, sup- posing that they held a lease of the ground on which the house stood, and six feet around it, ftom the Congregrational society, [plaintiffs,] I suppose that the [Episcopal] society instructed their committee to make search for the lease. The committee came into a society meeting, and reported, they could not find the lease :" it was held, that such testimony was inadmissible. The report
    of a committee of an ecclesiastical society, not acted upon by the so- ciety, is not evidence against the society ; and if acted upon, it could not be shown, by parol testimony. THIs was
    an action of trespass quare clausum fregit; tried at Hartford, on the general issue, September term, 1849. On the
    trial, the plaintiffs claimed title, by a non-existing grant, the original existence of which they claimed to have shown, by a variety of facts and circumstances, in connexion with a long possession by them. They also claimed, that the locus in quo was a part of a larger tract of land, embraced in and convoyed by said grant, the Eastern boundary of which passed through land occupied by Eri Hall. For the purpose of proving a claim of title by the plaintiffs to said land in the possession of Hall, lying West of said boundary line, they offered in evidence the record of a judgment in ejectment, recovered by them against Hall, in the year 1849, who, it was admitted, had been in the exclusive possession of said land, for several years prior to the commencement of that suit, holding it adversely to the plaintiffs and all other per- sons, The plaintiffs also offered evidence tending to prove, that prior to and down to the time when Hall took possession of said land, they had, for more than fifty years, possessed it, and exercised various acts of ownership thereon. The defendant
    The objected to the admission of such record in record in evidence, on the ground that the suit was not an act of possession, nor an act accompanying possession; and that said judgment was merely an adjudication of title to other land than the locus in quo, and between other parties than those in the present suit, the present defendant being neither party nor privy to that; and that it did not appear, that Hall hac yet been ejected from the land so recovered.
    The court sustained the objection, and ruled out the record.
    The defendant claimed title to the locus in quo, by a continued adverse possession in himself and the Episcopal society under whom he claimed, from the year 1790 down to the commencement of the present suit. To avoid the defendant’s claim of title on this ground, and to show that the possession of the Episcopal society was not adverse to that of the plaintiffs, but by licence, or under a lease from them, they offered in evidence the deposition of J. F. Norton, an aged man, and a member of the Episcopal society; the part of which relating to this matter, was as follows; “ At or near the time the fence was moved out, the Episcopal society, supposing that they held a lease of the ground on which the house stood, and six feet around it, from the Congregational society; I suppose that the society instructed their committee to make search for the lease among their papers. The committee came into a society meeting, and reported they could not find the lease.” There was no other evidence touching such lease, or search.
    To the admission of this evidence the defendant objected ; and the court excluded it.
    The jury gave a verdict for the defendant; and the plaintiffs thereupon moved for a new trial.

      F. Parsons and Hooker, in support of the motion,
    contended, 1. That the record of the ejectment suit and judgment against Hall, should have been admitted. In the first place, it was an act of ownership-an assertion of title. The plaintiffs were acting as owners. Secondly, it could make nó difference that they had not yet ejected Hall. They had the power to do it, at any moment. If they had done it, their suit, their judgment and the service of their execution, would be acts done by them while out of possession. But thirdly, this record was admissible as furnishing the highest evidence of title known to the law. Hall was in possession, claiming title. The plaintiffs recovered a judgment against him for this very land. Suppose he had given the plaintiffs a deed; would not that have been evidence ? Yet a deed is of no more solemnity than a judgment ; and like a judgment, it binds only parties and privies. The question was simply, where was the line between the plaintiffs and Hall; it being undisputed that that line, wherever it was, was the same line that bounded the locus in quo.
    2. That the part of Norton’s deposition which was offered by the plaintiffs, should have been received. The report of the committee, in society meeting, that they could not find the lease, was a declaration of a former owner against his title. It certainly implied the former existence of a lease. The plaintiffs were entitled to this evidence, to go to the jury, for what it was worth.

      Toucey and R. D. Hubbard, contra,
    contended, 1. That the record of the judgment against Hall was properly rejected. In the first place, it was res inter alios. Secondly, the subject matter was not identical. Thirdly, it was not admissible as a fact. It was utterly irrelevant, as it related to a different locus. Fourthly, it was inadmissible to prove a claim of title ; because the plaintiffs were not in possession ; and a naked claim of title, by a party out of possession, is clearly not evidence in his favour.
    2. That the extract from Norton's deposition, offered by the plaintiffs, was properly ruled out. In the first place, the evidence was merely conjectural. The witness stated nothing that he had any knowledge of, but merely what he supposed. Secondly, parol evidence of the doings of an ecclesiastical society, if otherwise unexceptionable, is inadmissible, as they should appear of record. Stat. 168. § 135. Thirdly, the report of the committee was not evidence, unless accepted by the society. Fourthly, it was irrelevant to the claim of the plaintiffs.
   Hinman, J.

The record offered in evidence by the plaintiffs, was properly excluded. It was the record of a judgment between different parties, and in relation to a different subject matter; and comes within none of the exceptions to the rule, excluding judgments between different parties. it was offered for the purpose of proving a claim of title by the plaintiffs to the land adjoining the locus in quo, as part of a larger tract claimed by them, which included the land on which the trespass was committed ; and it is insisted, that it should have been received, as conducing to show an act of ownership, by the plaintiffs, to a portion of the larger tract.

It is obvious, in this point of view, that the judgment of the court is of no force whatever. It is only the act of the plaintiffs, in prosecuting the former suit, that gives the record the force of evidence, according to this claim. As such, no doubt it does show, that the plaintiffs claimed a right to the possession of the land occupied by Hall; but it shows no act of ownership. At most, then, it is the naked declaration of the plaintiffs, that they were entitled to the possession of the land occupied by Hall. That this declaration, or claim, was made to a lawyer, and a suit brought and prosecuted to enforce it, gives it no additional weight. It is equally liable to the suspicion of collusion; or that, it was made for the purpose of making evidence, by the party himself.

The defendant claimed title, by himself, and under the Episcopal society, by virtue, of an adverse possession, since the year 1790. The plaintiffs claimed, that the possession of the Episcopal society was under a licence from them; and, therefore, not adverse. To prove this, they offered in evidence the deposition of an aged member of that society; who deposed, that on a certain occasion, •‘ the Episcopal society, supposing that they held a lease of the ground on which the house stood, and six feet around it, from the Congregational society ; I suppose that the society instructed their committee to make search for the lease among their papers. The committee came into a society meeting, and reported they could not find the lease.” And the question is, whether the decision of the court, excluding this deposition, was correct. Most of the deposition,-indeed all of it, except the part which states, that the committee reported to the society meeting that they could not find the lease,- is the mere conjecture of the witness. He thought that the society supposed they held a lease of the ground; and that they instructed their committee to search for it. This was the opinion of the witness; but, upon what facts it was founded, does not appear; and it is not now claimed, that there was any error in excluding it,

But, it is said, that the report of the committee to the society meeting, was a declaration which implied, that they held under a lease. If this declaration by the committee, was the cause of any action on the part of the society, it should be shown by their votes. It could not be shown by parol. It does not, however, appear to have caused any action on the part of the society, and for that reason ought not to affect them. And, as a declaration of the committee, as agents of the society, it was not admissible : because it was not accompanied by any act. The committee were not agents of the society for the purpose of making admissions merely. Hartford Bank v. Hart, 3 Day, 493.

We are therefore satisfied there was no error in the ruling of the court; and do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.


text:
    Curtis against Ward and another.
    The general rule of damages, in an action of trover, is the vulue of the property, at the time of conversion, with interest.
    But to this general rule there are exceptions, as well established as the rule itself, and founded upon the same principle, viz. that the plaintiff ought to recover such damages as he has actually sustained, and no more.
    These exceptions occur when the plaintiff has, subsequently to the conversion, had the benefit of the properly.
    Therefore, where it appeared, in an action of trover, brought by A against B, that subsequently to the conversion complained of, B had attached the same goods in a suit against A, and having obtained judgment, levied his execution on such goods, and had them applied in satisfaction of his debt against A- all in due course of law; it was held, that A could recover damages only for the original taking of the goods, and the detention of them until they were regularly attached. >

      Hartford,

      August, 1850.

    This was an action of trover for the conversion of a large quantity of spectacles and silver spoons.
    At the term of the superior court, holden at Hartford, in September 1840, the defendants were defaulted and heard in damages. Upon such
    hearing, it was admitted, that the goods were taken by order of the defendant Ward, (Smith, the other de- fendant, acting as his agent,) and were never returned to the plaintiff. In mitigation
    of damages, the defendants offered evidence to prove, that Ward procured a writ of attachment, in an action of book debt, in his favour against Curtis, the present plaintiff, returnable to the superior court, to be holden at Hartford, on the 4th Tuesday of January 1846, and placed the same in the hands of a deputy-sheriff, who, on the 10th day of November 1845, by direction of Ward, attached the goods in question, and made legal service of the writ upon Curtis. The officer immediately took the goods into his pos- session, and kept them until the 14th day of January 1846, when he again attached the same goods, erased the endorse- ment of the previous attachment, and endorsed upon the writ the last attachment and service. The writ, so endorsed, was duly returned to court, and Ward subsequently obtained judgment in his suit, took out a writ of execution, and caused the goods to be legally disposed of, and the proceeds applied in satisfaction of his judgment. To the
    admission of this evidence, the plaintiff objected, claiming that he was entitled to recover the value of the goods, at the time of the first taking, with interest. The case
    was reserved, on the question as to the admissibil- ity of this evidence, for the advice of this court. Hungerford and

      Chapman, for the plaintiff, contended, 1.
    That as the writ, by virtue of which the goods in question were taken, was never returned to the court, and the original endorsement of the officer thereon was erased, the legal ef- fect of the transaction was the same as if there liad been no process, and the taking must be deemed a tortious taking and a conversion of the property. 2. That
    2. Thatthe subsequent attachment of the property, and and the sale and application of it to the execution in favour of the defendants against the plaintiff, could not be legally proved, either in justification of the first taking, or in mitigation of damages. Hanmer v. Wilsey, 17 Wend. 91. Otis v. Jones, 21 Wend. 394. Higgins v. Whitney, 24 Wend. 379. Kaley v. Shed, 10 Metc. 317.

      F. Parsons, contra,
    contended, That in mitigation of damages, in trover or trespass, the defendant may show, 1. a restoration or return of the property; 2. that it has been taken on legal process against the debtor; 3. that the property has goneto pay his debts, or otherwise applied to his use. Caldwell v. Eaton, 5 Mass. R. 299. Prescott v. Wright, 0 Mass. R. 20. Pierce v. Benjamin, 14 Pick. 356. 361. Greenfield Bank v. Leavitt, 17 Pick. 1. Reynolds v. Shuler, 5 Co wen, 323. 326, 7. 3 Stark. Ev. 1506. Irish v. Cloyes & al. 8 Verm. R. 30.
    In trespass, the undoubted rule is, that the plaintiff shall recover the actual damage sustained, except where exemplary damages may be awarded. Bateman v. Goodyear, 12 Conn. R. 575. 580. The same rule has been adopted in this state, in trover. Baldwin v. Porter, 12 Conn. R. 473. 484, 5. The general principle, both in trespass and in trover, is, to give the plaintiff such damages as he has actually sustained. And why should the form of action make any difference in this respect? Is justice to use one measure or another, at the election of the party or his attorney ?

      T. C. Perkins, on the same side,
    was stopped by the court.
   Waite, J.

Ward, the principal defendant, in this case, brought an action against the plaintiff, and caused the goods to be attached, and taken into the custody of the officer. Some two months afterwards, that attachment was abandoned, the endorsement of service erased from the writ, a new attachment and service made, and the writ, with the en* dorsement of the last service, was returned to court. Having obtained judgment in his suit, he caused the goods in question to be taken and disposed of according to law, and the proceeds to bé applied in satisfaction of that judgment. The present plaintiff then brought his action of trover against the defendants, for the original taking, and, as they could not. justify that taking, by any return upon the original process, they sufibred judgment to be rendered against them by default; but they claim a right to show the subsequent disposition of the property, in mitigation of damages.

the plaintiff resists this claim, and insists, that he is entitled to recover the value of the goods, at the time of the conversion, with interest. This claim of the plaintiff would be well founded, had be never, subsequent to the conversion, received any benefit from the property. Such undoubtedly is the general rule in relation to damages in an action of trover. Baldwin v. Porter, 12 Conn. R. 473. Clark v. Whitaker, 19 Conn. R. 330.

But to this general rule there are certain exceptions, " as well established," says Morton, J., "as the rule itself." Pierce v. Benjamin, 14 Pick. 1356. "And both the rule and the exceptions," says Church, J., "proceed upon the same principle, thatthe plaintiff ought to recover as much, and no more damages, than he has actually sustained." Baldwin v. Porter, 12 Conn. R. 484.

Thus, if the property for which the action is brought, has been returned to, and received by the plaintiff, it shall go in mitigation of damages. Greenfield Bank v. Leavitt, 17 Pick. 161. Baldwin v. Porter, and Pierce v. Benjamin. ubi sup.

So, if goods are tortiouslv taken, and a creditor of the owner afterwards ~attaches them, and disposes of them according to law, and applies the proceeds in satisfaction of a judgment against the owner, such proceeding may be shown, not as a justification of the taking, but in mitigation of damages. For it would be palpably unjust for the owner to receive the full value of his goods, in their application to the payment of his debts, and then afterwards recover that value from another, who has derived no substantial benefit from his property. This rule is not only in conformity with justice, but has the sanction of authority. See Pierce v. Benjamin, above cited.

The case under consideration, is not, in principle, distinguishable from those stated. The evidence offered, goes to show, that the plaintiff has been once paid for his goods, by a legal appropriation of them to the payment of a judgment against him ; and no principle of justice requires that he should be again paid for the same property. The defendants ought to be responsible to the extent of the wrong they have committed, and no further.

We are aware, that a different doctrine has been recognized, by the courts in the state of New-York; and the reason assigned is, that a person, who tortiously takes the goods of another, cannot, by any mere act of his own, deprive the owner of full damages in a suit against him. Higgins v. Whitney, 24 Wend. 379. Hanmer v. Wilsey, 17 Wend. 91.

But we are unable to yield our assent to the correctness of that doctrine, as applied to a case like the present, where there has been a legal appropriation of the property. Ward, the defendant in this case, had a legal right to attach the goods in question ; and as they were subsequently legally appropriated to the payment of the plaintiff’s debt, he has, in that way, received the full value of his property.

The defendants admit, that they have committed a trespass, in taking the goods ; and that they are liable to pay the plaintiff all the damages he has sustained thereby, and no more. These are for the original taking, and the detention until the second attachment. Beyond this they have done him no wrong.

He has no more right to complain of the second attachment, than he would, if made by any other creditor, or if there had been no previous taking of the property.

When the goods were attached, the second time, the copy left in service with him showed their situation. It was then, at his option, to regain the possession, either by a writ of re-plevin, or by the payment of the debt upon which they were attached, or suffer them to be applied in satisfaction of that debt. Had he obtained his goods, in either of the former modes, it would hardly be claimed, that he could afterwards recover their value of the defendants. The same result ought to follow, if he suffer them to be applied, in due form of law, to the payment of his debt.

We are therefore of opinion, that the evidence offered was legally admissible, and so advise the superior court.

In this opinion the other judges concurred.

Decision for defendants.


author: By the Court.

text:
    Evans against Bidwell.
    Hartford,
    August, 1850.
    Where the plaintiff, in an action of trespass qu. cl.fr., claimed title to the locus im quo, by adverse possession, and in support of his claim, introduced dence of his acts of dominion over the locus in quo, whirl, was port of a way, and especially of his cutting wood thereon for his fires ; and the ant, for the purpose of showing the character of the possession claimed by the plaintiff, and that the acts done by him did not constitute an adverse posses- sion, offered a witness to prove, that at the times when the plaintiff so cut wood on the locus in quo, it was, and long had been, customary for any person who chose, although not owning the fee of the highway or of the adjacent land, to cut wood for his fires from said highway : but no evidence was of- fared or claim made, that any such acts were clone on the locus in quo; it was held, that such evidence offered by the defendant, was not relevant to the issue, and was therefore inadmissible. Tins was an
    action of trespass quare clausuin fregit, the locus in quo being part of a highway in Manchester; tried, on the general issue, at Hartford, January term 1850. The plaintiff claimed
    to have proved, that the premises described in the declaration, were part of an old original highway, thirty rods wide, running North and South; the travelled road being on the Eastern side of such highway, of the width of one rod, and the remainder of such highway, upon the West of the travelled road, being impassable. The plaintiff claimed
    title thereto, by adverse possession, under an ancient distribution; in support of which, however, there was no written evidence. In support of his claim of adverse possession, the plaintiff offered evidence of his acts of dominion over and use of the property, and especially of his cutting wood thereon for his fires, as owner, from time to time, for more than fifteen years previous to the trespasses complained of. The premises were never enclosed, except by the front fences. The defendant claimed
    The to have proved, that the legal title to the prerniseswas in himself, by virtue of a regular succes- sion of deeds, conveying the premises, and coming down from the plaintiff's grand-father in 1788, who then, it was claimed, owned the premises; and that he, the defendant, and those under whom he claimed, had always held the peaceable and uninterrupted possession of the premises under their respec- tive deeds. For the purpose of showing the character of the adverse possession claimed by the plaintiff, and that the acts that the acts claimed to have been done by him upon the premises, did not constitute an adverse possession thereof, the defendant offered Samuel T. Talcott, as a witness, to prove, that at the various times when the plaintiff so cut the wood on the premises it was, and long had been, customary in the town of Manchester, and that there was, and long had been, there, a usage for any person who chose, although not owning the fee of the highway, or of the adjacent land, to cut and take wood for their fires from said highway. But no evidence was offered to prove, or claim made, that any such acts were done upon the premises.
    The plaintiff objected to such evidence as irrelevant, and mere proof of trespasses upon other proprietors. The court thereupon rejected such evidence.
    The defendant moved for a new trial, claiming that the court, in thus ruling, mistook the law.

      T. C. Perkins and R. D. Hubbard, in support of the motion,
    contended, That the evidence in question was legally admissible. First, to denote the quo animo, with which the acts were done. Commonwealth v. Doane, 1 Cush. 10. Secondly, to show, that the acts were not done under an adverse claim, but by permission. O’Linda v. Lalhrop, 21 Pick. 292. 297. Willoughby v. Middlesex Co., 8 Metc. 290. Read v. Leeds, 19 Conn. R. 182. 189.

      Toucey and Chapman, contra,
    insisted, That the evidence offered by the defendant, was properly rejected. They cited and commented on Read v. Leeds, 19 Conn. R. 182. Waters v. Lilley, 4 Pick. 145. Lufkin v. Haskell, 3 Pick. 355. 358. 7 N. Hump. R. 233.
   By the Court.

The evidence excluded by the Judge was not relevant to the issue; and was therefore properly rejected.

New trial not to be granted.


text:
    Lewis against Morse.

      Hartford,

      August, 1850.

    Where a deposition appers from inspection to have been signed by the depo-nest, it is not necessary that the magistrate taking it, should state such fact in his certificate; the statute requisites being otherwise complied with. Where

      A, claiming a certain wagon as his own. took it out of the possession of B, and held it about ten days ; when B attached it, as the property of A, and the officer delivered it, for safe keeping, to hired man, who placed it under JB’s shed ; B thereupon brought trespass against A, for the original taking of the wagon; and it was held, 1, that the wagon was not to be deemed, as mat- ter of taw, to have been returned to B, by virtue of its having been so attached by him, and placed under his shed; 2. that B was not thereby estopped from claiming that he had title to the wagon, when it was taken by A; 3. that the rule of damages, in such case, was the value of the property, with interest, from the time of conversion, but as this did not appear, interest was not inclu- ded; 4. that further damages for detention of the property, were not allowable. The
    party against whom an interested witness is called to testify, must make his objection as soon as the interest is discovered, and he has an opportunity of doing it; otherwise, he will be considered as having waived the objection. Therefore,
    where a witness, called by the plaintiff, was examined, cross-exam- ined and dismissed from the stand; and the next day, the defendant objected to his competency, on the ground of his interest, which was disclosed at the commencement of his examination ; it was held, that the objection came too late. Tins
    was an action of trespass for taking and carrying away a certain ox-wagon. The
    cause was tried before the superior court for the county of Hartford, at the January term, 1850. Upon
    the trial to the jury, the plaintiff offered in evidence the deposition of one Hart. The certificate of the magis- trate annexed to the deposition, stated, that Hart personally appeared, was examined, cautioned, and sworn agreeable to law, to the foregoing deposition, taken, &c., but did not state, that the deponent signed the deposition. The deposition, however, upon its face, purported to have been signed by the deponent. The
    defendant objected to its admission, because the mag- istrate had not certified, that the deponent had signed it. The plaintiff contended, that there was nothing in the objec- tion, but offered a witness, who testified, that he was present when the deposition was taken, and saw the deponent sign the same. To this testimony the defendant also objected ; but the court received the testimony and admitted the depo- sition. sition.

      It was proved, that the defendant took the wagon out of the plaintiff’s possession, claiming it as his own, and continued to hold it, in his possession, for the space of about ten days, when, by direction of the plaintiff, it was attached, with other property of the defendant, in the present suit. The officer, having so attached the wagon, delivered it to one Root, a hired man of the plaintiff, who placed it under a shed upon the plaintiff’s premises, where it has ever since remained, the plaintiff not claiming it any longer as his own; the defendant in no way relinquishing his title, or the officer his attachment.
    The defendant thereupon claimed, that upon these facts, the wagon should be held, as matter of law, to have been returned to the plaintiff at the time it was attached and placed under his shed ; and as he had caused the wagon to be attached as the property of the defendant, he was estopped from claiming that he had title to it, when it was taken from his possession, by the defendant; and that the title of the defendant, at that time, was conclusively admitted.
    But the court did not so instruct the jury, but informed them, that they might allow damages in the same manner as if the wagon had never been attached and removed from the defendant’s possession.
    The plaintiff for the purpose of proving his title to the wagon, called, as a witness, one Atwood, who testified, that the defendant had sold the wagon to him upon a credit, and that he afterwards, and before it was taken from the plaintiff by the defendant, had sold it to the plaintiff for a full consideration. The defendant denied that there had been any absolute sale of the wagon to the witness ; and upon this subject the witness was extensively cross-examined, by the defendant’s counsel, and dismissed from the stand. The next morning, and before any other witness was called, Atwood was recalled, and enquired of, by the defendant, whether he liad ever received any release from his liability, respecting his title to the wagon. To which he replied that he had not. The defendant thereupon contended, that the witness was interested in the event of the suit, as warrantor of the title ; and that his testimony, given on the previous day, should be entirely rejected.
    But the court held, that the objection came too late, inasmuch as the situation of the witness was known to the defendant from the commencement of his examination.
    The jury returned their verdict in favour of ihe plaintiff, finding for him to recover the sum of 60 dollars, 99 cents, damages, and his costs ; and stating in their verdict, that 50 dollars, 83 cents, was for the value of the wagon, 8 dollars, 16 cents, for the detention thereof after the attachment, and 2 dollars, for the detention previous to that time.
    The defendant thereupon filed his motion for a new trial; and the questions of law were reserved for the advice of this court.

      Chapman and Hooker, in support of the motion,
    contended, 1. That the deposition of Thomas F. Hart, and the parol evidence to sustain it, were improperly admitted. In the first place, the certificate of the magistrate does not state that the deponent signed the deposition. The statute (p. 81. sec. 115.) says, “ the witness shall subscribe his deposition, and make oath to it, before such authority, who shall attest the same.” This evidently means, that the magistrate shall attest that the deponent signed, the deposition and made oath to it.

    Secondly, the magistrate not having certified this fact, the defect cannot be remedied, by parol evidence. The statute expressly requires, that the magistrate attest, &c. If this fact may be proved aliunde, then may the fact of the oath being administered, and also all the facts to which the magistrate is required by the statute to certify ; and thus the attestation of the magistrate be dispensed with. Reading v. Weston, 7 Conn. R. 143. Amory v. Fellowes, 5 Mass. R. 219. 2 U. S. Dig. 208. pl. 7. 8. 13. 15. 85. 86. 87. 91.
    2. That the jury should have rendered a verdict only for the detention of the wagon, from the taking to the attachment, and no longer; and should not have included the value of the wagon in their verdict. The wagon was the property of the plaintiff. This the plaintiff claims, and the verdict establishes.
    The defendant claims, that the property was returned to the plaintiff, and that he has had it in his possession ever since. He has regained his own property ; and all detention since the attachment, has been his own.
    It makes no difference that the plaintiff chose not to use the wagon, or chose to treat it as attached property. It was his. It had got peaceably into his possession. He had full legal right to use it as he pleased.
    The wagon being the plaintiff's, it would not become the defendant's, until judgment against him for its value. 2 Kent's Corn. 387, 8.
    3. That Atwood was interested ; and the objection to his testimony, on this ground, should have been received and sustained. In the first place, be was clearly interested. He was the vendor of the wagon to the plaintiff; and the sale carried an implied warranty of the title, which was the entire matter in dispute between the parties. Atwood was swearing to his own title, and protecting himself against a liability to the plaintiff. 1 Swift's Dig. (rev. ed.) 384.
    Secondly, the objection did not come too late, and should have been received.
    The court adjourned very soon after his testimony was closed, and the objection did not occur to the defendant’s counsel till a few minutes after the adjournment. It was then too late to make the objection before morning; which they did, as soon as the court opened.
    It was specially important, in this case, that Atwood, as an interested witness, should not be allowed to testify. The real parties in the case were, this same Atwood and the defendant.

      Hungerford and It. D. Hubbard, contra,
    contended, 1. That the deposition of Hurt was admissible.
    In the first place, the statute only requires, that the administration of the oath should be attested. The signing appears on the record, and needs no attestation.
    But, secondly, if otherwise, the signing is sufficiently attested. The official signature of the justice was a sufficient attestation to a matter appearing on the face of the record. A witness, by signing a deed merely, attests the execution of the deed. See the language of the act. Stat.p. 455. § 8. 1 Green! Ev. 421. 1 Stark. Ev. 02, 3. Beeching v. Gower, 1 Holt’s Ca. 313. (3 E. C. L. 117.)
    Thirdly, if there is a clerical omission in the certificate, it is the mere formal omission of a fact which appears on the face of the deposition ; and the court will not favour a technical objection of this kind. Stocking v. Sage, 1 Conn. R. 524. Thompson v. Stewart, 3 Conn. R. 180. Scripture v. New-comb, 16 Coon. it 58g.
    Fourthlu, if the justice did not attest the signing, the defect might be aided by parol proof. Lawrence v. Phelps, 2 Root, 331.
    2. That the value of the wagon, and proper compensation for its detention up to the time of the rendition of judgment, constituted the true rule of damages. This is the general rule in trespass de bonis. The wrongful taking, ipso facto, (Clark v. Whitaker, 19 Conn. R. 319.) vests in the owner a right of action, to recover, not the specific thing, but the value of the thing, with consequential damages; and he cannot be divested of this right, by a tender of the property back, unless such tender is accepted. Gibbs v. Chase, 10 Mass. R. 128. Hanmer v. Wilsey, 17 Wend. 91. In this case, the property has not been returned, accepted or re-taken.
    3. That the defendant was not estopped from showing title to the wagon, by reason of the attachment.
    In the first place, the acts set up do not, legally or morally, constitute an estoppel.
    Secondly, the estoppel would only preclude him from showing title, at the time of the attachment, not at the time of the trespass.
    Thirdly, this question is settled in Loomis v. Green, 7 Greenl. R. 386.
    4. That the objection to Atwood’s testimony came too late. 1 Greenl. Eo. 421. 1 Stark. Ev. 92, 3. Donelson v, Taylor, 8 Pick. 300. Beeching v. Gower, 1 Plait’s Ca. 319. (3 E. C. L. 117.) Nichols v. Hayes, 13 Conn. i?. 156.
   Waite, J.

The objection to the admission of the deposition, is, that the certificate of the magistrate, does not state, that the deponent signed the deposition. That, in our opinion, is not required by the statute. Certain matters, however, must be embraced in the certificate. It must state, that the deponent was sworn, the reason for taking the deposition, and whether the adverse party, or his agent, was present. These facts would not otherwise appear.

But the signature of the deponent is a fact apparent from inspection; and it can hardly be supposed, in the absence of express words to that effect, that the legislature intended to require the certificate of a fact, from a magistrate, when that fact must neeessarly appear from the instrument itself.

The deposition, in the present case, purports to have been given by Hart, and to have been signed by him ; and the magistrate has certified, that Hart was examined, cautioned, and sworn, agreeable to law. This, we think, is sufficient, without the aid of any parol testimony.

2. The defendant, by taking the wagon out of the plaintiff’s possession, and converting it to his own use, rendered himself liable, in an action of trover, provided he was not the owner of the property. After that conversion, the plaintiff had a right to treat the wagon as the property of the defendant, and attach it as such.

The effect of the attachment, was not to restore the property to the plaintiff, or estop him from asserting his previous ownership. By the attachment, the wagon was taken into the custody of the law, and upon the termination of the suit, it would be the duty of the officer to treat it as any other property of the defendant, seized under the same process. The defendant, at any time, might regain possession of the wagon, by a writ of replevin. And so long as it was holden under the attachment, it is immaterial in what place it is kept by the officer.

The mere circumstance that it was placed for safe keeping upon the plaintiff’s premises, makes no difference, as it was still in the custody of the law. Had it appeared, that the plaintiff, availing himself of the situation of the property, had resumed his possession, the defendant might have waived his title under the conversion, and shown, in mitigation of damages, that the properly had gone back into the plaintiff’s possession. But that does not appear to have been done.

3. The objection to the testimony of Atwood came entirely too late. The true rule upon this subject is, that a party against whom an interested witness is called, must make his objection as soon as the interest is discovered and he has an opportunity of doing it. Failing to do this, he will be considered as having waived the objection.

He has his election, either to admit the testimony of an interested witness, or have it excluded. But he has no right to speculate upon the result-let it be received~ and if he finds it to operate in his favour, waive his objection-if against him, then call upon the court to exclude it. The election-must be made as soon as he is apprised of the interest, and can make the objection. See 1 Greenl. Ev. § 421. and the cases there cited.

In the present case, the interest of the witness was disclosed at the commencement of his examination ; and there is no claim that the defendant, at the time, laboured under any mistake in relation to the interest of the witness, which might have authorised the court, in the exercise of its discretion, to relax the operation of the rule to prevent injustice.

4. The general rule in relation to damages in an action of trover, is the value of the property, at the time of the conversion, with interest from that time. In this case, it appears, that the jury have included, in their verdict, not only the value of the property, but damages for detaining it, both before and subsequent to the attachment. Both, clearly, cannot be allowed.

Had the property been in fact restored to the plaintiff, the proper damages would have been those occasioned by the taking and detention merely. But as there was no evidence of any such restoration of the property, we see not why the plaintiff is not entitled to a verdict for its value. To this might be added the interest from the time of the conversion, had the jury found when that was. But as that does not sufficiently appear, we think the plaintiff must be content to have judgment entered for the value of the property, or a new trial must be granted. And we do so advise the superior court.

In this opinion the other Judges concurred.

New trial to be granted nisi.