author: Waite, J.

text:
    Treadway against Andrews.
    Where the plaintiff, in his scire-facias in a process of foreign attachment, alleged, that he brought his action of assumpsit against G, an absent and absconding debtor; and that having recovered judgment, the sheriff, with the execution, made demand of the debtor therein named, and also made demand of the defendant of the goods of said debtor; it was held, that from these allegations it appeared, that G was a debtor, and of course, the subject of recovery was a debt; the plaintiff, therefore, shewed a title defectively stated, which was cured by verdict.
    Where it was averred in the scire-facias, that when the service was made upon the present defendant, he had in his hands concealed the goods and effects of G, the defendant in the original suit, without averring, that they were so concealed that they could not be found to be attached ; it was held, this was sufficient, for the purpose of attaching such goods and effects in this process.

      New-Haven,
    July, 1850.
    Where it was also averred in the scire-focias, that the present defendant, at the time of service upon him, was indebted to G it was held, that this was sufficient for the purpose of attaching such indebtedness in this procees.
    Where the original writ a the process of foreign attachment directed copies to be left wait A, B and C, as theh, or either of term, are the trustees; of G, and are i tdebled to hum; it was held, that this averment, though very loose and indefinite, was sufficent, as nottce to the garnishees of the purpose for a which the copies were left with them, and did not render the attachment, as to the property or indebtedness, invalid.
    Where it appeared, that the property of G, the defendant in the original suit, was, on the eve of his failure, secretly removed to the premises of the garnishee, who, from that time, held himself out to the public as the owner, and declared to the officer serving the writ upon him, that he had none of C's property in his possession; it was held, that this was a concealment within the statute relating to foreign attachment, and subjected the garnishee to that process, with respect to such property, although it was accessible to the officer.
    The statute having been made for the suppression of fraud, is to receive a liberal construction to effectuate that object.
    This was a scire-facias in a process of foreign attachment.
    The plaintiff, among other matters, alleged, that he brought his action of assumpsit to the superior court, against Francis A. Gale, by writ, demanding 1000 dollars damages, and costs of suit; in which writ Gale was described as an absent and absconding debtor, out of the state, within the true intent and meaning of the statute, and therein the officer was commanded to leave true and attested copies thereof, at least fourteen days before the session of the court to which the same was made returnable, with Salmon Andrews, and therein averring that Andrews was the attorney, agent, factor, trustee and debtor of Gale, and had, concealed in his hands, the goods, effects, and estate of the defendant, and was indebted to him ; in which writ the officer was commanded to summon Andrews to appear before the superior court, and disclose, on oath, whether he had in his hands the goods, effects or estate of Gale, or was indebted to him.
    The plaintiff then proceeded to state, in the usual form, the service and return of the writ, the leaving of a copy with Andrews, the recovery of judgment by the plaintiff, the failure of Andrews to appear and disclose, the issuing of the execution, the demand of Gale and Andrews for payment, and for goods and effects of the debtor, and their neglect and refusal, and concluding “ as by the files and records of said superior court and said execution with said endorsement thereon, ready in court to be produced, appears.”
    The cause was tried before the superior court, in New-Haven county, at the January term, 1850.
    Upon the trial to the jury, upon the general issue, the plaintiff introduced in evidence the original writ of foreign attachment, in which the direction respecting the service upon Andrews was as follows : “And you are hereby commanded to leave a true and attested copy of this writ and process, at least fourteen days before the session of the court, to which the same is made returnable, with, or at the usual place of abode of Russel Coe, Salmon Andrews and Stephen Seymour, as they, or either of them, are the attorneys, agents, factors, trustees, and debtors of the defendant, and have concealed in their hands, the goods, effects, and estate of the defendant, and are indebted to him. And you are further commanded to summon said Coe, Andrews and Seymour to appear before said court, at the time and place first mentioned, then and there to answer and disclose on oath, whether they, or either of them, have concealed in their hands the goods, effects or estate of the defendant, or are indebted to him.”
    The defendant claimed, that the evidence did not sustain the allegation in the declaration. But the court told the jury' that by the service of the original writ and leaving a copy thereof with the defendant, any debt then due from the defendant to Gale, and any property of Gale, which the defendant then had concealed in his hands, was duly attached, and held liable to be applied in payment of the judgment, which the plaintiff had recovered against Gale in the original suit.
    The defendant introduced evidence to prove, that whatever articles of personal property he had received of Gale, were held by him openly and publicly, so that they could be found and attached, and were not concealed by him ; and claimed, that if the jury should find, that they were so holden, the plaintiff could not, in his suit, recover the value of such articles.
    The plaintiff, on the other hand, introduced evidence to prove, that on the eve of Gale’s failure, the articles of personal property were secretly removed, by Gale and the defendant, from Gale’s premises, to the premises of the defendant, a distance of about four miles; that some of the articles were placed in the cellar of the defendant’s dwelling-house, and the residue were placed, by the defendant, in different parts of his premises, in the same manner as his own ; and that the defendant, from the time of receiving the property to the time of trial, had held himself out to the public, as the owner of the property, and denied that the same, or any part thereof, belonged to Gale ; and that when the sheriff called upon the defendant to serve the original writ, he informed the sheriff, that he had none of Gale’s property in his possession, or under his controul ; and the plaintiff thereupon claimed, that the goods were concealed by the defendant, within the meaning of the statute.
    Upon these claims the court charged the jury, that if they should find the facts to be as claimed by the plaintiff, and that the defendant was holding the property as his own, under a claim that he had purchased it of Gale, and it was so situated that an officer would not be bound to take it, without an indemnity from the attaching creditor, it would be concealed, within the meaning of the statute, and liable to the process of foreign attachment.
    The jury returned a verdict for the plaintiff; and the defendant moved for a new trial, for the misdirection of the judge, and also filed a motion in arrest of judgment, for the insufficiency of the declaration. Both motions were reserved for the advice of this court.

      C. A. Ingersoll and Doolittle, in support of the motion in arrest,
    contended, 1. That the scire-facias was insufficient. In the first place, it is not alleged in the scire-f acias, that the plaintiff brought his original action against Gale, for the recovery of a debt. It is, that he brought his action of assump-sit-not that it was for the recovery of a debt. That “ as-sumpsit” might have been for the breach of a contract for not building a house, &c.
    Secondly, there is no allegation in the scire-facias, that the defendant, at the time the copy of the original writ was left with him in service, had in his hands the goods or effects of Gale concealed, so that they could not be come at, to be attached, or found.

    In support of the motion for a new trial, the same counsel contended, 2. That the charge to the jury was erroneous.

      In the first place, the scire-facias not alleging, that at the time the copy was left, the defendant had in his hands the goods of Gale concealed, so that they could not be found, or come at, to be attached, but only that the goods were in his hands, the court told the jury, that under this allegation, if in point of fact, there were goods in the hands of the defendant, concealed, &c. the plaintiff could hold them.
    Secondly, the original writ of foreign attachment offered in evidence did not sustain the allegation in the scire-facias, that Andrews was described and alleged in the original writ to be the attorney, agent, factor, trustee, and debtor of Gale. The allegation in the original writ, is, that Coe, Andrews, and Seymour, “or either of them, are the attorneys, agents, factors, &c.” ; that is, that one or the other of them, are. Wright v. Pond, 10 Conn. R. 255.
    Thirdly, the object of the law in authorizing an attachment, by this process, was, to give power to a creditor to create a lien on property of his debtor, when no such power existed, by the ordinary process of attachment. By the ordinary process of attachment, no power existed in a creditor to create a lien on property of his debtor concealed in the hands of a third person, so that it could not be come at, to be attached. Hence the power was given by this process, as it did not exist before. If the creditor has the power to reach the property, by the ordinary process, then that power should be exercised. In other words, if the property could be come at, to be attached, by reasonable diligence, then the officer was bound to attach ; and the present process will not lie, unless there be a real doubt as to the ownership of the property. The jury were told, “ that if the articles were so situated, that the officer would not be bound to take them, without an indemnity from the attaching creditor,” they were, in contemplation of law, concealed. But they were not told what facts must exist, to place the officer in this situation, when he “ would not be bound to take the property without an indemnity from the attaching creditor.” What will excuse him from attaching, is a question of law. That question of law was submitted to the jury. See Allen v. Megguire & al. 15 Mass. R. 490.

      Ingersoll and L. G. Peck, contra,
    remarked, in limine, that the statute authorizing foreign attachment, was passed in the early days of the colony, to prevent frauds even then existing and it has been the policy of our courts to give it such a construction as will most effectually promote that object. Slat. 31. (ed. 1784.) Enos v. Tuttle, 3 Conn. R. 27. Knox v. Protection Ins. Co. 9 Conn. R. 430.
    They then contended, on the motion in arrest, 1. That the declaration sufficiently sets forth the fact, that the plaintiff was a creditor of Gale. In the first place, it would seem to be enough to say that Gale is described in the writ as a debtor; that the action was assumpsit, and that the plaintiff recovered 508 dollars, 53 cents, damages. What is the meaning of the word “ creditor,” used in the statute ? A claim for unliquidated damages has been held to be a debt within the meaning of this statute. A person holding such a claim is therefore a “ creditor.” Can there be a dividing line in this action, on one side of which foreign attachment is proper, and on the other, not ? It is sufficient then to say, that the original action was assumpsit, and that the plaintiff recovered. Knox v. Protection Insurance Co. 9 Conn. R. 434.
    Secondly, the forms approved in Massachusetts and Connecticut, show that no such allegation is necessary. Oliver's Am. Prec. 655. 2 Sw. Dig. 566. Stat. Mass. 1794. ch. 65. Prov. Laws, Mass. 614.
    But thirdly, if the fact that the plaintiff was a creditor, was such a fact as must necessarily have been proved on the trial, by the issue joined, even if that fact was defectively or imperfectly stated, the defect is cured by verdict. 1 Chitt. Plead. 673. 677. Hendrick v. Seeley, 6 Conn. R. 176. 179, 80. Morey v. Homan, 10 Verm. R. 565. Dale v. Dean, 16 Conn. R. 579.
    In this case, profert was made of the files and records, and the issue was such as to put the plaintiff on proof of them. By those files and the copy of the writ now on this record, it appears, that the debt was on a note due from Gale to the plaintiff.
    2. That the original writ, with the officer’s return thereon, sufficiently sustains the allegation that said Andrews was described and alleged in said writ to be the “agent, factor,” &c. and had “ concealed in his hands the goods,” &c. of said
      Gale, and “ was indebted to him.” In the first place, it is not necessary, that this should be alleged in the original writ. The statute provides merely, that a copy of the writ be left, &c. and “from the time of leaving such copy” all the goods, effects, &c. are secured. Stat. 287, 8. (ed. 1838.) And if it be not necessary to set out in the original writ, that the garnishee is “ agent,” &c. an allegation in the scire-facias that the garnishee was in such writ so designated, is mere sur-plusage.
    Secondly, as the statute prescribes no particular form, or any form, of words, to attach goods in the hands of a garnishee, and to summon him into court,-if, on examination of the whole process, the description and notice are sufficient, it is enough. Suppose the phrase “or either of them,” in the descriptive part of the process, to be of doubtful import, the summons is to “ said Coe and said Andrews, and said Seymour, to appear, &c. then and there to answer, &c. whether they, on either or them, have concealed,” &c, It is to each one, so as not to be mistaken ; and so relates back as to make the description certain, if it ever was doubtful.
    Thirdly, but if the description in the original writ be necessary, as is claimed, and the allegation of such description in the scire-facias, it is here correctly done. It is the usual form of drawing writs, to direct the officer to “ attach to the value, &c. the goods or estate of A. B. and C. D., or the goods or estate of either of them.” Would trespass lie, if the officer attached the goods of one ? But suppose the phrase “ or either of them” is bad. The language of the writ is, in effect-as they (or either of them) are the attorneys, &c. and as they have concealed, &c. and as they are indebted, &c. This mode of supplying the ellipsis is obvious and grammatical.
    Fourthly, the rules for construing grants, &c. do not apply to this case. The object aimed at in a deed, is entire certainty, as to the person or persons who shall take. On the contrary, the aim in a foreign attachment, is to hold all together, and each one separately,-all or either. A grant to A. B. and C. jointly, and to A. and B. jointly, and to A. and C. jointly, and to A. in his own right, &c. would be bad ; but such description would be the best possible, in a foreign attachment. Wright v. Pond, 10 Conn. R. 256.

      3. That the judge, on the point of concealment, did not err as against the defendant. The language of the statute is, “ concealed so that they can not be found or come at, to be attached.” There is a distinction made. Goods may be " found,” i. e. visible, so that they can be physically got at, and yet so concealed that they can not be come at to be attached. The old law of Massachusetts was, on this point, the same as our own ; and what is sufficient under that statute, is sufficient here. Burlingame v. Bell, 16 Mass. R. 318. Swett v. Brown, 5 Pick. 180. Hastings v. Baldwin, 17 Mass. R. 557, 8. Howe's Pract. 64. Pruden v. Leaven, worth, 2 Root, 129. Starr v. Tracy & al. Id. 528.
   Waite, J.

Two exceptions have been taken to the sufficiency of the declaration. The first is, that it does not state, that the original action was brought for the recovery of a debt. The second is, that it is not averred, that the goods attached were concealed in the hands of the garnishee, so that they could not be found to be attached.

1. With respect to the first exception, we do not deem it necessary to determine whether the process of foreign attachment will, or will not, lie, in all cases, where the suit is brought for the recovery of damages, arising from a breach of contract. For we think, that, if there is any defect in the declaration, in this respect, it is cured by verdict. The plaintiff alleges, that he brought his action of assumpsit against Gale, an absent and absconding debtor, within the intent and meaning of the statute ; that the sheriff, with the execution, made demand of the debtor therein named, and also made demand of the defendant for the goods of the said debtor.

These allegations imply, that Gale was a debtor in some matter, which was the proper subject of an action of assump-sit, and is, at most, but a title defectively stated, and therefore cured by verdict.

2. It is averred in the declaration, that, at the time, when the service was made upon the defendant, he had in his hands concealed, the goods and effects of Gale; but the objection is, that it is not averred, in the language of the statute, that they could not be found to be attached.

This, in our opinion, is not required ; nor is it in conformity with the general practice in cases of this kind. The statute was made originally, for the prevention of fraud. It was passed, at an early period ; and in the preamble, it was stated to be an act “ for the better preventing fraud and deceit, sometimes designed and practiced by ill-minded debtors, who betrust their goods, estate, or effects, in the hands of others, with intent to reserve and receive the same to their own use, and thereby defeat their creditors of their just dues.” Stat. 61. (ed. 1808)

The statute then provided, that the creditor might attach all the goods and effects in the hands of the absconding debtor’s attorney, agent, factor, or trustee, by leaving with him a copy of the writ.

Under the provisions of this act, and in conformity with the simplicity, which has ever prevailed in all our legal proceedings, the general practice has been, for the creditor to insert in his writ, in general terms, a direction, that the officer leave with the garnishee, as the attorney, agent, factor, and trustee of the defendant, a copy of the original writ.

Enough is stated, to enable the officer to understand the duty he is required to perform, and give notice to the garnishee of the purpose for which the copy is left with him. The statute then informs him of the obligations imposed upon him, by the service of the process. To these averments in the writ, he is not required to make any plea or answer. The scire-facias, which follows, to enforce payment, generally contains but little more than a detail of the proceedings in the former suit.

But for another reason, this exception can not prevail. The defendant is described, not only as trustee, having the goods of Gale in his possession, but as being indebted to him. A debt due from the garnishee can only be attached by this process ; and there is, consequently, no necessity for saying that it can not otherwise be attached.

The provisions of the statute having been found highly beneficial in their operation, they have been greatly extended, by recent statutes; and yet the same simplicity of form has generally been retained in practice. The statute of 1784, authorizing the attachment of debts, as well as tangible property, renders it necessary to describe the garnishee in the original writ, as being indebted to the original defendant, in order to inform him, that the debt, as well as the property in his hands, has been attached.

The defendant in this case having been described as a debtor of Gale, the attachment of the debt is good, even if it should be invalid as to the personal property ; and consequently, the motion in arrest, upon this ground, can not prevail.

A new trial is also claimed for an alleged misdirection given to the jury in the court below.

Upon the trial, the plaintiff offered in evidence the original writ of foreign attachment, The defendant claimed, that it did not support the allegation in the declaration, as to the defendant's being a garnishee.

The writ directed copies to be left with the defendant, Russel Goe and Stephen Seymour, as they, or either of them, are the attorneys, agents, factors and trustees of Gale, and are indebted to him. This averment is certainly very loose and indefinite, and most carelessly expressed, and in a declaration or plea, could not stand for a moment.

But if, as we have already said, such an averment is to be treated, as notice to the garnishees, of the purpose for which the copies were left with them, and to which they were neither called upon to plead nor make answer, we are inclined to say, although not without much hesitation, that it may be deemed sufficient for that purpose; especially, when taken in connexion with the subsequent direction requiring them to appear before the court, and disclose on oath, whether they, or either of them, had, in their hands, the goods of Gale, or were indebted to him.

The charge of the court, that the attachment of the property in the hands of the defendant, and of the debt due from him, was not invalid, by reason of that defect, we are inclined to think, was not erroneous.

It is finally claimed, that the charge of the court in relation to the concealment of the property, was wrong.

The plaintiff offered evidence to prove, that on the eve of Gale's failure, the property was secretly removed to the defendant's premises; and from that time, the defendant held himself out to the public, as the owner; that when the sheriff called upon him, to serve the writ, he informed the officer, at none of Gale’s property in his possession. This, our opinion, was such a concealment, as within a reasona-ye constructjon 0f the statute, entitled the plaintiff to his writ 0f foreign attachment, and gave him a right to attach the goods in the defendant’s hands, although they might have been accessible to the officer.

The statute, having been made for the suppression of fraud, has always received a liberal construction. Cole v. Wooster, 2 Conn. R. 203. Enos v. Tuttle, 3 Conn. R. 27. Starr v. Carrington, Id. 278. Gager v. Watson, 11 Conn. R. 168.

Thus, while the body of a debtor was liable to imprisonment, and the goods of an absent and absconding debtor only could be attached, it was holden, that a debtor who had intentionally concealed himself from his creditors, or had withdrawn himself from the reach of their suits, with intent to frustrate their demands, was an absent and absconding debtor within the meaning of the statute. Fitch v. Waite, 5 Conn. R. 121.

So a person, who holds himself out to the world as the owner of the goods of another, declaring them to be his own, ought to be estopped from saying that they were not concealed iq his hands, and so concealed as to be liable to be attached, by process of foreign attachment.

We therefore advise the superior court to deny the motion for a new trial, and render judgment for the plaintiff.

In this opinion the other Judges concurred.

Motion in arrest overruled.

New trial not to be granted.

       In May, 1726.


source: Caselaw Access Project

license: Public Domain

text:
    Foster against Mix and another.

      New-Haven,

    July, 1850.
    Notice of the assignment of a debt, given by the assignee, to one only of two trustees, under an assignment by an insolvent debtor, pursuant to the act of 1828 against fraudulent conveyances, is sufficient to protect the property in the hands of such trustees against subsequent attachments, by the creditors of the insolvent debtor.
    Therefore, where A, having a debt against B, assigned it to C; B made an assignment of his property, under the statute, of 1828, to D and E, in trust for the benefit of all his creditors; after which C gave notice to D of A's assignment to him, C, but gave no such notice to E ; F, a creditor of B, then brought foreign attachment to obtain A's debt against B, as effects of B in the hands of D and E, as trustees; it was held, that the notice given by C to D alone, was notice to both trustees, thereby giving effect to A's assignment to C, and that F could take nothing by his process.
    Where it appeared, in such case, that E had paid over to F the dividend on the debt assigned to C; in an action against D and E, on their probate bond, it was held, that the want of notice to C, of the assignment, did not exonerate him from liability, as by the use of due diligence, he might have obtained from D, his co-trustee, the necessary information.
    This was an action upon a bond, given by the defendants; Caleb Mix and Julius Tuttle, to the plaintiff, as judge of probate for the district, of New-Haven; the suit being brought for the benefit of William Townsend.

    From the condition annexed to the bond, it appeared, that Elihu Cooper, an insolvent debtor, had assigned certain property to the defendant, Tuttle, and Edward J. Camp, in trust for the benefit of his creditors, pursuant to the statute in such case provided ; and that Camp had declined to accept the trust; and Mix, the other defendant, had been appointed thereto, by the court of probate, and had accepted the trust. The condition of the bond then was, that if Mix should faithfully perform the duties of such trustee, according to law, the bond was to be void, otherwise to be good and valid.
    The defendants pleaded performance. The replication stated, that at the time of the assignment, Cooper, the insolvent debtor, was indebted to Cooper & Rockwell, partners in trade, in the sum of 247 dollars, 92 cents, which debt they afterwards, on the 1st day of July, 1846, assigned to William Townsend, of which assignment due notice was given to the defendants, on the 21st day of December following, whereby Townsend became the equitable creditor; that this debt was duly allowed, by the commissioners, who made their report to the court of probate, on the same day; when the report was accepted, by the court of probate ; and that, on the 26th day of December, 1846, an order was made, that the trustees pay to the several creditors, a dividend of 19⅝ cents on the dollar ; and that it became the duty of the defendants, as trustees of the estate assigned, by the insolvent debt- or, to pay to Townsend the dividend upon the claim allowed by the commissioners to Cooper & Rockwell, which they had neglected and refused to pay.
    The defendants, in their first rejoinder to this replication, stated, that on the 22d day of December, 1846, and before the assignment to Townsend, or any notice to the defendants, or either of them, James T. Mix prayed out a writ, by process of foreign attachment, against Cooper & Rockwell, and caused copies to be served upon the defendants, as the agents, factors, trustees and debtors of Cooper & Rockwell; and having afterwards recovered judgment against them, for the sum of 93 dollars, 33 cents, damages, and costs, he caused a legal demand to be made upon the defendants, for the dividend allowed upon the claim of Cooper & Rockwell ; and that, in consequence thereof, they paid over to the officer upon that execution, the sum of 49 dollars, 60 cents, being the full amount of the dividend.
    In their second rejoinder, they traversed the allegations relating to the assignment of the debt to Cooper & Rockwell, and the notice to the defendants.
    The plaintiff traversed the allegations in the first rejoinder; and both issues were closed to the jury.
    The cause was tried before the superior court, in New-Haven, at the January term, 1849; when the jury returned a special verdict, stating, that they found that the assignment to Townsend was made, and notice thereof given to Tuttle, one of the defendants, previous to the writ of foreign attachment ; but that there was no evidence that such notice was ever given to Mix, the other defendant; and if, in the opinion of the court, it was not necessary for the plaintiff to prove such notice to Mix, then they found the issues for the plaintiff, and assessed the damages at 59 dollars, 2 cents ; otherwise, they found for the defendants.
    The question as to the judgment to be rendered upon this verdict, was reserved for the advice of this court.

      C. A. Ingersoll, for the plaintiff,
    contended, 1. That upon the first issue, the burden of proof was upon the defendants. They admit the allegations in the plaintiff’s replication, but set up other allegations, by way of excuse, for not paying, as it was their duty to do, unless such other allegations set up by them, are true. They say they are true, and that they are ready to prove them. If they do not prove them, judgment must go against them.
    2. That if the burden of proof was upon the plaintiff, enough is proved, to carry the case, on the first issue, for the plaintiff. The defendants admit, that the assignment was made, by Cooper & Rockwell, to Townsend; and that they had notice of such assignment, as alleged in the plaintiff’s replication. But they say, that before they, or either of them, had notice of such assignment, they were factorized at the suit of James T. Mix. The proof, as found by the jury, was, that Tuttle, one of the trustees, was notified before the foreign attachment process was served. There was no proof as to Mix. All the evidence in regard to him, was, his confession, in his rejoinder, that he had been notified. As the defendants tendered the issue, that neither of them had been notified, before the factorizing process ; and as the proof is, that one of them was notified before, judgment must be for the plaintiff.
    3. That notice to one of the trustees, is notice to all; they, like executors and administrators, being but one person. The act of one is the act of all; and notice to one, is notice to all. They are like partners, in this respect. 1 Sw. Dig. 443. 449. Knapp v. Hanford, 7 Conn. R. 132. Beecher v. Buckingham, 18 Conn. R. 110. 1 Williams' Ex’rs. 590. 2 Williams" Ex’rs. 620. Hammon v. Huntley, 4 Cowen, 493. If notice to one executor is proved, and nothing more appears, it shall be presumed, that he communicated it to his co-executor. 2 Williams, 1118.
    4. That the garnishee process in favour of James T. Mix, would give him no right, even if the debt had not been assigned to Townsend, and no notice had been given to the defendants.
    The attachment was on the 22d of December. The order for a dividend was on the 26th of that month. There was nothing due from the trustees until then. Stat. 120. Short v. Moore, 10 Verm. R. 446.

      5. That the issue found by the second rejoinder, is entirely an immaterial one. It is of no consequence, under this issue, whether notice was given to the defendants or not. An assignment of a chose in action, without notice, is good as between the parties ; and no person can complain of a want of notice, but he who has been misled, by the neglect to give notice. Bishop v. Holcomb, 10 Conn. R. 444.
    6. That the court will render judgment in favour of the plaintiff, notwithstanding the verdict. 6 Conn. R. 78.

      Ingersoll, for the defendants,
    contended, 1. That if the second issue is with the defendants, it must decide the whole case in their favour. This turns upon the question, whether the trustee, Mix, can be made liable on his official bond, for not paying a debt, which William Townsend claims by assignment, when the jury have found, that he, (Mix,) was never notified of any such assignment, though his co-trustee had notice. If the suit had been brought on Tuttle’s official bond, for his (Tuttle’s) neglect of duty, the question might have been very different. But the attempt here, is, to make Mix and his surety, responsible for the neglect or default of Tuttle. Now, though there is a community of interests among co-executors, administrators and trustees, yet there is no joint interest. Unlike the case of partners, where there is a joint interest, notice to one trustee cannot be notice to fix the liability of the other. Each is liable on his own bond, for his own default, and no further. 1 Greenl. Ev. 208, 9. § 176. 2 Greenl. Ev. 282, 3. 352. Kip’s adm’rs. v. Deniston, 4 Johns. R. 23.

    2. That that part of the second rejoinder, which says, that notice was not given to either of the trustees, is mere surplus-age. The plaintiff alleges, and is bound to prove, notice to both ; that is, notice to Mix. as well as to Tuttle. This we deny, and close to the country. The plaintiff closes to the country also, without noticing the superfluous matter just referred to. On this issue, he will not be permitted to pass over what is material, and fasten upon what is merely superfluous. A distinct averment, which can be stricken out, without injuring the other averments, will not vitiate a pleading. Hampshire Bank v. Billings, 17 Pick. 87. Lord v. Tyler, 14 Pick. 156. Stevens v. Bigelow, 12 Mass. R. 434. It would be unobjectionable, on demurrer. 1 Chitt. Plead. 265, 6.
    3. That if the view just presented were not decisive, and we are to look at the first issue ; the plaintiff then labours under the same difficulty, the want of notice to Mix, anterior to the suit of foreign attachment. It is objected, however, by the plaintiff, that the foreign attachment was brought too soon, and before any debt was due from the trustees, within the meaning of the statute: the jury having found, that the writ of foreign attachment was served on the 22d of December, 1846, whereas the order of the court of probate for the trustees to pay the creditors, was not passed till the 26th of the same month. The jury have, however, also found, that the report of the commissioners on the estate of Elihu Cooper, finding the debt due to Cooper & Rockwell from said estate, made to the court of probate for the district of New-Haven, was on the 21st day of December, 1846, and was on the same day accepted by said court, which was on the day before the service of the writ. The debt to Cooper & Rockwell thereupon became due, as soon as it was found due,-though not payable till the 26th, when the order was to pay it. See the act of June 17th, 1846, p. 22. session 1846. This act was an addition to the old acts in the edition of 1838, p. 287, now the 1st section of the last named act, authorizing the attachment of debts “ due”; and the 5th section of the same act, p. 290. (ed. 1838.) provides for the contingency, where “ the debt due to the principal is not yet payable”-the very distinction that we contend for here.
    It should be observed, in this connexion, that the finding of the commissioners, was of a debt, due, not to Townsend, but to Cooper & Rockwell; and the decree of the court of probate, sanctioned no debt due to Townsend. The acceptance of the report, and the order to pay, were of the same character, and never recognized Townsend as an assignee, or as an equitable or other creditor of the estate.
   Waite, J.

The jury in this case have found, that the debt due from Elihu Cooper to Cooper & Rockwell, was assigned to Townsend, and notice thereof given to Tuttle, one of the defendants, before the service of the writ of foreign attachment in favour of James T. Mix, was made upon the defendants. The question therefore, is, whether such notice, given to one of two trustees, but not to the other, will be sufficient to protect the property in the hands of the trustees, against subsequent attachments, by the creditors of the insolvent debtor.

To make such an assignment effectual, as against such creditors, it was necessary that it should not only be made, but that notice thereof should be given to the defendants, before the attachment, or within a reasonable time after the execution of the assignment. Bishop v. Holcomb, 10 Conn. R. 444.

The statute regulating assignments made by insolvent debtors, for the benefit of creditors, places trustees very nearly in the same situation, as executors and administrators of insolvent estates of deceased persons. It requires very nearly the same proceedings before the court of probate, in the one case as in the other. And the powers and duties imposed upon trustees, are, in most respects, the same as those conferred upon executors and administrators.

Where there are several executors of the same will, they are considered in law as an individual person. The acts of one regarding the administration of the estate, are deemed the acts of all. Proof that assets are in the hands of one of them, will support an allegation that they are in the possession of all. One may sell and dispose of the personal property, and collect and discharge the debts due to the estate. Knapp v. Hanford, 7 Conn. R. 132. Beecher v. Buckingham, 18 Conn. R. 110. Hammon v. Huntley, 4 Cowen, 493.

From these acknowledged principles, it would seem to follow, that whenever the law requires notice to be given to executors, it will be sufficient to give that notice to any one of them. The presentation of a claim against the estate of the testator, to one of them, will be as effectual, as if made to each and all of them, and will prevent the operation of the statute of limitations, which bars a suit for the recovery of a debt, unless the claim is presented to the legal representatives, within a limited time. Such, it is believed, is the practical construction given to the statute. And, in our opinion, the same rule applies to notices to joint trustees of the estate of an insolvent debtor.

And this is in conformity with the doctrine recognized in the English court of chancery. Maberly, being indebted to Smith, assigned to him, by way of security, his life interest in certain funds under his marriage settlement, and afterwards became a bankrupt. The assignee having mentioned his security to one of the trustees, before the bankruptcy occurred, the question was, whether after such notice, the fund, at the time of the bankruptcy, was in the power and disposition of the bankrupt. Lord Lyndhurst, in delivering the judgment of the court, observed : “ It was argued that notice to one only of three trustees was insufficient-that it should have been given to each of them ; and that this not being done, the property remained in the order and disposition of the bankrupt, up to the time of the bankruptcy; but we are of opinion, that notice to one of the three trustees, was sufficient. No valid assignment could have been made, by the bankrupt, after the notice to the trustee : a second assignee, in order to have obtained a priority over the first, must have shown, that he had exercised proper precaution in taking the assignment; that he had applied to the trustees to know if any previous assignment had been made ; and if he had applied to each of them, he would have been informed, by one, of the previous assignment to Smith, and he must then have taken the property, if at all, subject to the claim of Smith.” Lewin on Trustees, 506.-citing Smith v. Smith, 2 Cr. & Mees. 231.

This case arose under the English bankrupt laws ; but the reasoning of the chancellor shows, that the principle applies equally to the claims of subsequent assignees. And by our law, the same diligence is required of a subsequent attaching creditor, as is required of a subsequent purchaser.

Upon the authority of this case, James T. Mix, the attaching creditor, by his attachment, acquired no lien upon the property as against the assignment made to Townsend. For if he had enquired of Tuttle, he might have been informed of that assignment.

It is however said, that the present suit is upon the separate bond of Mix, and that he ought not to be affected, by any notice which was never communicated to him. But it was his duty, before he paid over the dividend in his hands, to the attaching creditor, to make enquiry, and ascertain whether that creditor was legally entitled to it; or whether it belonged to some other person. Had he consulted his co-trustee, the necessary information might have been obtained.

If the suit had been brought upon the separate bond of Tuttle, he would have had much more cause for complaint, as he has done no wrong, unless his omission to inform his co-trustee of the notice which had been given to him, may be considered such. The fault is in Mix, in paying the dividend to a person not legally entitled to it, and in withholding it from the rightful owner.

We are, therefore, of opinion, that the plaintiff is entitled to judgment upon the verdict: and so we advise the superior court.

In this opinion the other Judges concurred.

Judgment for plaintiff.


author: Hinman, J.

text:
    Pardee against Platt.
    Where a justice of the peace, on a complaint to him for a violation of the statute of 1846, regulating the sale of wines and spiritous liquors, by keeping a store or shop for the purpose of selling wine or spiritous liquor, to be drunk thereat, the defendant not being a taverner, after finding probable cause, ordered the defendant to become bound in a recognizance for his appearance before the next county court, to answer such complaint; and the defendant became bound accordingly; it was held, 1. that the justice of peace had no power to make such order; 2. that the statute of 1848, defining the jurisdiction of courts in criminal cases, did not take away from justices the power to impose a greater fine than seven dollars; 3. that the recognizance so given was invalid, and an action founded thereon, could not be sustained.
    This was an action of debt on a bond of recognizance, brought by Stephen D. Pardee, as treasurer of the county of New-Haven, against Zenas M. Platt, demanding 150 dollar.
    The recognizance was taken fay Henry Whitney Esq., a justice of the peace for New-Haven county, on a complaint exhibited to him, by a grand-juror, alleging, that said Platt, at Derby, on the 1st day of July, 1848, and on divers other days between that day and the 28th day of October, 1848, not being a taverner, kept a certain store or shop, for the-purpose of selling wine or spiritous liquors, to be drunk thereat, against the peace, of evil example and contrary to the statute in such case made and provided. Platt was arrested and brought before Justice Whitney; who, having en-quired into the matters alleged in such complaint, was of the opinion that there was probable grounds for supporting it, and thereupon ordered, that he become bound in a recognizance of 100 dollars, with surety, to the treasurer of the county of New-Haven, that he appear before the county court of that county, on the fourth Tuesday of November, 1848, to answer said complaint and abide the decision of the court thereon. This order was complied with. At said court, the attorney for the state in that county filed an information, charging, in several counts, the same offence as that set forth in the grand-juror’s complaint; but Platt and his surety made default of appearance, and thereby became liable to pay the amount of the recognizance.

      New-Haven,

    July, 1850.
    The defendant demurred to the declaration ; and the court reserved the case for the advice of this court.

      Ingersoll, in support of the demurrer,
    contended, l. That the justice before whom the defendant was prosecuted, had no authority to take the recognizance for his appearance before the county court, on finding probable cause. The act on which the prosecution is founded, provides, that the case, should be “ heard and adjudged” by the justice. The county court could have nothing to do with it, except by appeal from the judgment of the justice. See sect. 5. of the act regulating the sales of wines and spiritous liquors, passed in 1846, p. 47. of the session statutes ofthat year ; and sect. 15. p. 600., of the Revised Statutes, 1849. See also Barnes v. The State, 19 Conn. R. 404. where the court say, “the general limitation to seven dollars in criminal cases, is not the rule in this instance.”
    2. That the act of 1848, defining the jurisdiction of courts in criminal cases, so far as it relates to justices of the peace, (see the acts of 1848, p. 25. of the session of that year,) was but cumulative to the old law, (sect. 122. p. 171. of the edition of 1838,) and did not, by implication, modify the then existing acts giving jurisdiction specially to justices, in certain cases, beyond seven dollars fine.
    The revision of 1849, passed at the session of 1848, reenacts, in terms, the act of 1846, which gave the justices, in cases of selling liquors unlawfully, the extended jurisdiction beyond seven dollars ; and it would be absurd to suppose, that the same legislature (1848) intended, at the same time, to restrict it; especially, when the restriction contended for could only operate from the rising of the assembly, 28th June, 1848, to the 1st January, 1849. Such an intent will never be implied. “ Nor hath a later act of parliament ever been construed to repeal a prior act, unless there be a contrariety or repugnancy in them, or, at least, some notice taken of the former act, so as to indicate an intention in the law given to repeal it.” Dwarris on Statutes, top p. 31. side p. 675. of Law Library. "Thus it is generally to be taken, that the legislature only meant to modify or repeal the provision of any former statute, in those cases where such object is expressly declared.” Dwarris, top p. 56. side p. 717. See also p. 62. (top) 726. (side) 80. (top) 756. side. Davies v, Fairbairn, 3 Howard, 636. and cases cited. Wood v. United States, 16 Peters, 362. Williams v. Potter, 2 Barbour, 320. Bowen v. Lease, 5 Hill, 226.
    The doctrine contended for by the state, would not only oust the justices of their jurisdiction in this case, but of all other cases where the fine might be over seven dollars, or the imprisonment over thirty days. Thus, by the act concerning work-houses, sect. 7. p. 657. of the edition of 1838, a large class of offenders might be sentenced to imprisonment, by justices, for forty days, for the first offence, and eighty, for the second. The act of 1841, p. 228. sect. 8. of the laws of that year, and the act of 1845, p. 31. sect. 1. of the laws of that year, empower the justices to commit such offenders either to the county jail or the work-house ; and the consequence of the construction now contended for, by the other side, would render all those commitments invalid, and the justices liable in damages to the parties injured. The same may be said of the act of 1844, p. 42. of the acts of that session, which imposes a fine of seventeen dollars, in certain cases, and gives jurisdiction to the justices.

      Further, the revision of the crimes act of 1830, (by Judge Bristol and C. J. Church,) sect 123. p. 278. has much the same limitation in it, as the act of 1848, now relied on by the state. But did any one ever suppose, or has the construction been practically, that this limitation ousted the jurisdiction under other acts then in force, where the punishment might be different, or exceed in amount the limitation referred to? Did it repeal, by implication, their power to send to the work-house for forty or eighty days? See edition of 1821, p. 482. sect, 8. Did it take from justices their jurisdiction under the 7th section of the old tavern act, (p. 444. revision of 1821) which authorized them to fine ten dollars, and twenty dollars?
    3. That the recognizance is not binding, if the justice had no authority to take it. The case of Waldo v. Spencer, 4 Conn. R. 71. may be cited contra. But in that case, the binding was to the right court. The statute required the justice to take bond for the prisoner’s appearance at that court; and although the condition added what had usually been added, but which was superfluous, yet the court held, that the superfluous part of the condition would not vitiate the part that was good. It was the same in County Treasurer v. Burr, 1 Root, 392. and in the Massachusetts cases relied on in Waldo v. Spencer, Here however there is no part good. And in Darling v. Hubbel, 9 Conn. R. 353. this court say, “ If this case was a case over which the county court had jurisdiction, the bond was properly taken to the county treasurer ; if they had no jurisdiction, it is equally clear that the bond was improperly taken.” And again, “Now if no such bond could be required, it would seem as if the requisition must be illegal; and therefore, the bond so exacted, must also be illegal.” See Purple v. Purple, 5 Pick. 226. Billings v. Avery, 7 Conn. R. 236. Commonwealth v. Leveridge, 11 Mass. R. 337. Vose v. Dean, 7 Mass. R. 280. Dow v. Prescott, 12 Mass. R. 419. Commonwealth v. Otis, 16 Mass. R. 198. Harrington v. Brown, 7 Pick. 232.

      C. A. Ingersoll, (state’s attorney,) contra,
    contended, 1. That the act of 1846 (see statutes of that year, p. 45, 47.) did not take from the county court, or give to a justice of the peace, jurisdiction of the offence charged in the grand-juror’s complaint. Did the power to finally try, take from him the power to bind over ?
    2. That if the act of 1846 gave exclusive jurisdiction to a justice, the act of 1848 (see statutes of that year, p. 25. & seq.) took all power from a justice, to finally try for an offence the penalty of which was over seven dollars.
    3. That a justice, after the act of 1848, had no power to finally try, until the revision of 1849 went into effect; which was on the 1st of January of that year. All the laws of the revision were then of binding force. One does not repeal the other. They were all passed, or reenacted, at one and the same time, to take effect on the 1st day of January, 1849. By the laws of that revision, jurisdiction is given to a justice in some cases where the penalty is over seven dollars. The case of Barnes v. The State, 19 Conn. R. 398. was for an offence committed, and the prosecution was commenced, subsequently to the revision of 1849.
   Hinman, J.

The defendant was brought before Justice Whitney, on a grand-juror’s complaint, charging him with having kept a store or shop, for the purpose of selling wine, or spiritous liquors, to be drunk thereat, he not being a tav-erner ; and the justice, finding probable cause in support of the charge, and supposing that he had not jurisdiction to impose the fine prescribed by statute for the offence, ordered, that he become bound in a recognizance of 100 dollars for his appearance before the county court, then next to be holden in the county. The recognizance in suit was entered into, pursuant to this order ; and the defendant having neglected to appear at the county court, the question is, whether he is liable for such neglect.

The proceedings were all regular in point of form. The question therefore, is, whether the justice had authority to bind the defendant to appear before the county court, in the first instance ; or, whether it was not his duty, to hear and determine the cause, subject to the defendant’s right to appeal, if not satisfied with the decision of the justice.

It is claimed, that the statute, under which the proceeding was instituted (acts of 1846, p. 45. 47.) does not give jurisdiction exclusively to justices of the peace ; but that it is discretionary with them, either to impose the fine prescribed, or, to bind the delinquent to the county court.

We do not so construe the statute. By the 5th section, it is provided, “ that all informations or presentments for of-ences against any of the provisions of this act, whether made and preferred by an informing officer, or by any other person, may be heard and adjudged by a justice of the peace ; but the accused may appeal from the judgment of such justice to the county court.” Here jurisdiction is clearly given to justices of the peace ; and in the general statute, regarding the jurisdiction of the county court, in criminal cases, it is provided, that that court shall have jurisdiction only of all offences and crimes appealable from justices of the peace and not given to the sole jurisdiction of the superior court or justices of the peace.

The provision is the same, in regard to the exclusive jurisdiction of justices, in the revision of 1849. It is, that the county court shall have sole jurisdiction of all appeals from justices, and of all offences whereof the punishment does not exceed a fine of 200 dollars, and imprisonment in a common jail, or county work-house, not exceeding six months, “except of such offences as are given to the sole jurisdiction of justices of the peace.” Rev. Stat. 254. § 149.

These statutes, taken together, we think, necessarily exclude the county court from any original jurisdiction in cases of this sort. It is true, that the act giving jurisdiction of cases arising under it to justices of the peace, does not, in express terms, say, they shall have sole jurisdiction. Nor does the general statute, authorizing them, in criminal cases, to impose a fine of seven dollars. It merely provides, that they shall have cognizance of all offences punishable by fine not exceeding seven dollars. This has always been understood to give justices exclusive jurisdiction to the extent of imposing a fine of that amount. And we think the same language in the statute of 1846, should receive a similar construction.

Again, it is claimed, that the act of 1848, (p. 25. of acts of that year,) took away from justices the power to impose a fine to any greater extent than seven dollars; and thus, by implication, the fine in this case being fixed at ten dollars, conferred jurisdiction upon the county court. It is apparent, that this was not the intention of the legislature. The revised statutes of that year went into operation on the 1st of January, 1819; and in them, the act of 1846, with its extended jurisdiction to justices, was reenacted. It cannot be supposed, that it was intended to exclude justices from the trial of cases under that act, for the limited period, between the rising of the assembly, in June, 1848, and the 1st of January, 1849. No reason existed for such exclusion ; and its effect would have been, to deprive justices of the power of committing vagrants to the work-house, for the period of forty days, as well as to take from them the power of imposing fines in prosecutions relative to the sale of spiritous liquors. This can hardly be supposed, without doing great injustice to the legislature.

But the act of 1848 is only a reenactment of the general limitation of justices’ jurisdiction in criminal cases : no new provision was intended by it. It is the same provision as was contained in the revision of 1821, and in the edition of 1838 ; and has, in substance, existed for a long time. Whether it was necessary for any purpose, to reenact it, is of no importance. It has never been supposed, that the reenactment of this general provision, as has been done, from time to time, whenever there has been a revision of the statutes, had any effect to deprive justices of their enlarged jurisdiction, in those specified cases where this general provision has been modified.

We are satisfied, for these reasons, that the recognizance is invalid, and the declaration founded on it, consequently insufficient: and so we advise the superior court.

In this opinion the other Judges concurred.

Demurrer sustained.


author: Church, Ch. J.

text:
    Culver against Hall and others:

      New-Haven,

    July, 1850.
    IN ERROR.
    In the process of foreign attachment, a demand of the principal debtor, upon the execution against him, is not necessary, in order to protect the garnishee in the payment of the amount in his hands due to the principal debtor.
    The original action was book debt, brought to the county court of New-Haven county, by Andrew J. Culver against Joel Hall 2d and others. The defendants pleaded the general issue, with notice of special matter to be given in evidence ; and the cause was tried in the county court, November term, 1849.
    On the trial, the defendants claimed to have proved, that before the commencement of this suit, the debt demanded in the declaration was secured in the hands of the defendants, by process of foreign attachment, to pay such judgment as Bur-det Cannon, a creditor of the present plaintiff, should recover in his action brought against the present plaintiff, by writ, dated the day of , and returnable before Samuel H. Dutton, Esq. a justice of the peace for New-Haven county; and that judgment was recovered in that action, by said Cannon, for his debt and costs; that upon the judgment execution was lawfully issued, and the officer serving it was directed to make demand of the present defendants, as gar nishees, of any debt due from them to the judgment debtor; and that upon such demand being made, the defendants paid to the officer, upon said execution, so much of the debt, owing by them to the present plaintiff, as would satisfy said execution and officer’s fees ; and therefore, they claimed to be discharged from farther demand of the debt so paid.
    But the plaintiff claimed, that although it did appear from the return of the officer serving this execution, which was the only evidence offered to that point, by the defendants, that upon demand by him made upon the defendants, as garnishees, they had paid the amount; yet inasmuch as it did not appear by said return, that a prior demand had been made upon the defendants in the execution, for the debt due upon such execution, the garnishees could not be protected, by the statute relative to foreign attachment, in making such payment ; and thereupon the court ruled, that as it did not appear from the officer’s return, that a demand had been made upon the defendants, prior to the demand made upon the garnishees, they, the garnishees, were not protected in the payment so made by them : and judgment was rendered for the plaintiff.
    On motion in error, by the defendants, the cause was removed to the superior court; and the parties being heard thereon, at the January term. 1850, the judgment of the county court was reversed. The original plaintiff, by motion in error, then brought the record before this court for revision.

      Doolittle, for the plaintiff in error,
    contended, That a demand of the defendants in the execution for the debt mentioned therein, was necessary, in order to protect the garnishees in the payment made by them ; and in support of this position, he suggested the following considerations.
    First, in the levy of an execution, it is the officer’s duty, as the first step of his proceeding, to make demand of the sum due on the execution, as an essential prerequisite to any ulterior proceedings. Stat. 97. Dutton v. Tracy, 4 Conn. R. 365.
    Secondly, the object of this statute is, to give the debtor an opportunity of payment, or of exposing such goods as may be least injurious to him ; and to prevent unnecessary costs. This is a matter stricti juris. It is the privilege of the debtor, guarantied to him, by the statute, to prevent, by payment, unnecessary costs, and a levy on his property.
    Thirdly, the object of the statute of foreign attachment is, to enable the attaching creditor to create a lien on property in the hands of a third person, when the attaching creditor can not reach the property, by the ordinary process. It is then an extension of the rights of an attaching creditor in addition to the ordinary process. The statute of foreign attachment, then, does not repeal any of the provisions of the statute relating to the ordinary process of attachment, but is merely an extension of that statute.

    Fourthly, the form of the execution, and the officer’s duty, are precisely the same, with this exception, that the officer
      may make a demand upon the garnishee, if the creditor directs him to do so.
    Fifthly, the officer may attach, on the original writ, the property of the defendant, and also leave copies with a garnishee, thereby creating a lien on other property. After judgment, the officer may, with the same execution, levy upon the debtor’s property ; and if sufficient property is not found, by the officer, to satisfy the execution, may make demand of the garnishee.
    Can the officer do this, without having made demand on the defendant, the original debtor? Is it so, that an officer must make demand before he levies upon the debtor’s property, and yet, if he happens to find his property in the hands of the garnishee, he may levy upon that, without demand or notice to the debtor?
    Sixthly, according to the established practice, every declaration in scire-facias alleges, that a demand has been made upon the original debtor prior to a demand on the garnishee. And such an allegation has been considered material.
    Seventhly, the garnishee is not justified in paying over illegally. In law, it is no payment. Cole v. Wooster, 2 Conn. R. 203.

      C. R. Ingersoll, for the defendants,
    contended, 1. That they, as garnishees, are protected from any suit for the debt paid to the officer holding the execution against Culver, by the provisions of the act relating to foreign attachment. Stat. 111. sect. 232.
    It was taken out of their hands, by “ process and judgment of law having, by the original “ process,” been “ secured in their hands to pay such judgment as the plaintiff should recover (sect. 229.) and being by the “judgment” rendered in favour of the plaintiff made “ liable to, pay the same.” sect. 230. See Cutler v. Baker, 2 Day, 498. And whatever the garnishees have done was done “ in compliance with the act.”
    The only “ duty” required by the act, of the garnishee, is to hold secure the goods and effects of the defendant;, and the debts due him, “ to pay such judgment as the plaintiff shall recover;” (sect. 229.) and on judgment being rendered, and execution prayed out, and demand upon him made, by “ the officer serving the same,” to “ expose the goods and effects, to be taken on executionand to “pay” the debt due to the defendant. Sect. 230. The defendants have done nothing more nor less than this. They have only done their “ duty,” in literal “ compliance with the act.”
    This process being founded entirely on the statute, its directions should be closely followed ; especially, as they prescribed the duly and liability of the garnishee, who, outside of this statute, is unknown to our law. But such directions being followed, the same statute will afford effectual protection to the garnishee.
    2. That the general law regulating the levy of executions (Stat. 88. sect. 175.) is not applicable to this case, and does not require a demand of the original debtor, as a prerequisite to the protection of the garnishee. The object and mode of proceeding in foreign attachment, are entirely different from those of the general law.
    The object of the original foreign attachment act, (Stat. 61. ed. 1808.) is declared, in the title of that act to be, “ the recovery of debts out of the estate of absent and absconding debtors.” And under that act, up to the statute extending this process to debtors discharged from imprisonment, (Stat. 293, 4. ed. 1838.) and finally extending it to all debtors (Stat. of session of 1843, p. 32.) the “garnishee was not liable to be sued, unless the principal was (in fact) an absent and absconding debtor,” “ residing out of the state,” or “ so concealed that he can not be served with, or his property taken by, ordinary process” 1 Root, 276. 295. Fitch v Waite, 5 Conn. R. 117.
    This process was, therefore, an extraordinary process, really against “ the estate” of the absconding debtor ; and if no “ estate,” was in the hands of the garnishee, the court had no jurisdiction. And this " estate,” contrary to the general law, could be secured in the hands of the garnishee, though the original process against the debtor, was by summons.

    Upon the same idea, the debtor being regarded as fraudulently out of the way of ordinary process, it would have been absurd for the legislature to suppose a demand necessary to be made upon him, or at his “ usual abode,” before his property could be subjected to execution.
    But by the second section of the act of 1843, (Stat. of that year, p. 32.) extending this process “ the proceedings under the above (first) section of this act, shall be the same as are prescribed” by the former act. And the “ same proceedings” are preserved in the Revised. Statutes of 1849.
    But further: this act has for its particular object, the application to the payment of a creditor, of the debts owing from third persons to his debtor. Now, this is a kind of property, which is not liable to the general law of attachment ; which can not “ be exposed and taken on execution,” “ granted against the goods, chattels, and lands of a debtor and which, except by this process, and in the manner provided by this statute, is wholly unavailable to the satisfaction of a judgment. See Grosvenor v. Farmers and Mechanics Bank, 13 Conn. R. 104.
    What applicability, then, have the proceedings under the general law of execution (sect. 175.) to this proceeding to obtain payment of a debt? By the garnishees paying his debt to the officer, there is no levy made, any more than when the defendant himself pays the sum clue on an execution ; nor is the defendant subjected to more costs, or to any greater disadvantage, in the one case than the other.
    3. That if a demand upon the execution debtor, (when within the state,) is a necessary prerequisite to the levy of the execution upon the goods or effects exposed by the garnishee, or to the application of the moneys received of the garnishee upon the execution, the garnishee ought not to be prejudiced, by this failure of duty, on the part of the officer.
    The liabilities and duties of the garnishee, are simply in respect to the properly in his hands. He is constituted the mere holder of that property, with no other obligation than “ not” otherwise to dispose of it, than by “ exposing” the goods and “ paying” the debt, upon judgment being rendered and demand made. And these “prerequisites” to his action he has notice of
    Now, the demand upon him is not the commencement, nor is his act of exposing the goods, in order to subject them to execution, any part of the levy. His “ duty” is performed, when he has brought the property to light. The officer is responsible for the rest. Any other construction would place the garnishee in a most unreasonable and unjust position. What evidence can he have, that a demand has been made upon his principal ? What, even that his principal is within the state, and so entitled, or not, to a demand ? The act certainly provides none; and yet for want of it, (according to the claim of the plaintiff.) he is exposed to a scire-facias, on one hand, or a suit in the name of his principal, on the other.
   Church, Ch. J.

The proceeding, so long known to us, as a foreign attachment, was introduced into our system of jurisprudence, from a somewhat similar custom of London, as early as in the year 1726, by a statute entitled, “An act for the recovery of debts out of the estate or effects of absent and absconding debtors.” This statute, with various modifications, has continued, as a distinct statute, until the revision of 1849, when it was made part of the general act, “ For the regulation of Civil Actions.” The provision for attaching or securing debts, by this process, was not introduced until 1784. The mode of proceeding under this law, is regulated by the law itself, without recourse to the provisions of other statutes, applicable to other subjects.

The revised statute of 1849 for the regulation of civil actions, ch. 14. sect. 175. of Executions, is but the re-enactment of the former provisions of the law on the same subject, but does not relate to the proceedings in foreign attachment, but applies to cases in which the goods, lands or body of the defendant are to be taken or levied upon, by execution. Then, to be sure, before the execution can be thus levied, a previous demand, by the officer, of the defendant, must be made ; and for this the reason is obvious; it is, that, the execution debtor may have an opportunity, by payment, to protect his chattels from sale at a sacrifice, or his lands from being taken by an appraisal not his own, or his body from imprisonment.

But no such demand is required by the statute regulating proceedings in garnishment; a demand of the debtor in the execution is not alluded to, in these proceedings; nothing more than that the plaintiff, on praying out his execution, may direct the officer serving the same to make demand of the garnishee, of the goods and effects in his hands, whose duty it shall be to expose the same to be taken on the execution, and also to make demand of such debtor (the garnishee,) of any debt due to the defendant; and it shall be the duty of such debtor to pay the same. This statute directs no levy to be made upon the goods or lauds of the defendant, nor upon his body; and therefore, it does not require a previous demand to be made of him. The object of this proceeding is, not to coerce the defendant, but to lay a foundation for further proceedings against the garnishee, if he refuses to pay, &c. on demand of him.

If the garnishee, upon demand made of him, actually exposes or turns out to the officer the defendant’s goods, he will be discharged ; or if he pays the debt due from him, he will be discharged ; but if the officer actually levies upon goods thus exposed, whether, in such case, he shall be bound to make demand before levy, we do not decide ; such is not the present case. In this case, the garnishee, upon demand made of himself, has, in good faith, paid his debt to the officer.

Our factorizing law, as we sometimes call it, never contemplated a demand upon the defendant; he was always supposed to have absconded, and to have gone beyond the reach of a demand. The garnishee is the only person pursued ; he is treated as the substitute of the absent debtor, and may appear and defend for him, if he will; he stands in his place; and, of course, no other demand than upon him, can, for any good purpose, be required. It is but recently, that this process could be pursued, unless the defendant was absent, or had absconded ; and because now, this remedy has been extended so as to reach debtors at home, as well as absent, this can not justify the introduction of a new construction of the law, nor impose a new duty upon an officer, not directed by the statute.

The authority of Judge Swift supports our views. He says, that it must be alleged in the scire-facias against the garnishee, to subject him, that demand was made upon him ; but he does not intimate, that an allegation of demand upon the original defendant in the execution, is necessary, 1 Sw. Dig. 730.

To hold, under such facts as appear upon this record, the present defendant to be liable, after he has once, in good faith, paid the debt under the factorizing process, would be hard and unjust. He was not bound to know, and he had no means of knowing, whether a demand had been made of the defendant in the execution. If such demand was, in. point of law, necessary, he was justified in presuming that -the officer had performed this previous duty, and he was justified in acting on that presumption, in the payment of the money to him.

There is no error in the judgment of the superior court.

In this opinion the other Judges concurred.

Judgment affirmed.


author: Storrs, J.

text:
    Bray and others against The town of Wallingford.
    A debt due to a territorial corporation in this state, capable of contracting debts and liable to be sued fur them, may be secured, by the process of foreign attachment.
    The principles of justice and equity require, that the property of a person, which consists of debts due to him, should, equally with his other property , be rendered available to his creditors ; and the object of this process is, to give effect to such principles.
    This was a scire-facias in the process of foreign attachment, to secure and recover a debt due to the plaintiffs from Dwight Hall, for which they had obtained a judgment against him.
    The defendant demurred to the declaration ; and the questions of law arising on the demurrer, were reserved for the advice of this court.

      Blackman, in support of the demurrer,
    contended, That the process of foreign attachment cannot be sustained against a town in this state.
    Towns, as well as “public officers, having money in their hands, to which certain individuals are entitled, are not liable to the creditors of those individuals, in the process of foreign attachment.” Stillman v. Isham, 11 Conn. R. 124.
    Although it may be true, that a pecuniary corporation is liable to the process of foreign attachment, on the other hand " it has often been decided, that officers in the execution of public duties, are not to be embarrassed and perplexed with this process.” Ward v. County of Hartford, 12 Conn. R. 409. See other remarks of Ch. J. Williams, in giving the opinion of the court in that case.
    New-Haven,
    July, 1850.
    In the case of Stillman v. Johnson, 11 Conn. R. 127. the same learned judge says, “ while the court are desirous to continue the liberal construction which has been given to the statute authorizing this process, they must not extend it to cases not within its spirit, by which others, who are in the execution of public trusts, would be subjected to serious inconvenience.” This principle is advanced, by Ellsworth and Perkins, arguendo, in Knox v. Protection Ins. Co., 9 Conn. R. 431.
    The pervading principle in all the cases, is, that public officers, who are bound to transact the public business, by certain rules, and in certain forms, shall not be exposed to the expense, the inconvenience and hazard incident to this process.” 11 Conn. R. 127.
    It would be intolerable to subject town treasurers, and treasurers of school districts, and of other territorial corporations, to the vexations, delays, and expenses, of settling their accounts, by this thankless process, which awards no costs to the garnishee, if he is found indebted. (Rev. Stat. 116. 117. 118. 119.) And, if he neglects or refuses to disclose, being summoned, subjects him to the payment of costs, upon scire-facias, though it shall appear he was not indebted. Rev. Stat. 119, 120.

      C. A. Ingersoll, after remarking,
    that the statute relating to foreign attachments, (see Stat. 115.) provides, that when debts are due from any person to a debtor, such debts may be attached, (Stat. 115.) contended, 1. That a corporation is a “person within the meaning of the statute.” Knox v. Protec. Ins. Co. 9 Conn. R. 480.

      2. That under this statute, when a debt is voluntarily contracted, by an individual or corporation, and is due from such individual or corporation, and is of such a character that such individual or corporation can be sued for it, by the creditor of such individual or corporation ; that in such a case, the debt can be attached, by the process of foreign attachment. And ⅛ makes no difference, whether such corporation be a bank, . ‘ company, borough, town, or any other kind of corporation. If there is a debt due, which has been voluntarily contracted, the process of foreign attachment can be sustained. Knox v. Protect. Ins. Co., 9 Conn. R. 430. Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. R. 141. 10 N. Hamp. R. 96. 13 N. Hamp. R. 502. 5 Barr, {Penn.) 115.
   Storrs, J.

The only question presented in this case, is, whether a town is subject to the process of foreign attachment, in a suit brought against its creditor.

There is no doubt that the word “ person,” used in the general statute on this subject, where it provides, that “ debts due from any person to a debtor,” may be secured in his hands, by that process, to pay such judgment as the plaintiff shall recover against such debtor, is sufficiently comprehensive to embrace, not only a natural person, but also a corporation. This point was determined in Knox v. The Protect. Ins. Co., 9 Conn. R. 430. Although it was there only necessary to decide, whether the statute applied to pecuniary corporations, we discover no reason why it is not also applicable to territorial corporations, such as towns, &c., which have the power to make contracts, and are liable to actions for debts due by them. They are indeed a different species of corporations, and instituted for different purposes from ordinary pecuniary corporations ; yet in regard to the question, whether their artificial character should exclude them, being embraced within a term in a statute of this description, the object of which was, to designate debtors generally, and to appropriate what they owe to the benefit of the creditors of those to whom they are indebted, there does not appear to be any sensible reason why they should not be included in such term equally with corporations of any other kind. They are also clearly within the spirit and object of the statute, unless indeed it can be shown, that there would be such special inconveniences attending an application of it to them, as to show that they were not intended, by the legislature, to be embraced in it. The genera] principles of justice and equity, which require that that particular species of property owned by a person, which consists of debts due to him, should, equally with his other property, be rendered available to his creditors, and which induced the legislature to make them so, obviously apply as fully to debts due to him from municipal or territorial, as other corporations, or from natural persons. And at the present time especially, when corporations of that description, particularly our cities, are becoming great money borrowers, and that with the express sanction of our legislature, it would be gross injustice, and a great grievance to those to whom their creditors are indebted, if there was no mode, by which they could reach, by legal process, the indebtedness due by such corporations. The general policy of our laws is to subject all the property of debtors to the payment of their debts ; and we may fairly infer, that even a doubt in the minds of the legislature, whether debts due from these bodies, could be legally appropriated to the benefit of the creditors of those to whom they are due, would have constituted an insuperable objection against extending to such corporations, as liberally as has been done, the power of contracting debts. Especially may we so infer, when we see that it has become the policy of the legislature to enlarge, rather than restrict, the benefit of the foreign attachment laws ; they having been recently extended expressly, for the first time, to legacies and distributive shares due from the estates of deceased persons in the hands of executors and administrators, which, it had been decided, by this court, could not be attached under the foreign attachment law, as it was originally passed ; and the adoption of this just and equitable policy is entitled to no little weight with us, in giving a construction to the statutes on this subject. It is therefore incumbent on the defendants to show, that some special inconvenience would attend an application of these laws to those various municipal or territorial corporations, which may contract and be sued for debts, which would render it unfit or improper to extend them to these bodies. In this, we think, that the defendants have failed. In Ward v. The County of Hartford, adduced by the defendants, we held, that a county could not contract a debt for which an action would lie against it; and therefore, that there was no legal liability in that case to the defendant, in the original suit, which could be attached under the foreign attachment law, or in that manner appropriated to his creditor ; a reasort which does not apply to our towns, cities or boroughs, or to any of those territorial corporations, which may incur, and be sued for, debts. The defendants, therefore, derive no aid from , , . decision.

The delays and embarrassments which might be experienced, by these bodies, in the adjustment and settlement of their accounts, if they are subject to this process, have been urged as a reason why they should be exempted from it. It was on this ground, that it was decided, that a legacy or distributive share, in the hands of an executor or administrator, was not subject to a foreign attachment, The legislature, however, did not consider that an insuperable objection, and extended this process to them. We perceive no inconvenience to these corporations, in this respect, which does not equally apply to other corporations and natural persons; and this argument would seem to apply, much more strongly, to executors or administrators, than to either of these.

Nor do we perceive the force of the objection, grounded on the supposed impracticability or difficulty of obtaining a disclosure from territorial corporations. Such disclosure may readily and easily be made, through their proper officers, in the same manner as in the case of other corporations, and with no greater inconvenience.

We advise, therefore, that judgment be rendered for the plaintiffs.

In this opinion the other Judges concurred.

Demurrer overruled.

         See Winchell v. Allen, 1 Conn. R. 385. Stanton, adm’x. v. Holmes, 4 Day, 87.


author: Cijürch, Ch. J.

text:
    Mix and others against Cowles and another:
    IN ERROR.
    In September, 1846, A mortgaged land to B, to secure the payment of sundry notes. A afterwards executed a mortgage deed of the same land to C, to secure the payment of a note for 200 dollars; the deed being dated the 17th of January, 1848, but delivered to C and accepted by him, on the 15th. Previous to the 18th, there existed no indebtedness whatever from A to C; but the securities were given and taken upon an arrangement between A and C, by which C was to open an account with A, and sell him goods, and A was to make such payments that the balance against him should, at no time, exceed 200 dollars. Immediately after the securities were perfected, on the 18th, C opened an account with A, and sold him goods, to the amount of 103 dollars. The account continued until the 20th of October, 1848, when it was closed ; the balance against A, which, at no time, had amounted to 200 dollars, being then 180 dollars, which, with interest, remained due. After the execution of the mortgage from A to C, A conveyed his equity of redemption to B, on B's giving up to A the mortgage notes against him. On a bill to redeem, brought by C against B, it was held, 1. that the mortgage deed to C, became effective, on the 18th, when it was delivered to and accepted by him ; 2. that the securities and arrangement of the 18th, including the sale of goods by C to A, were to be considered as one transaction ; 3. that the condition of this mortgage deed was, in its legal effect, strictly according to the truth, and was not exceptionable, as not disclosing, with sufficient certainty, the nature or extent of the incumbrance; 4, that B was not in the position of a purchaser for a valuable consideration, but of a mortgagee, with the equity of A, in the first mortgage, extinguished ; consequently, C, whose right was unimpaired, was entitled to redeem ; 5. that B had no superior equity, by virtue of which he could resist the application of C.

      New-Haven,

    July, 1850
    This was a bill in chancery, to redeem mortgaged premises. On a hearing before the superior court, October term, 1849, the following facts were found.

    On the 2d of September. 1846, George W. Brown and Samuel N. Beecher mortgaged a parcel of land in Meriden, to Rosetta M. Cowles, one of the defendants, to secure the payment of four promissory notes. Beecher, afterwards, released all his interest in the premises to Brown.

    On the 17th of January, 1848, Brown executed a mortgage deed of the premises to James T. Mix Co., the plaintiffs, to secure the payment of a promissory note, of the same date, made by Brown, for 200 dollars, payable to the mortgagees, or order, at the Meriden Bank, four months after date ; but the deed was not delivered to or accepted by them, until the next day. At the time this mortgage deed and this note were executed, there existed no indebtedness whatever from Brown to the mortgagees ; but they were executed by Brown, as a basis of credit to that extent, which the mortgagees then agreed to give, to induce them to open an account with hint, and to extend credit to him for such goods as they should sell him; with the understanding that he should make such payments upon the account, that the balance against him should, at no time, exceed the sum of 200 Dollars. They accordingly opened an account with him, and sold him immediately, goods, amounting to 103 dollars, 63 cents. The account was continued until the 20th of October, 1848, when it was closed ; the balance against him then being 180 dollars, 69 cents ; which sum, with interest, is still due. During this period, Brown made such payments upon the account, that the balance against him, at no time, amounted to 200 dollars.
    The note described in the condition of the mortgage, the plaintiffs procured to be discounted for their own benefit, and at its maturity, was taken up, and is now held, by them.
    At the time the mortgage to J. T. Mix & Co. was execu- ted and delivered to them, the mortgage executed on the 2d of September, 1846, to R. M. Cowles, was outstanding, in full force, and so continued until the 26th of October, 1848 ; when Brown, in consideration of the notes described in the condi- tion, being given up, gave her an absolute deed of the prem- ises, containing the usual covenants, except the warranty against incumbrances. On the 16th of May, 1848, Brown gave the plaintiffs another note for the sum of 200 dollars, payable three months after date, which, at its maturity, was taken up, by the maker, the plaintiffs furnishing their check for 116 dollars, 12 cents, towards it. This note was deliv- ered, by Brown, to Mrs. Cowles, at the time he executed said absolute deed to her, and is now in her hands. The
    plaintiffs had made a full tender to the defendants, to entitle the former to redeem, if, in other respects, they were entitled to do so. Upon
    these facts, the court dismissed the bill, with costs. To obtain a reversal of such decree, the plaintiffs thereupon brought a writ of error before this court. Ingersoll,

    for the plaintiffs, contended,
    con tented1. That although the note and mortgage deed were drawn, and in one sense executed, on the 17th of January, 1848, when no considera- tion passed between the parties; yet these instruments did not receive their vitality, till they were brought to New-Ha- ven, and accepted by J. T. Mix & Co., on the 18th of Janu- ary. “ It is essential to the delivery of a deed, that it should be delivered by the grantor, and accepted by the grantee.” Merrills v. Swift, 18 Conn. R. 261. See also Jackson, d. Ten Eyck v. Richards, 6 Cowen, 617. 617.

      But the finding of the court below is, that the delivery and the acceptance of the deed was on the 18th of January; and that simultaneously with it, or, to use the language of the court, “ immediately thereupon,” i. e. at the same time., the plaintiffs delivered goods to the mortgagor, amounting in value to 103 dollars, 63 cents, being part of the sum specified in the note, and for which, in part, the note and mortgage were given. To this extent, therefore, at least, there was a valid consideration for the mortgage note; and there being no fraud in the transaction, the mortgage would be upheld, even as against creditors and purchasers. Sanford v. Wheeler, 13 Conn. R. 165.
    2. That irrespective of the consideration just referred to, the mortgage to J. T. Mix Co., as between the parties, is valid, to the extent of all the plaintiffs’ advancements upon it, whether made on the 18th of January, or at any subsequent time ; and independently of our registry laws, it could not be questioned, even by subsequent incumbrances or purchasers. The objection to its validity here interposed, is, that the imperfect description of the amount and character of the consideration, in the condition of the mortgage deed, renders it void, under our recording system, as against subsequent in-cumbrancers and purchasers. But the defendant, who interposes this objection, is not a subsequent incumbrancer or purchaser. The mortgage to Mrs. Cowles, the defendant, was prior to the mortgage to the plaintiffs, and is wholly unaffected by it. She has, subsequent to our mortgage, taken a conveyance from the original owner, of his equity of redemption. But that does not make her a purchaser subsequent to us. She has only perfected the right which she acquired under her mortgage, an incumbrance prior to ours. She is in the same situation as she would have been, had she foreclosed her mortgage, by a bill for that purpose, without taking notice of the intervening incumbrance of the plaintiffs. Her right in equity was the payment of her mortgage debt, with interest-nothing more; and the finding of the court below is, that the plaintiffs had made a full tender to her, to entitle them to redeem, if, in other respects, they were entitled to. She advanced no new consideration, when she took the conveyance of her mortgagor’s equity of redemption.
    In the state of New-York, the courts hold, that a purchaser, whom the registry act was intended to protect, is one who has advanced some new consideration. Dickerson v. Til-linghast, 4 Paige, 215. “And although the terms of the statute of that state may vary from ours, the same object is kept in view.” Per Williams, Ch. J. in North v. Belden, 13 Conn. R. 381.

      Kimberly and J. S. Beach, for the defendants,
    contended, 1.That the record must give reasonable notice of the incum-brance on the land mortgaged. Pettibone v. Griswold, 4 Conn. R. 158. Stoughton v. Pasco, 5 Conn. R. 442. Crane, v. Deming, 7 Conn. R. 395. Hubbard v. Savage, 8 Conn. R. 215. Booth v. Barnum, 9 Conn. R. 286. Sanford v. Wheeler, 13 Conn. R. 165. North v. Belden, Id. 378. Hart v. Chalker, 14 Conn. R. 77. Merrills v. Swift, 18 Conn. R. 257.
    2. That no notice is reasonable, unless the record disclose, with as much certainty as the nature of the case will admit of, the real state of the incumbrance on the property. Per Williams, Ch. J. in Hart v. Chalker, 14 Conn. R. 77. Per Slorrs, J. in Merrills v. Swift, 18 Conn. R. 257.
    3. That the record must disclose, with as much certainty as the nature of the case will admit of, not only the extent of the incumbrance, but its true nature and character. Sanford v. Wheeler, 13 Conn. R. 165. North v. Belden, Id. 376. and others above cited.
    4. That the cases in Connecticut, involving the validity of mortgages, may be divided into three classes. 1st, those as in Pettibone v. Griswold, Stoughton v. Pasco, Shephard v. Shephard, Booth v. Barnum, Hart v. Chalker, and Merrills v. Swift, in which it was claimed, that the record did not disclose, with sufficient certainty, the amount of the incum-brance. 2ndly, those as in Crane v. Deming, and Hubbard v. Savage, in which the record disclosed, with sufficient certainty, the amount which was intended, to be secured, but the objections to their validity were, that the debts or liability disclosed, were not the legitimate subjects of a mortgage security. 3dly, those, as in Sanford v. Wheeler, and North v. Belden, in which the record contained a sufficiently certain description of the debt or liability, purporting to be secured, and in which the nature of the debt or liability intended to be secured, was such that it could have been secured, if the record had disclosed, it ; but the objection were, that the rel transaction was not disclosed that the record set up fictitious debt or liability, instead of the existing debt or liability.
    This case falls within the 3d class, and is concluded by the cases of Sanford v. Wheeler, and North v. Belden.

    5. That if it is claimed, that the first charge of 103 dollars, 63 cents, is protected by the mortgage, the answer is-first, the record finds, that at the time the mortgage was given, there existed no indebtedness whatever from Brown to the plaintiffs. Secondly, the account annexed shows that a much larger amount than that sum was paid by Brown on the account ; and such payments the law applies to the items of the account which first accrued. Fairchild & al. v. Holly & al. 10 Conn. R. 175.
    6. That the superior equity in the case, is in favour of the defendants. At the time Mrs. Cowles gave up her notes, and took the deed from Brown, she supposed the plaintiffs’ mortgage was satisfied. First, by the account between the plaintiffs and Brown, the mortgage note appears to have been paid,
       Secondly, Mrs. Mix received from Brown, and now holds, the note of the 16th of May, 1848, which Brown paid and took up.

         In the account referred to, exhibited on the hearing, Brown was credited with the mortgage note, and also with the note of the 16th of May, 1848.

   Cijürch, Ch. J.

On the 2d day of September, 1846, Brown and Beecher mortgaged the land in question to Rosetta M. Cowles, to secure the payment of several notes. On the 17th day of January, 1848, Brown, who then owned the entire equity of redemption, executed to the plaintiffs a mortgage deed of the same land, conditioned to pay a note of two hundred dollars, dated the same day, and made payable to the plaintiffs, or order, at the Meriden Bank, four months after date. If this last was a valid mortgage, the plaintiffs, as second mortgagees, have a right to redeem the first mortgage.

As to the mortgage to the plaintiffs, the facts are, that, although the deed was executed on the day it bears date, it was not delivered to the plaintiffs, nor accepted by them, un-till the next day : then it became effective, as a valid mortgage. Merrills v. Swift, 18 Conn. R. 257. Ten Eyck v. Richards, 6 Cowen, 617.

When the mortgage deed and note were delivered to the plaintiffs, it was upon an arrangement then made, by which, as a consideration of the note and mortgage, the plaintiffs then agreed to deliver to Brown, the mortgagor, goods, to an amount equal to the sum of the note, and to deliver them as Brown should require or call for them; or, as the court, in the finding, has expressed it, that the plaintiffs should receive the note, “ as a basis of credit, to that extent, which credit the plaintiffs agreed to give.” And at the same time, under that arrangement, the plaintiffs delivered to Brown goods to the amount of 103 dollars, 63 cents. All this was but one transaction, and so must be treated.

The note given by Brown, was not conditional; nor was it intended to be given upon any contingency. The contract between the parties was an absolute one. The plaintiffs agreed to furnish goods to the amount of two hundred dollars ; and Brown agreed to pay for them, by his note and mortgage. There is no discrepancy between the substance and form of this transaction. The record speaks the entire truth, in its legal effect, without detailing the circumstances. The distinction between this mortgage, in the feature of it, and the mortgages set forth in the cases of Sanford v. Wheeler, 13 Conn. R. 165. and Belden v. North, Id. 176. is very obvious. In this case, the payees of the note were under an absolute obligation to deliver the goods, as called for, to the full amount of the note. In the cases referred to, they were mere sureties, who might, or might not, be subjected to payment : there was no debt, as the note and -mortgage pretended, but only a contingent liability.

But even the case of Sanford v. Wheeler, furnishes an authority in support of this mortgage, to the extent of 103 dollars, 63 cents. The plaintiffs, at the time of the note and mortgage, actually advanced this amount of goods upon the note ; and so far, the mortgage is good, upon the principle of that case. And this will give to the plaintiffs a right to redeem.

There are other considerations, which favour the plaintiffs’ right to redeem. If this mortgage was in fact voluntary, still it was good between the parties ; and the mortgagee might avail himself of it, by redeeming the prior mortgage of Mrs. Cowles. And if she stands only in the condition of a first mortgagee, she cannot complain. She receives her money, her debt; and this is all she is entitled to.

But she claims to be a purchaser, for a valuable consideration. She was not. Although Brown, after his mortgage to the plaintiffs, released to her all his equity of redemption, she paid nothing for it. As between them, the relation of mortgagee and mortgagor ceased ; and she gave up the notes, upon receiving the land; and this she ought to have done. By this transaction, Mrs. Cowles was placed in the same position. in which she would have been, if she had foreclosed the equity of Brown, without foreclosing the right of the plaintiffs, as second mortgagees. This would have left the plaintiffs with their right of redemption unimpaired

It is said, that in some way, Mrs. Cowles has some peculiar and superior equity, because she made a new arrangement with Brown, supposing the plaintiffs’ mortgage was satisfied. But the plaintiffs had done nothing to induce such a belief. The note secured by and described in their mortgage, was never paid, nor given up to Brown, but was always retained by them.

The plaintiffs’ mortgage remains a lien upon the land, to the amount due from Brown to the plaintiffs, as found by the superior court; of course, they have right to redeem, and their bill should be granted.

The decree of the superior court is reversed.

In this opinion the other Judges concurred.

Decree reversed.