text:
    Raymond and another vs. Sturges.
    In an action on the case, the declaration alleged, that the defendants, having brought a petition to the superior court, for the foreclosure of a mortgage of a certain piece of land, therein described, which had been executed to them, by the plaintiff, to secure a note given by them to him, it was agreed between the plaintiff and the defendants, before the decree was passed thereon, that the time for redeeming the mortgaged property should be limited to the first Monday of January, 1851, but that the defendants procured a decree thereon, that it should be redeemed, previous to said last-mentioned day; viz., on, or before the first day of January, 1851, and, that, after said decree was passed, _ the defendants falsely, and fraudulently, and for the purpose of preventing the plaintiff from redeeming said mortgaged premises within the time so limited for that purpose, represented to the plaintiff, and thereby induced him to believe, that the time so limited was the first Monday of said January; that, under said belief, and under an agreement between the plaintiff and the defendants, made after said first day of January, that the plaintiff might redeem, on the said first Monday of January, the plaintiff omitted to redeem said land, until after said first day of January, but was prepared, and offered to the defendants, to do so, on said first Monday of January, and, on that day, tendered to the defendants the amount due on [said mortgage, which they refused to receive; and that, by means thereof, he was foreclosed from redeeming said premises, and that, in order to have the foreclosure opened, and to obtain the privilege of redeeming, he was obliged to, and did bring his application therefor, to said court, by which said decree was passed, on which he was allowed by said court, to redeem said premises, and that, in consequence of said wrongful conduct of the defendants, he was, in the prosecution of said application, subjected to great expense, trouble, vexation, and loss of time. Held, that such declaration was sufficient, and disclosed a good ground of action against the defendants.
    It is not sufficient to constitute duplicity in a declaration, that it appears, from it, that the plaintiff has more than one good cause of action against the defendant, but it is necessary, that it should further appear, that he relies upon more than one cause of action, as a ground of recovery.
    Therefore, where, in addition to the cause of action on which it appears, from the declaration, that the plaintiff relies, there are other allegations, which show that he has other causes of action against the defendant, but which are introduced only for the purpose of amplifying his description of the cause of action on which he relies, or of aggravating the damages in the case, or of characterizing the motive of the defendant, in committing the wrong complained of, or of setting out the evidence of the facts, constituting the ground of action relied on, such allegations do not render the declaration double.
    Nor does immaterial matter constitute duplicity.

      This was an action on the case, brought to the superior court for the county of Fairfield.
    The declaration alleged, that the plaintiff, on or about the 17th day of June, 1847, gave the defendants a note of hand, of that date, for the payment by him to them of two thousand dollars, on demand, with interest, and on the same day, for security of such payment executed and gave to them a legally executed, attested and acknowledged mortgage deed, of a certain tract of land, lying in the town of Wilton, with buildings therteon, in quantity forty-three acres, more or less; bounded, &e.; that afterward, said note not having been paid, the defendants brought against the plaintiff a petition, dated January 8th, 1850, returnable to said court, at its term on the second Tuesday of February, 1850, for the foreclosure of the plaintiff’s equity of redemption in said tract; which petition was duly served, and returned to said court, and entered in the docket thereof; and, at the same time, the defendants brought against the plaintiff an action of ejectment, for the recovery of the possession of said tract and buildings, and also an action of assumpsit upon said note, for the recovery of the moneys due thereby, the writs in both of which actions were duly served on the plaintiff, and returnable to, and duly returned to, said court, at its said term of February, and were both duly entered in the docket thereof; that, at said February term of said court, the defendants recovered against the plaintiff judgment on said action of ejectment, for $0.25 damages and $13.94 costs, and judgment on said action on said note for $233.88 damages and $13.32 costs, and upon said petition a decree of foreclosure, the date thereof being March 7th, 1850, in and by which decree, it was, by said court, found that there was then due to the defendants, upon and by said note, the sum of $326.66, and was by said court adjudged and ordered, that, unless the plaintiff should, on or before the first day of January, 1851, pay said sums of $326.66, with interest, which should accrue thereon, from the date of said decree until the time of said payment, and also the costs and expense of said petition, by said court taxed at ,$19.94, and said costs in said action of ejectment, then the plaintiff, his heirs, executors and administrators, and each and every of them, and all persons claiming by, from or under him or them, should be forever foreclosed of all right to redeem said mortgaged premises; that before said decree was passed, it was agreed between the plaintiff and defendants, that the time to be fixed for payment, in said decree of foreclosure should be, (if said court should assent thereto,) the first Monday of January, 1851, but said decree was, by mistake, made as aforesaid; that the plaintiff’, always, after said decree was so obtained, believed, that the time fixed by said court for such foreclosure was the first Monday of January, 1851, and not earlier; that he was informed by Lewis Raymond, one of the defendants, that said first Monday was the time so fixed, and also told, by the attorney of the defendants, relative to said petition and the moneys so to be paid as aforesaid, that he believed said first Monday was the time so fixed, and the plaintiff' had otherwise heard and believed that such was the fact; that said Lewis, on or about the 25th day of December, 1850, told the plaintiff-, that the defendants would not exact of him specie, in payment of the sum due to them in the premises, but would receive, in such payment, good bills of any bank in this state; and that, on said 7th day of March, when said decree was made, he paid to the defendants, to be applied upon the sum or sums then due from him to them in the premises, the sum of five hundred dollars, and long before the first day of January, viz., on the second day of April, 1850, two hundred dollars more, to be applied, in like manner, upon the sum or sums then due from him to them in the premises, which said sums were received .by the defendants, to be applied accordingly; that, in the early part of said January, and before the first Monday thereof, it was arranged and agreed between the plaintiff and said attorney of the defendants, that the plaintiff should, on said first Monday, pay, at the office of said attorney, in Norwalk, in said county, the moneys so to be paid, to prevent such foreclosure, to which arrangement and agreement said Lewis, before said first Monday, assented and agreed with the plaintiff; that the plaintiff, confiding in said arrangement and agreement, and still believing said first Monday to be the day so fixed, procured money sufficient for making such payment as aforesaid, viz., $1,800, in good bills of the Fairfield County Bank, so called, being a legally incorporated bank, located in Norwalk in this state, and immediately on that day called on said attorney, at his said office, to make payment as aforesaid, being then and there ready and willing to make such payment, but was then and there informed by said attorney, that said Lewis then had the papers pertaining to said business in his hands, and was then engaged in said Wilton, and that the plaintiff must call on said Lewis, at said Wilton, and there do the requisite business, in making such payment as aforesaid; that the plaintiff, immediately thereafter, and on said first Monday, went to said Wilton and then offered and tendered to said Lewis, payment, in said bills, of the whole amount then remaining due from him to the defendants in the premises, including all the costs aforesaid, and all the sums for which judgment had been so recovered as aforesaid, but said Lewis then and there wrongfully, fraudulently, and contrary to his agreement aforesaid, utterly refused to receive and did not receive the same, nor any part thereof, assigning as a reason for such refusal, that he would receive nothing but specie in such payment, and also, that the time so fixed by said court had already elapsed, which was the first intelligence the plaintiff had received, that said first Monday was not the day so fixed, and he thereupon immediately procured money, in lawful specie, to an amount more than sufficient to make payment to the defendants, of any and all sums then in any way or manner due from him to them in the premises, according to the facts before set forth, viz., to the amount of $1,765, and on the said first Monday, at said Wilton, made search for said Lewis, that he might make full payment to him in the premises, but could not find him, and then and there tendered to Jesse Raymond, one of the defendants, in said specie, payment of all the sums so as aforesaid in any way due from him to the defendants; that said Jesse then and there wrongfully and fraudulently refused to receive, and would not and did not receive, the same or any part thereof, and the plaintiff was by reason of the premises, unable to do anything more or other than he did, for the making of such payment for the prevention of such foreclosure, and in manner aforesaid the day, in fact so fixed for foreclosure of his said equity of redemption, elapsed and passed by, without payment other than as aforesaid; that immediately thereafter the defendants, by force of an execution by them obtained against the plaintiff', upon said judgment so recovered by them in said action of ejectment, viz., by the levy thereof by a proper officer, had the plaintiff turned out of the possession of his said tract and buildings, and themselves put into possession thereof, and remained in possession thereof, taking the proceeds and profits to themselves, and afterwards caused said execution to be levied, for satisfaction of said damages and costs, for which they so recovered judgment, in said action of ejectment, upon the personal property of the plaintiff, viz., great quantities of unthreshed rye, oats, hay and straw, intending to have said personal property sold, according to law, in satisfaction of said execution ; that the plaintiff was, at all times after said decree was so obtained, until and on said first day of January, and until and on said first Monday of January, able, willing, and intending to pay the defendants all moneys, so due as aforesaid to them in the premises, by reason of the facts before set forth, and thus to prevent such foreclosure, and could and would have made such payment for that purpose, on or before said first day of January, but for having been so informed and so believing as aforesaid, that the time so fixed was the said first Monday as aforesaid, and for having been so by said Lewis deceived, as aforesaid, in relation thereto; that said tract and buildings were worth $1,300 more than the whole amount, in any way so then due to the defendants in the premises from the plaintiff, and well worth $3,000; that all that the defendants, or either of them, said or did as aforesaid, and all that they, or either of them, refused to do as aforesaid, was said, done, and refused to be done as aforesaid, by them wrongfully, fraudulently, corruptly and wickedly, with the wrongful, fraudulent, corrupt and wicked design to prevent the plaintiff’s redemption of said tract and buildings in the premises, and thereby obtain, by force of said decree, an absolute title to said tract and buildings, and thus, while they would benefit themselves to the whole amount of the value of said mortgaged property over and above the whole amount due to them in the premises, viz., to the amount of $1,300 and more, defraud and injure the plaintiff to the same amount, by depriving him of his said equity of redemption in manner aforesaid.
    That when the defendants were so put into possession, the plaintiff had, in said buildings and upon said tract, large quantities of unthreshed grain, of straw, hay and other personal property, which the defendants, under color of said execution and the levy thereof, and of having the plaintiff so put out of possession as aforesaid, wrongfully, maliciously, and with the unlawful intent to defraud and injure the plaintiff’, caused to be removed from said buildings and tract, and without notice to the plaintiff’, thrown out in the public highway, and in other places not in possession of the plaintiff’, viz., one thousand sheaves of unthreshed grain, worth a large sum, viz., $100; thirty tons of hay, worth a large sum, viz., $300; seventy loads of straw, worth $100, and other personal property, all which, by reason thereof, were greatly damaged, and rendered óf no value to the plaintiff; that the personal property, so taken by the levy of said execution, consisted of a hay-rake, worth a large sum, viz., $15; a large quantity of oat chaff, worth $10; one ton of oat straw, worth $7.50; a stack of hay, worth $20; a stack of corn-stalks, worth $10; and a large quantity, viz., six tons of hay, worth a large sum, viz., $60; all of which said personal property the defendants did afterwards, maliciously, wickedly, and with the evil malicious intent to aggrieve and injure the plaintiff in that behalf, and in abuse and perversion of said levy of execution, and of the process of said court, procure to be, at said "Wilton, on or about the 20th day of February, 1851, sold under and in virtue of said execution, and. in pursuance of the said levy thereof, as aforesaid; all which said property was so sold at great sacrifice, viz., at prices greatly less than the value thereof, in all amounting to $1,350, and being then and there less by a large sum, viz., $91, than the just value thereof; that the defendants did procure and cause the plaintiff to be put out of possession of said tract and buildings, under and-by virtue of said execution as aforesaid, maliciously, wickedly, fraudulently, and with the evil malicious intent to defraud, injure and aggrieve him in that behalf, and in perversion and abuse of said writ of execution and the process of said court, and that, having so procured and caused him to be so put out of possession and themselves as aforesaid to be put into possession as aforesaid, they did thenceforth fraudulently, maliciously, wickedly and with evil intent aforesaid, and in like perversion and abuse of said writ of execution, themselves remain in possession and keep and hold him, the plaintiff, out of possession thereof, for a long space of time, viz., until on or about thefirst day of April, 1851, and that by reason thereof, he lost, during the whole of that time, the use and benefit of said tract and buildings, and was compelled to keep and fodder his cattle, in other places, which he otherwise would have kept and foddered on said premises; that the defendants did so cause and procure his said personal property to be taken on execution as aforesaid, fraudulently, maliciously, and with the evil malicious intent to injure the plaintiff, and in perversion and abuse of said writ of execution and of the process of said court, and by reason of the facts before averred, he was deprived of hay, straw and provender, for the feeding of his said cattle, was disturbed in his arrangement of his business, subjected to great trouble and expense and otherwise greatly embarrassed, hindered and injured. That, in all the doings and conduct of the defendants above set forth, and in all they or either of them did or said as aforesaid, to do as above set forth, they did wickedly and maliciously combine together, and were then combined with the evil and malicious intent to defraud, aggrieve, and injure the plaintiff in manner aforesaid, and that each of the defendants had, at all times, during all the time aforesaid, full knowledge of each and all the facts before alleged; that, after he was put out of possession as aforesaid, and after the defendants had as aforesaid caused his said personal property to be removed, and said personal property so to be taken on execution, he, at said Wilton, on or about the 10th day of January, 1851, demanded of the defendants the restoration of said tract and buildings and said personal property to him; which the defendants then and there fraudulently, wickedly, maliciously, and with the intent aforesaid refused to restore to him, and in like manner refused to return any part of said personal property or said tract and buildings, and by reason of the premises, the plaintiff, in order to recover again the possession of said tract and buildings, and to compel the defendants to reconvey the same to him, as he was justly entitled to have them reconveyed, was under the necessity of applying, and by the said wrongful conduct of the defendants compelled to apply, and did, on or about the 18th day of January, 1851, apply to the said superior court by petition, by him brought against the defendants, dated the 15th day of January, 1851, and made returnable to said court, at its term on the second Tuesday of February, A. D. 1851, and did, by the consideration of said court, at its said term, obtain against the defendants a decree, by force of which he was afterwards, on or about said first day of April, restored to the possession of said tract and buildings, and to his just title thereto, on satisfaction made to the defendants pursuant to said decree, of all moneys due from him to them, which satisfaction he had long before offered and endeavored in vain to make to the defendants in manner as aforesaid; which said application of his to said superior court and the said proceedings thereon are more fully shewn by the files and records of said court therein remaining ; that, by reason of the wrongful conduct of the defendants above set forth, he was compelled to make and' prosecute his application to said court, for the purpose of obtaining possession of said tract and buildings, and his just rights in relation thereto, and in doing the same was necessarily and unavoidably subjected to great trouble, loss of time, and vexation, and to great expense, amounting to $250 ; but that, although he had, in manner aforesaid, obtained possession of said tract and buildings, and his just title to the same, he had never, in any way, obtained any remuneration or satisfaction whatsoever, for the sacrifice of his said personal property; for the removal, damage to, and loss of his said other personal property, as aforesaid, nor for the so being put and kept out of possession of the said tract and buildings, and other property, nor for any of the damage incident thereto and arising therefrom, nor for his said trouble, loss of time, vexation and expense in so bringing and prosecuting his said petition, &c.
    To this declaration, the defendants demurred specially, assigning, as cause of demurrer, 1. That said declaration contains no cause of action at law; 2. That it was double, and if it contained any cause, embraced several distinct causes of action.
    This demurrer was overruled, and judgment accordingly rendered for the plaintiff. The defendants thereupon, by motion in error, brought the record before this court for revision.

      Dutton and Ferry, in support of the motion, claimed,
    1. That the declaration was bad, for duplicity. The action being on the case, for the abuse of process, in the levy of an execution in ejectment, the proceedings in ejectment, alone, constitute no ground of action. Phelps v. Sage, 2 Day, 151. Smith v. Vincent, 15 Conn. R., 1. Parsons v. Wells, 17 Mass. R., 419.
    The declaration therefore proceeds to set out the fraud and misrepresentation of the defendants, regarding a decree of foreclosure, and the consequent damage, which renders it bad. There being but one count, this constitutes duplicity.

      2. That the plaintiff has had his remedy in chancery. 1 Sto. Eq. Jur., § 64, R. 65, 66, 68, 73.

      Butler and Carter, contra, contended,
    1. That the declaration contains a cause of action at law.
    The facts, alleged, and admitted by the demurrer, shew a combination to deceive; to injure the plaintiff, by deceiving him in relation to the law day; .and thereby, and in connection therewith, work a pecuniary and malicious injury to the plaintiff, which object was effected.
    A court of equity could only open the decree, and allow the plaintiff to redeem. It could not grant him redress for the injuries consequent upon the fraud, by giving damages.
    For actual damages, other than loss of title, case was the only .remedy. Ludington v. Peck, 2 Conn. R., 700. 1 Chitt. Pl., 133.
    2. The declaration is not double. It shows a fraudulent combination, and conspiracy; the object contemplated; the mode and means, by which they were to be, and were effected; and the actual damage suffered.
   Storrs, J.

The first question in this case is, whether the declaration sets out a good cause of action.

It states, that the defendants, having brought a petition to the superior court for the foreclosure of a mortgage of a certain piece of land, therein described, which had been executed to them by the plaintiff, to secure a note given by them to him, it was agreed between the plaintiff and the defendants, before the decree was passed thereon, that the time for redeeming the mortgaged property should be limited to the first Monday of January, 1851, but that the defendants procured a decree thereon, that it should be redeemed previous to said last mentioned day, viz., on or before the first day of January, 1851, and that, after said decree was passed, the defendants falsely and fraudulently, and for the purpose of preventing the plaintiff from redeeming said mortgaged premises within the time so limited for that purpose, represented to the plaintiffs, and thereby induced them to believe, that the time so limited was the first Monday of said January: that, under said belief, and under an agreement between the plaintiff and defendants, made after the first day of said January, that the plaintiff might redeem on the said first Monday of January, the plaintiff omitted to redeem said land, until after said first day of January, but was prepared and offered to the defendants, to do so, on the said first Mond'ay of January, and on that day tendered to the defendants the amount due on said mortgage, which they refused to receive, and that, by means thereof, he was foreclosed from redeeming said premises, and that, in order to have the foreclosure opened, and to obtain the privilege of redeeming, he was obliged to and did bring his application therefor, to said court, by which said decree was passed, on which he was allowed by said court to redeem said premises, and that, in consequence of said wrongful conduct of the defendants, he was, in the prosecution of said application, subjected to great expense, trouble, vexation and loss of time. No other facts are stated in the declaration, which qualify or detract from the full force and effect of these allegations. That these facts disclose a legal cause of action, there can be no doubt. They present a sheer case of fraud practiced by the defendants, on the plaintiff, by means of false representations, in consequence of which the latter was prevented from availing himself of his right to redeem his property, and was therefore put to great trouble and expense, in his application for relief against the effect of such fraud, beyond his taxable costs on said application. For such trouble and expense the plaintiff can obtain no redress, unless in an action like the present, since it was not competent to the court to which that application was brought, to decree damages to him therefor. Jurisdiction for the recovery of such damages appertained, not to that court, but to a court of law. They constituted a legal, as contradistinguished from an equitable, claim, and are recoverable at law, in an action on the case, as in ordinary cases of damage sustained by one person in consequence of a fraud practiced on him by another. The declaration, therefore, shows a good cause of action.

The remaining question is, whether it is bad for duplicity. The particulars in which it is stated, in the special demurrer, to be double, and which only we can consider on a demurrer for this cause, are, that it sets up, 1. That the defendants enforced the execution issued on their judgment in the ejectment suit mentioned in it; 2. That they sold the personal property of the plaintiff, on said execution; 3. That they violated their promises to the plaintiff; and 4. That they deceived and defrauded the plaintiff. That the declaration states a good cause of action, on the last mentioned ground, has been shewn. Whether any other is sufficiently set forth in the count, so that a judgment on it would be sustained on a writ of error, is very questionable. Perhaps, however, under the rules respecting duplicity, if the plaintiff has sought to recover for any other cause of action in that count, it would be no answer to that objection, that it is so imperfectly set forth, that, if it constituted a distinct count, it would be demurrable. But we have not considered it necessary to examine these questions, because we are of opinion, that if any other cause of action is so stated in this count, that it would not be exceptionable either in substance or form, if contained in a distinct count, there is none so introduced into this declaration as to render it liable to the objection of duplicity. In order to constitute duplicity, it is not sufficient that a count, in a declaration, shews merely that the plaintiff has various causes of action against the defendant, although the contrary might be inferred from the general and loose definitions of duplicity, in some of the elementary treatises on pleading. It is necessary, further, that those various causes of action, or more than one of them, should be claimed and relied on, as distinct grounds of recovery. Dyer, 42, b. Stephen on Pl., 302. For, if it appears, that the plaintiff seeks to recover upon only one of them, and makes no claim on any of the others, as a distinct, additional, or independent ground of recovery, the mere circumstance that he has other valid claims against the defendant, which he might, but does not, seek to enforce in the suit, ought not to deprive him of a recovery on the cause of action, on which alone he seeks to recover. And, in such a case, there can be no multiplicity of issues, to avoid which duplicity is discountenanced.

Nor is the introduction of facts in a count which would constitute a distinct cause of action, considered as duplicity, whev.e such facts are stated, not as a ground of recovery upon them, taken by themselves, but only as constituting part of the entire facts, or cause of action, on which the plaintiff relies for a recovery. . Accordingly, in Bac. Ab. K., 2, duplicity is laid down to be, “ Where distinct matters, not being part of one entire defence,” or, it might be added, ground of recovery, “ are attempted to be putin issue.” The defendant cannot distort, or vary the claim, which the plaintiff has chosen to make, whatever it is, in order to raise an objection to it. Nor does the statement of immaterial matter, in a declaration, make it double. Steph. Pl., 301. It is very common for the plaintiff, especially in actions ex delicto, in connection with the facts on which he claims to recover, to state matters, from which it appears that he has another cause of action against the defendant, either by way of amplifying, or strengthening his description of the cause of action on which he relies ; or, perhaps, from a mistaken idea that it is necessary to state, not only the main facts constituting his claim, but also the evidence of those facts and their attending circumstances ; or to shew the extent and aggravated character of the injury of which he complains; but the statement of these matters being unnecessary and immaterial, it has never been considered that they rendered the declaration double, where it was apparent that he did not rest his claim to recover, upon them.

On an examination of the declaration in this case, we are satisfied that the claim of the plaintiff ought to be considered as founded on the fraud and deceit, practiced on him by the defendants, in regard to the time limited for the redemption of the premises mortgaged by the plaintiff, and that, the statement of the other matters, which are claimed by the defendants, as setting up other causes of action, was made, not with a view of introducing any new or. distinct ground of recovery, but only for the other purposes which we have mentioned. The conduct of the defendants, under their execution, in dispossessing the plaintiff of his land, and levying on his personal property, and the violation by the defendants, of their promises, are evidently not introduced as distinct and independent causes of action, but for the purpose of shewing the original fraudulent scheme of the defendants, the manner in which they carried it into effect, and the extent, and character of the injury inflicted on the plaintiff. The objection of duplicity is therefore unfounded, and there is no error in the judgment complained of.

In this opinion the other judges concurred, except Hinman, J., who was disqualified.

Judgment affirmed.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    New Canaan vs. Hoyt.
    While the third section of the Revised Statutes, relating to the assessment of taxes, (Rev. Stat., Tit. 55, c. 1, § 3,) was in force, the plaintiff returned to the assessors a list, containing a correct description and valuation of his real estate, but which did not specify the different kinds of his personal property, as said act required. Held; that it was the duty of the assessors to receive the same as a valid list of the plaintiff’s real estate, and defective only as to the personalty.
    While the act of 1850 was in force, which required every person liable to pay taxes, before giving his list to the assessors, to make oath to the same, before a justice of the peace, or one of the assessors,—the plaintiff returned such defective list, having, in fact, made oath to the same, and the magistrate, before whom such oath purported to have been taken, appended thereto the following certificate: et The foregoing is duly attested to before me.” No objection to the sufficiency of such certificate was made by the assessors, when presented, but they rejected such entire list for want of sufficient particularity, and assessed all the plaintiff’s property at three times its value, and collected of him the amount of such assessment. In an action against such assessors, brought to recover the amount so collected, it was held, that the defendants could not object to the admission of such list in evidence, on the ground that it did not show that the oath, by law required, had been administered to the plaintiff. 2. That parol evidence was admissible, to show that the plaintiff’s omission to specify his personal property, was not with any fraudulent design.
    Where, in such action, the court instructed the jury, that the list, so returned by the plaintiff, was sufficiently particular, under the act of 1850, and a verdict was returned in favor of the plaintiff, and judgment rendered thereon, on a motion in error in which the only claim made by the defendants was,* ’ that the whole list was void; it was held, that such instruction, as applicable to the defendants’ claim, was not a sufficient ground for a reversal of the judgment.
    This was an action of assumpsit, tried before the jury, in the county court, for the county of Fairfield, at the December term, 1853.
    On the trial, the plaintiff claimed to ' recover the amount of certain taxes, collected on a list, made out against him, by the assessors of the town, in the year 1850, wherein all'his property had been put into his list, at threefold the assessed value thereof. His real estate was valued by the assessors at about $1,000, and his personal property at nearly $1,000, and for both he was assessed at threefold their value.
    To shew that the list, so made out against him, was illegal, he offered in evidence the following list, accompanied, with parol evidence that he had made oath to the same, as required by the statute.

      “ A list of the estate of Chauncey B. Hoyt, Oct. 1, 1850.
    2 dwelling houses and 2 lots, .... $800
    55 acres of land,......1,200
    Personal property, ...... 551
    $2,551
    Deduct 300
    $2,251

      “ The foregoing is duly attested to,
    Before me, Watts Comstock, justice of peace.”
    It was admitted, that the plaintiff’s real estate was correctly described and valued in his list. This list was handed to the assessors, who did not object to it, on the ground that it had not been sworn to, or that the certificate of the magistrate was defective, but refused to receive it, because it did not specify the articles of personal property, and the assessors afterwards made out the list complained of.
    The defendants objected-to the admission of the list, and parol evidence offered by the plaintiff, on the ground, that the certificate did not shew that the oath, required by law, had been' administered to the plaintiff. But the objection was overruled.
    In connection with the list, and in answer to a claim of the defendants, that the plaintiff had so handed in his list to defraud the town, and avoid paying bis just proportion of taxes, the plaintiff offered evidence to shew, that having learned that sworn lists would be required, he called upon justice Comstock, and requested him to make out a list for him, and administer to him the required oath; that he named the items of his. personal property, which Comstock took down and carried out their value; but informed the plaintiff that, as he viewed the new law, it was not necessary to insert in the list, the items, but only the aggregate amount, and, accordingly, inserted only that amount in the list. To the admission of this evidence the defendants objected, but the court admitted it.
    The defendants claimed that, although the list made out by the plaintiff, contained a correct description and valuation of his real estate, yet it was not a list of all his taxable property, and was, therefore, wholly void, as a list; that the certificate of the magistrate thereon, was not made in conformity with the statute, arid that the assessors were bound by their oaths to reject the same, and fill up a list for the plaintiff, at threefold the raté, at which the property would otherwise have been assessed, and prayed the court so to instruct the jury.
    The court did not so instruct them, but informed them, that the list was sufficiently particular as to the plaintiff’s estate, under the law of 1850.
    The plaintiff having obtained a verdict, the defendants filed a bill of exceptions, and brought the case, by motion in error, before the superior court, where it was reserved for the advice of this court.

      Dutton, for the plaintiff in error, contended,
    1. That the assessors were bound to reject the paper offered as a list, by the plaintiff, because it did not specify the personal property.
    2. That they had no right to receive the list, which was ottered by the plaintiff, because the law of 1850 expressly required, that it should be sworn to. The certificate was imperfect, and the intended list gave no description of the personal property. And all acts, as well as contracts, which are in violation of a statute, are void. 1 Sw. Dig., 218. The object of the statute, in requiring a list, is to give information of the particular articles of property. If any portion of the list is not according to the statute, the assessors have a right to require it to be in such form, and if not so made, to reject it. Sec. 4th, Rev. Stat., p. 602, authorizes the assessors to make out a new list, and to threefold, unless the owner puts in a complete list of his property.
    3. That the judge erred, in admitting the evidence to help out the list. Both the list and certificate must be complete of themselves. A certificate of an acknowledgment of a deed cannot be helped out by parol.
    4. That the charge of the court, regarding the want of specification of personal property, was clearly erroneous. There is no distinction in this respect, between the former law, and the law of 1850.

      Butler, for the defendants in error, contended,
    1. That the list confessedly contained a correct description of the plaintiff’s real estate, so that the assessors could not throw it aside, make out a new list, and threefold the whole. If imperfect as to personal estate, the assessors could do no more than threefold any intentional omissions. Unless the assessors could treat it as wholly void, they could not throw it aside. If the 35th section of the act of 1849, is regarded as of any importance, or the rule that all parts of a statute shall stand together, is recognized, it was a list.
    2. The import of the certificate (of the plaintiff,) although in common language, is perfectly plain; it was “duly attested to;” i. e., duly sworn to, and the statute required no more. No objection was made by the assessors, on that ground, at the time the list was handed in. The administration of the oath had been proved, as a fact, independent of the certificate, and the fact was not in issue.
    3. The court did not go beyond the issue, in allowing the list of personal property to be sufficient under the statute of 1850; for that statute, placing all property at the same rate per cent., made particularity unnecessary.
    The question for the court was, whether the list was wholly void, because it did not specify the items of personal property, the defendants claiming to recover only on the ground that it was so. The court decided the issue, in the precise terms in which it was made, adding an opinion, as to the construction of the law of 1850. If the judge was wrong in this, he was right as to the issue,. and clearly so, as to the genuineness of the list, which was not so affected, by an imperfect entry of the personal property, as to be rendered wholly void, since the real estate, necessarily included in the term “ estate,” was allowed to have been properly specified, and thus the list was rendered “ sufficiently particular as to the plaintiff’s estate, under the law of 1850.”
   Waite, C. J.

The decision of this case depends, mainly, upon the construction to be given to two statutes, relating to the subject of taxation ; one contained in the revision of 1849, and the other enacted in 1850, under which the list of the plaintiff was made, both of which, have been superseded or repealed, by the act of 1851.

By the former statute, it was made the duty of every person, liable to pay taxes, to present to the assessors, on or before the twentieth of October, a list of all his taxable property, specifying the different kinds, and the value thereof. Upon his failure to do so, they were authorized to fill out a list for him, at threefold the rate per cent, that his property would otherwise have been assessed. Upon receiving a list, the assessors were to obtain such information, by viewing the property or otherwise, as might be necessary to amend, add to, ox fill up, the list. And if any person omitted, in his list, any taxable property, or underrated the quantity or kind, with intent to avoid the payment of a due proportion of taxes, they were authorized to add such property to his list, at threéfold the amount that it would otherwise be rated. Statutes, Title Taxes, Sec. 3, 4, 35.

By the act of 1850, every person liable to pay taxes, before giving his list to the assessors, was required to make oath before a justice of the peace, or one of the assessors, that the same was a true and full disclosure of all his taxable property, and that he had not secreted, or temporarily disposed of any of his property, for the purpose of evading the laws relating to taxation.

Two objections have been made to the list, which the plaintiff presented to the assessors. In the first place, it did not specify the different kinds of the plaintiff's personal property; and in the second place, it is said that the certificate of the magistrate did not sufficiently shew that the plaintiff had made oath to the list, in the manner required by the statute.

It is admitted by the- defendants, that the list contained a correct description and valuation of the plaintiff’s real estate, and, at the same time, it is equally clear, that it did not specify the different kinds of his personal property, in the manner the law required. Under these circumstances, were the assessors justified in treating the whole list as void, and assessing all his property at three times the amount, at which it would otherwise have been assessed; or ought they to have received it, as a valid list of his real estate, and defective only as it regarded the personalty 1

In our opinion, it was their duty to have taken the latter course. It would be a harsh construction of the statute to hold every list void, that did not contain a proper description of every item of property. To allow the assessors, in such a case, to impose the threefold penalty upon all the property of the person giving the list, would be conferring upon them power, beyond what we think the legislature ever intended.

In the present case, it is admitted that the list contained a correct description of more than two-thirds of the plaintiff’s taxable property, and so far, the list should have been treated as valid. And as to the residue of the property, the statute authorized and empowered them to amend, add to, and fill up the list, and if they found that a correct description of the property had been omitted with a fraudulent design, they might add the property so omitted, at threefold the value at which it would otherwise be assessed.

The statute evidently proceeds upon the ground, that there might be errors and incorrect statements, in a list, which the assessors might correct, and for which they might even punish the offender, if they' were made with a fraudulent intent. But the extent of the punishment is limited to threefold the value of the property omitted, and not, as in the present case, to threefold the value of all the offender’s property.

In the next place, it is claimed that the certificate of the magistrate, was insufficient. ‘ But the statute did not require that any such certificate should be-made; it required the oath to be taken, but did not prescribe the manner in which the fact should be proved to the assessors.

There is no doubt that they were entitled to reasonable evidence of that fact, before they were bound to receive the list. If the oath was administered by one of their number, or by a justice of the peace in their presence, they might receive the list without any formal certificate.

In the present case, we are inclined to think that the certificate of the magistrate was sufficient. He has certified on the list, that it was “ duly attested to, before him,” implying that the proper oath had been duly administered by him, which unquestionably was the intention of the magistrate, and was so understood by the assessors, when the list was handed to them.

But however this may be, we think this objection ought not to prevail for another reason. When the list was presented to the assessors, they made no objection to it, on the ground of any insufficiency in' the certificate. A very different reason was assigned for not receiving it. If they were dissatisfied with, the certificate, they should so have said to the plaintiff, that he might have produced to them one more satisfactory, which; it seems, he could have done, as he in fact had made oath to it, in due form. Hé had a right to infer from their silence that there was no objection to the certificate.

Tt is further said that the county court erred, in admitting evidence to shew that the omission of a specification of the personal property was not with any fraudulent design on the part of the plaintiff. But it must be borne in mind, that this evidence was offered in answer to the defendant’s claim, that it was done with such design.

Precisely in what manner that claim was made, does not distinctly appear. Had the defendants claimed that the intent of the plaintiff, in omitting the specification, was a matter within the jurisdiction of the assessors, and that their decision upon the subject was conclusive upon the plaintiff, in the same manner as their decision respecting the value of his property, we are not prepared to say that such claim would be well founded, and that all further enquiry would be irrelevant.

But, on the other hand, if the defendants presented the claim as one of fact for the jury to determine, we see not why it was not competent to the plaintiff to meet it, by shewing that there was no such design, as they claimed. And we think enough is not shewn in the bill of exceptions, to authorize us to say that such was not the case.

Finally, it is said, that the court erred in saying to the jury that the list was sufficiently particular, as to the plaintiff’s estate, under the act of 1850. This part of the case is not free from difficulty. If, by that instruction, we are to understand the court as saying, that the list was sufficiently particular as regards the personal property, as well as the real, it was clearly wrong, as we all agree that it was defective in that respect.

But if we are to consider the charge, as applicable only to the point of law made by the defendants, that the whole list was void, for the want of sufficient particularity, then there is no ground for a reversal of the judgment.

It is to be remembered that this case does not come before us, upon a motion for a new trial, where we may be at liberty to look at the whole case, and see whether justice has been done upon the trial, but it comes here upon a bill of exceptions, where we are confined strictly to legal questions. Now, we have repeatedly bolden, that it is not the office of a bill of exceptions, to bring up the whole case for examination, but some point of law, made and decided against the party complaining. Shelton v. Hoadly, 15 Conn. R., 537.

The question raised by the defendants in the county court, and the only one, relating to the validity of the list, was that it was wholly void, for want of sufficient particularity, and a proper certificate of the magistrate; and they asked the court so to instruct the jury, which the court refused to do, and so far we are all satisfied that the court did right.

But the record does not shew that the defendants ever claimed that the assessors were justified in assessing the personal property in the manner they did, if they erred as to the real estate, or that the plaintiff ever denied that they were so justified, or, in short, that any such question was raised in the county court. Consequently, there was no point of law raised, to which the charge of the court was strictly applicable.

A majority of the court are therefore of opinion, that the bill of exceptions does not shew enough, to authorize us to say that there is error in the proceedings of the county court, and we so advise the superior court.

In this opinion the other judges concurred, except Chukch, late C. J., whose death occurred before the cause was decided.

Judgment affirmed.


author: Hinman, J.

text:
    Jones vs. Hoyt.
    In a bill of lading of lumber, which was to be transported, by a shipmaster, from B to S, a stipulation was inserted, that such lumber should be measured on the deck of the vessel, at S, and freight settled according to that measurement. The consignee at S, having died, prior to the arrival of the con- ■ signment, and no agent of the owner appearing to assist in the measurement, a portion of the lumber, before any part of it had been measured, was removed from the vessel, properly piled and measured on the wharf, all which was done in a reasonable manner. Held, that, notwithstanding such stipulation, the plaintiff was entitled to freight upon the whole of said lumber. c
    Where such lumber was sold by the plaintiff, at a public auction, in pursuance of a provision in said bill of lading, at which the plaintiff purchased the same, through the agency of a third person, it was held, that such pretended sale was void, and that the plaintiff continued to hold said lumber, as the property of the defendant.
    Therefore, where the plaintiff subsequently sold said lumber, at a great advance on the price of such pretended purchase, it ,was held, that he was bound to account to the owner, for the same, at such advanced price.
    This was an action on the case, tried before the jury, on the general issue, at the term of the superior court for the county of Fairfield, holden in October, 1853.
    The plaintiff’s declaration alleged substantially, that, on the 7th day of January, 1850, the defendant contracted with the plaintiff-, as master of the bark called the Z. Ring, to transport a certain quantity of lumber from the city of New York, to the city of San Francisco, in California, upon the terms specified in a bill of lading of that date, of the form following, to wit: “ Shipped, in good order and condition, by James H. Hoyt, on board the bark, called the Z. Ring, whereof Townsend Jones is master, now lying at the port of New York, and bound for San Francisco, to say:
    2,074 pieces of dressed pine boards,
    697 do. rough do. do.
    350 do. hemlock timber,
    500 do. do. do.
    being marked and numbered as in the margin, and are to be delivered, in the like order and condition, at the port of San Francisco, the danger of the seas only excepted, unto Aaron Dean or his assigns, he or they paying freight for the same, at the rate of fifty-eight dollars per M. feet, eighty-three and one-third cubic feet being taken for a thousand, with primage and average accustomed. In witness whereof, &c.'
    “ Dated at New York, the 7th day of January, 1850, T. J.”
    That, across the face of said bill of lading, and constituting a part thereof, were written the words, “ The lumber to be piled and measured on the deck of the vessel, and freight settled according to that measurement; the expense of the same to be paid equally by the vessel and the consignee,” and upon the margin of which bill of lading, and constituting a part of the same, were the words following, to wit: “ Bark to have the privilege of one or more ports for refreshments, number of pieces unknown, all on board to be delivered. Freight payable in specie, or its equivalent, before delivery of the goods, and to be received by the consignee, within reach of the vessel’s tackle, when the vessel is ready to deliver them, and if not taken within ten days after arrival of the vessel, the master to be at liberty to land the same at the expense and risk of the goods, and to sell sufficient to pay all charges; not accountable for splits or breakage.”
    That, to induce the plaintiff’ to undertake said voyage, and to convey said-lumber from New York to San Francisco, the defendant wrote upon the back of said bill of lading, before it was to take effect, the words following, to wit: “ I guarantee the payment of the within named freight,” and subscribed the same with his own hand; and thereby, in consideration of the obligations and liabilities assumed by the plaintiff, according to the provisions of the said bill of lading, on said 7th day of January, 1850, assumed and faithfully promised the plaintiff, that if he would, in a reasonable time, proceed with said lumber from said port of New York to said San Francisco, and dispose of the same in the manner specified in said bill of lading, including the part contained on the face and the margin thereof, that he should receive of said consignee, or from the avails of the sale of said lumber, if not taken by said consignee in the manner specified in said bill of lading, the full amount of the freight that would be due to said plaintiff, according to the terms of said bill of lading, and that the defendant would pay to the plaintiff, when thereto requested, the amount of said freight, or so much thereof as should remain unsatisfied.
    The declaration then alleged, that, on the arrival of the vessel at San Francisco, said consignee was dead, and the plaintiff was notified, by the defendant, that one William Lockwood was authorized to receive said lumber, to assist in the measurement thereof, and pay the freight which should be then ascertained to be due to the plaintiff; but that said Lockwood utterly refused so to do: nor did any other person appear to receive the same for the defendant. Whereupon the plaintiff caused a protest to be made by a notary public, at said San Francisco, against said Hoyt, Lockwood, and all others whom it might concern, for costs and damages, which should accrue by reason of the premises. That he caused said lumber to be measured according to said bill of lading, and ascertained thereby that the quantity was fifty thousand feet, the freight of which was, including primage, §3,045, pursuant to said bill of lading. That he waited, until more than ten days had elapsed after he had called on the said Lockwood, when he caused said lumber to be sold at public auction, and that the amount of said sales, deducting necessary charges and expenses, was only the sum of §1,700; of all which the defendant, on or about the 25th day of December, 1850, had notice, &c.
    On the trial, it was admitted that the plaintiff transported said lumber to San Francisco, as alleged in the declaration. Before his arrival there, the consignee died, and said Lockwood did not receive said lumber, nor did any one else appear to receive said lumber or pay the freight, although the plaintiff took all reasonable measures to find some person, who had right and authority to receive the same, and thereupon the plaintiff caused protest to be made, as alleged in the declaration. The plaintiff caused a portion of said lumber to be placed upon the dock, or wharf near which said vessel lay, and the remainder was stowed on said vessel; said lumber was measured, while a part of it lay on said wharf, and a part on the deck of said vessel, and the whole was not measured before.
    The plaintiff offered evidence to prove that, as no consignee, nor any person on behalf of the defendant, appeared, to aid in the measuring of said lumber, he found it most convenient to cause a portion of it to be piled and measured on said wharf, and that said lumber was properly piled, and the whole of it properly measured.
    The defendant requested the court to charge the jury, that it was the duty of the plaintiff to have measured said lumber on board of said vessel, according to the stipulations of the charter party, and as the whole of it was not so measured, the plaintiff was not entitled to recover. The court instructed the jury, that, as no consignee nor other person on behalf of the defendant, appeared, to assist in measuring the lumber, if the plaintiff acted reasonably, under the circumstances, in removing, «piling and measuring a .part oí said lumber upon said wharf, he might recover, notwithstanding the whole was not measured on board said vessel.
    It was agreed, that the plaintiff caused notice to be published, in one or more public newspapers in San Francisco, that said lumber would be sold at public auction, at a time and place specified, to pay freight and charges, and that, accordingly, said lumber, at said time and place, was sold at public auction, by the procurement of the plaintiff, for the purposes aforesaid, and that the plaintiff procured one Slate to bid in said lumber- for him, and on his account, and authorized him to bid $50 per thousand' feet, if necessary, and that said lumber was set up for sale at said auction in one parcel only, and was bid off by said Slate for and on account of the plaintiff, and who was the highest bidder, for $35 per thousand feet; and the plaintiff took and retained possession of the same, having paid the charges of sale.
    The plaintiff admitted, that he remained in San Francisco, for some time, to make sale of said lumber on his own account, and sold a considerable portion of the same, at retail or in parcels, for a much higher price than $35 per thousand; but he introduced evidence to prove, that said lumber, when sold, was not worth in San Francisco, as an entire cargo, more than $35 per thousand feet, and no more could be obtained for it, in that market, and he claimed that he had acted reasonably, in making said sale, and was not liable to account to the defendant for more than said sum of $35 per thousand feet.
    The defendant claimed, that the plaintiff had not acted reasonably, nor according to commercial usage, in disposing of said lumber, that said auction sale was void, and that the plaintiff was bound to remain in said port of San Francisco a reasonable time, for the purpose of making sales of said lumber, for his own and the defendant’s benefit, in parcels, and was bound to use reasonable diligence to sell said lumber, at the highest prices which could be obtained for it, and was liable to account to the defendant, for such sums as said lumber could have been sold for, by the use of due and reasonable diligence. And he offered evidence to prove, and claimed that he had proved, that, by selling said lumber in. smaller parcels, to different persons, he could have obtained much more for the same, than $35 per thousand feet, and more than enough to pay all his demands for freight and charges, and he prayed the court to instruct the jury accordingly.
    The plaintiff' offered evidence to prove, and claimed that he had proved, that, when he arrived at San Francisco, and during his stay there, labor was worth five dollars per day; that his seamen all deserted on his arrival there; that the charge for wharfage was five dollars per thousand feet, and all other expenses for storage either in vessels or on shore, were very high; and he claimed, that he had conducted reasonably in all he did, and that said auction sale was fair and legal.
    But there was no evidence offered, to prove how much the plaintiff had expended, by reason of his stay in said port, either for wharfage or other charges, nor what sum should be paid or allowed for the detention of his vessel in said port.
    The court charged the jury, that, if said auction sale was made by the plaintiff, and for his benefit, as the defendant claimed, and that if said Slate, in bidding at said auction, and in buying in said lumber, at $35 per thousand feet, acted as the agent of the plaintiff and for his benefit, said sale was void. Also, that the plaintiff having transported said lumber to San Francisco, according to the terms of the charter party, and no consignee appearing to receive said lumber and pay said freight, and said freight not being paid, the plaintiff had a lien upon said lumber for the same. That the plaintiff was only bound to act reasonably, under the circumstances, and was not bound to procure storage on shore for said lumber, and was not bound to remain in the port of San Francisco, with his vessel, for the purpose of waiting for or finding purchasers of said lumber, nor to wait there that he might sell the same at retail or in parcels; but had, under such circumstances, a right to retain the possession of said lumber, and was bound only to account to the defendant, to be applied upon his claim for freight, for the actual value of said lumber as it then was at said port. Also that the plaintiff was not bound to account to the defendant, for the lumber which he afterwards sold as aforesaid, at the prices he received for said several parcels; at any rate, not without deducting from the same all reasonable charges, and expenses on account of the same, and of- the amount of which, no proof was offered.
    The jury having returned a verdict for the plaintiff, the defendant moved for a new trial, on the ground that the court erred, in omitting to charge the jury as requested by him, and in the instructions given as aforesaid.

      Dutton and Ferris, in support of the motion, contended,
    1. That the plaintiff could not recover, because the timber was measured on deck. Nothing was shown, which dispensed with that condition; if the presence of the consignee was contemplated, his death had no other effect than to render a measurement on deck, not in his presence, sufficient. Abbott on Ship., 270, 268. 3 M. & Sel., 267. Aleyn, 26. 19 E. C. L. R., 393. Chitt. Con., 735, and note.
    2. That, under the circumstances, the plaintiff was, as he claimed to be, the defendant’s agent. ' Abbott, 16, (122,) n. 3 Kent’s Com., 312. Abbott, 11, 12.
    The sale he made was confessedly illegal. Barker v. Marine Ins. Co., 2 Mason, 369. 8 Conn. R., 145. Consequently, the goods remained in the hands of the defendant, and, as agent, he was, of course, accountable. Franks v. Stivers, Add., 47. 9 Wheat., 362.
    3. That the court should have instructed the jury, in direct terms, that the plaintiff was bound to account for the sales, and if there were expenses, it was for him to show them. Although the plaintiff had a lien upon the property, that did not authorize him to take it to himself; only to sell it according to law.

      Hawley and Minor, contra, contended,
    1. That the measurement of the lumber upon the deck of the vessel, by a fair construction of the agreement, was not a condition, precedent to the plaintiff’s recovery; it was a mere mode of ascertaining the quantity. The strict performance was impossible, as both parties were to be present, and the consignee was dead. It was a provision for the convenience of the plaintiff, and he could waive it. The court could not charge the jury, as the defendants claimed that it should, that there could be no recovery, unless all the lumber was measured on the vessel, for the plaintiff would, at least, be entitled to recover for the part that was measured on the deck.
    2. The charge, as to the extent of the plaintiff’s liability, was correct. For a tortious appropriation of property, the value is the extent of the damages. A higher responsibility surely, cannot be claimed, for a mere neglect of duty, or failure to fulfill a contract. Where an agent fails to obey express instructions, the value of the property is the extent of the rule. Bell v. Cunningham, 3 Pet., 69, 85.
    In authorities, referred to by the defendant, the agents sought to avoid a liability; therefore, they were not applicable to a case, where the agent was charged with the full value of the property.
   Hinman, J.

We think the ruling at the circuit correct, in regard to the measurement of the lumber. The object of inserting in the bill of lading a stipulation, that it should be measured on the deck of the vessel, is a little doubtful. It would seem that the owner could have no interest in the plan of measurement; and, as the instrument was not signed by him, but by the plaintiff alone, it is probable, that the clause was inserted rather for his own than for the shipper’s benefit. He might think it important to have the lumber measured before it left his ship, that there might be no danger of its being taken from his possession, before the freight was paid. If this was the object, then it would seem, that the plaintiff would have power to waive its strict performance. If, however, the stipulation was for the mutual benefit of both parties, or was inserted for that purpose, it was done to enable them both to be present and see to its correct measurement, and after the death of the consignee, there being no other agent of the owner in a condition to see it measured, the plan of measurement was rendered wholly immaterial. The defendant could not be present by any other agent than the plaintiff himself, and, whether he measured it on the deck of his vessel, or after he had placed it on the wharf, was quite immaterial. No doubt, the parties might make the place of measurement, or the mode of unloading the vessel, a condition precedent to the right to recover freight, whether there was any object, or any materiality in the stipulation or not; but, in giving a construction to an informal instrument of this description, we do not feel bound by the same strict rules, as we perhaps should be, if we were considering a policy of insurance, or some instrument of a more solemn character.

The charge of the court, in respect to the plaintiff’s attempted sale to himself, through the agency of Slate, was correct.

He could not be both vender and purchaser of his principal’s property, and the pretended sale to himself was simply void.

On another point we think the court fell into an error, which may have influenced the jury, in their estimate of damages, and a new trial must, therefore, be granted. The motion shows that, subsequently to the attempted sale to himself, the plaintiff disposed of a portion of the lumber, by sales to third persons; and he admitted, that these sales were made at a much higher price than thirty-five dollars per thousand feet. The sale to himself being void, he, of course, continued to hold the lumber as the property of the defendant, and, whether he was obliged to sell it is of no importance,—he did, in fact, sell it, and the question was, what allowance he should make for the defendant’s property thus sold. The court charged the jury, that he was only bound to account to the defendant, for the actual value of said lumber, as it then was, at the port of San Francisco; and that he was not bound to account for it, at the prices he received for the several parcels sold by him. This charge seems to us erroneous, under any aspect in which it can be viewed. If the plaintiff was, under the circumstances, the defendant’s agent, to dispose of the property, then he was bound to act reasonably, in such agency, and to account for such sums as the property could have been sold for, by the use of reasonable diligence; and, as it was admitted that the lumber brought much more than the plaintiff claimed as its fair value, at that place, it seems clear, that he ought to account for it, at what it really brought.

On the other hand, if it be assumed that, in his subsequent sales to third persons, he was acting tortiously, and, without any authority, was disposing of the defendant’s property, the defendant would still have the right to affirm the sales, as made for his benefit, and to claim the amount which the property brought.

It is true, the defendant did not claim that the court should instruct the jury, that the plaintiff must account for such portions of the lumber as he sold to third persons, at the prices which he actually obtained for it, and, had the court omitted to give any instruction on the subject, the only point would have been, whether there was any error, in omitting to instruct them, that the plaintiff was bound to obtain the highest price for which the lumber could be sold in parcels; had the court merely omitted to make the charge claimed by the defendant, we should have had more doubt, in respect to the granting a new trial; but, as the jury may have been misled by the instruction which was given, the only course which can be taken is to grant a new trial.

In this opinion the other judges concurred, except Church, C. J., who was disqualified.

New trial to be granted.


author: Waite, J.

text:
    Staples vs. Bradley.
    Although a quit-claim deed, in this state, may have the effect of a primary conveyance, operating as a transfer of an estate without warranty, it retains its common law character, as a discharge of a right.
    Where one tenant in common has conveyed his interest in the common estate to a third person, a partition of such estate between such grantee and his co-tenants,"by quit-claim deeds, is valid.
    Where the interest of one tenant in common has been conveyed to a third person, a creditor of such tenant, who claims the conveyance to be fraudulent and void, has no legal interest in the common estate, until he has appropriated the same, or some portion thereof, to the payment of his debt, or has instituted some proceedings for that purpose.
    The defendant, owning certain land in common with others, conveyed his interest therein to a third person, who, with the other owners, made a partition of said land among themselves, by quit-claim deeds. The plaintiff being a creditor of the defendant, and claiming such conveyance from him to be fraudulent and void, obtained judgment upon his debt, and levied his execution upon the premises aparted to such grantee, and brought an act of ejectment to recover possession thereof. Held, 1. That the plaintiff might treat such partition as legal, although claiming that said conveyance from the defendant was void, so far as it was designed to defraud his creditors. 2. That evidence to prove such conveyance thus void, and that the plaintiff* was a creditor of the defendant, was admissible. And 3. That the levy of the plaintiff’s execution was consequently valid.
    This was an action of ejectment, brought to recover possession of a tract of land situated in the town of West-port, tried before the superior court, at the April term, 1854.
    Upon the trial to the jury, it was admitted, that the late Hon. Samuel B. Sherwood was the owner of a tract of land containing about twenty-two acres, embracing the demanded premises, which, upon his decease, descended to his children* Mrs. Bissel, Mrs. Jessup, and William B. Jessup, as his heirs-at-law. The defendant, being a creditor of the said William, levied an execution upon his undivided third part,—had the same set off to him, and then conveyed it to his son David Bradley. David Bradley, Mrs. Bissel, and Mrs. Jessup, afterwards made partition of the land, among themselves, by deeds of quit-claim, by which a portion of the same, embracing the demanded premises, was set in severalty to the said David, Mrs. Bissel and Mrs. Jessup, releasing to him all their interest in the same.
    The plaintiff, having obtained a judgment against the defendant, levied his execution upon the demanded premises, as the property of the defendant, and caused the same to be set off to him. In connection with' the execution, levy, and facts aforesaid, he offered evidence to prove, that the deed of the defendant to his son was fraudulent and void, as against the creditors of the defendant, of whom the plaintiff’ was one. To the reception of this evidence the defendant objected, upon the ground, that the plaintiff, by the levy of his execution, had acquired no title to the demanded premises, and the court excluded it.
    The plaintiff thereupon filed his motion for a new trial, and the case was reserved for the advice of this, court.

      Hawley, for the plaintiff’, contended,
    1. That the levy of the plaintiff’s execution was valid, as against the former co-tenants of the defendant; for they had parted with all their interest in the tract levied on, and all the undivided third, which the defendant had owned in the other lands, had been conveyed to them. The defendant cannot complain; for no injury was done to him, and the fraudulent grantee cannot be heard. The rule, which forbids a transfer by one tenant in common, of part of the common property, by metes and bounds, or the levy of an execution on such part, is adopted, merely for the preservation of the rights of the co-tenants, and extends, in its application, only so far as its reason applies. Such transfer or levy is good, as against everybody but such co-tenants, and against them, when they cannot be prejudiced by it. Porter v. Hill, 9 Mass., 34. Bartlett v. Harlow, 12 Mass., 348. Varnum v. Abbott, 12 Mass., 475. Baldwin v. Whiting, 13 Mass., 57. Rising v. Stannard, 17 Mass., 282. Nichols v. Smith, 22 Pick., 316.

      2. The defendant’s quit-claim deed to his son, if fraudulent, was so, as to his creditors only, but good as between him, and as between both, and the other co-tenants. If the grantees had sued for a partition, the other co-tenants could not have objected, that the transfer to him was fraudulent and voidable by the defendant’s creditors; and partition, obtained in that manner, would have been valid; no creditor of the defendant could have disturbed it. A voluntary partition, by quit-claim deeds, as here, must have the same effect.
    3. It is claimed that if the deed to David was fraudulent, he could not, by his deed, convey anything to the other tenants, as against the defendant’s creditors. 'The decision, in the case of Preston v. Crofut, 1 Conn. R., 527, applies only to conveyances of an estate; creations of a new estate. By this partition, neither party acquired a new estate; each co-tenant had, by it, the same identical estate he had before, changed in form only. David’s deed to the co-tenants, and their deeds to him, gave them only what they had before, in a different form. He, in receiving the deeds from the co-tenants, must, for all the purposes of this case, be regarded as the representative of the defendant; for the defendant, conveying to him, gave him power to act in the matter of partition. Co. Lit., 35, a. 3576. If this be not so, the plaintiff must have levied on one undivided third of the whole, notwithstanding the partition, and the consequence would be, that partition would be entirely broken up, whatever improvements or sales the other tenants had, in the mean time, made. The rule, on which the objection rests, construed and applied according to its object and spirit, leads to no such result.
    4. That the plaintiff, by his levy, got the undivided third part of the tract levied on ; unless, indeed, the partition was entirely nugatory, and even the defendant, nobody else objecting, can insist on the objection. 1 Conn R., 470. 5 Conn. R., 80. 6 Conn. R., 165.

      Butler and Carter, for the defendant, contended,
    1. That the conveyance from Scudder to David Bradley, was utterly void as to the latter, on the ground of fraud, and consequently, that the plaintiff’s levy of his execution was equally void.
    The land having been held by Scudder Bradley, as tenant in common with two others, a portion of it could not be set off by metes and bounds, as his sole property. Beers v. Botsford, 13 Conn. R., 146, 151. Griswold v. Johnson, 5 Conn. R., 363. 4 Conn. R., 495. Starr v. Leavitt, 2 Conn. R., 243. Gates v. Treat, 17 Conn. R., 392.
    2. That the plaintiff could not claim that conveyance to be valid for one purpose, and void for another, so that he can treat it as both valid and void. If he could make such claim, this action would not lie, for Scudder Bradley never had a legal title to the land thus set off; and upon such title alone will ejectment lie. Davenport v. Lacon, 17 Conn. R., 278.
   Waite, J.

The deed, from the defendant to his son, of his undivided interest in the common property, was binding upon the parties, and good against all persons, except his creditors. The grantee, upon receiving the conveyance, became a tenant in common, with the two female heirs of Mr. Sherwood, and it was in the power of either of them, by legal proceedings, to compel a partition of the common property.

In a suit for that purpose, before any interference on the part of the creditors of the defendant, no person, except the co-tenants, could legally be made a party to the proceeding. For, until such creditors had appropriated the property, or some portion of it, in payment of his debt, or had instituted some proceeding for that purpose, he had no legal interest in the property.

If it was in the power of either of the co-tenants, by legal proceeding, to compel partition, it is difficult to see why they may not all voluntarily do, what the law would have compelled them to do.

Their object, in giving release deeds, was not to create any new title, but merely to extinguish the rights of the grantors in the shares released, and thereby to effect partition. This they might have accomplished, by means of a deed of partition, but the more usual mode of doing it in this state, is by release deeds, the one adopted by them. For, although a release deed here, may have the effect of a primary conveyance, operating as a transfer of an estate, without warranty, yet it retains its common law character, of discharging a right. It will convey whatever right or interest the releasor has in the property. Dart v. Dart, 7 Conn. R., 250.

The plaintiff, therefore, when he levied his execution, might well treat the partition as legal, as having been made by the defendant, through the agency of his son, by means of his deed, although the plaintiff, at the same time, insisted that it was void, so far forth as it was designed to defraud the defendant’s creditors. And of this, the defendant has no right to complain. When he gave the deed, he parted with all his interest in the property, and empowered his son to do with it, as he pleased.

Any other construction might operate most injuriously upon the other co-tenants. They, relying upon the validity of the partition, made by all the persons having any legal interest in the property, and being ignorant of any particular design on the part of the defendant and his son, may have gone forward and made substantial improvements upon their respective shares, erected buildings, and improved the land.

Under these circumstances, to hold the partition void, and all those improvements common property, would be. manifestly unjust. Baldwin v. Breed, 16 Conn. R., 60.

We are, therefore, of opinion, that the testimony offered, by the plaintiff ought to have been received, and consequently advise a new trial.

In this opinion, the other judges concurred, except Stokes, J., who was disqualified.

New trial advised.


text:
    Wildman and others vs. Rider.
    "While the statute was in force, prohibiting an appeal from the judgment of a justice of the peace, except in certain specified cases, unless .the sum in demand exceeded seven dollars, an action was brought by the selectmen of a town, demanding seven dollars damages, to recover the expenses incurred by them, in removing a fence from the public highway, under the act to prevent and remove nuisances; to which the defendant pleaded the general issue, and also, that the land from which the fence was removed was his soil and freehold. Held, that such action was not within the provision, concerning appeals on plea of title, of the ninth section of said act, nor the provision of the seventy-second section of the act, relating to civil actions, concerning appeals, where the plaintiff’s right of way is in question; and, therefore, that it was not appealable.
    It is no valid objection to a motion to erase a cause from the docket of a court, that such motion is made by the party who brought the cause to such court.
    It is the duty of the court to do this, whenever it discovers, that it has no juris- . diction over a cause.
    This was an action, brought by the plaintiffs, selectmen of the town of Danbury, upon the statute entitled, “ an act to prevent and remove nuisances, from highways, rivers and water-courses.”
    The declaration alleged, that the defendant had, erected a fence upon the public highway in said town, at the intersection of two highways, so as to include, in his enclosure, a part of the highways, by reason whereof they were made narrower than before, and the passing of travellers obstructed; that he was notified to remove the fence, and neglected to do it, and thereupon the plaintiffs removed the same, and brought their action to recover the expense of such removal, demanding the sum of seven dollars, damages.
    The cause was originally brought before a justice of the peace, and the defendant pleaded the general issue, and also, that the land, on which the fence was erected, was his soil and freehold. The justice found both issues in favor of the plaintiffs, and rendered judgment accordingly. The defendant then appealed the case to the county court, and, having there obtained a verdict and judgment in his favor, the plaintiffs appealed the case to the superior court. They there moved, that the case be erased from the docket, upon the ground, that it was not appealable from the jurisdiction of the justice; but the motion was not sustained by the court.
    The cause was then tried in that court, and resulted in a verdict in favor of the defendant. The plaintiffs thereupon filed a motion in error, and a motion for a new trial, and the case was brought before this court; but, as no opinion was expressed upon the latter motion, a detail of the facts, connected with it, becomes unnecessary.
    The writ was dated October 18th, 1849, and the judgment of the justice was rendered on the 29th of that month.

      Butler and White and Averill, for the motion, contended,
    1. That the action was not appealable. The seventy-second section of the act regulating civil actions, relates to an action for obstruction or injury to a private right of way, and the certificate of the court below must show, that such right of way was in question. The ninth section of the act, relating to nuisances, authorizes an appeal, only in actions for a penalty, which is a pecuniary punishment for the violation of law, and takes money from a party without an equivalent. In the present case, the plaintiffs have rendered an equivalent in advance, having incurred expenses for the benefit of the defendant, and to secure him from liability to pay a penalty, which expenses are the ground of their action.

      2. That it was the intention of the legislature, to discriminate, in favor of the selectmen, in a case like the present. The plaintiffs were in the performance of a duty. They were required to incur the expense, and they are entitled to be reimbursed for that expense, without the burden of an appeal, and a contest in relation to title, upon every consideration which can operate upon the mind of a good citizen. But, if they go beyond this duty, and, as individuals, sue for a penalty, and for their own benefit, there is no injustice in subjecting them to the hazard of an appeal, on the trial of a question of title. Manifestly the legislature did not mean to require them to perform an unpleasant duty, and incur expense, and also defend the public title, through all the courts, and as the mere agents of the law, out of their own funds. Such a construction would be most unreasonable.

      Hawley and Taylor, contra, contended,
    1. That the action was appealable, under the ninth section of the statute regarding nuisances. The term “penalty,” there used, embraces whatever is to be paid by, or is, in any proceeding, recoverable from, any person offending against any section of the law. That which is prohibited, by the third section, is as much an offence against the law, (and against the public,) as anything prohibited, by any other section. The sums, recoverable from offenders by the different sections, although meaning the same things in character, are designated by different expressions.
    2. That the intent of the legislature was to give the right of appeal, in all cases where the title to land comes in question. It is as important, that the defendant have the right of appeal, where title comes in question under section third, as where it arises in any other proceeding under the statute. A decision against him, on a question of title, in a proceeding like this, is as important in its effects, as it could be in any other proceeding under any section of the statute. „

      3. That the act relating to civil actions, (section seventy-second,) gives the right to appeal. The defendant is here charged with the obstruction of a way; the title comes in question, and there is a sufficient certificate of the justice. 6 Conn. R., 418. The legislature never intended to leave questions of title to the final decision of-justices of peace, but has studiously provided an appeal in all such cases.
    A question, as to the existence of a highway over land, is a question of title to real estate. Spear v. Bicknell, 5 Mass., 125. Strout v. Berry, 7 Mass., 385. Bundy v. Sabin, 2 Root, 54.
   Waite, J.

The question presented, by the motion in error, is, whether, at the time When judgment was rendered by the justice, the cause was appealable to the county court.

By the statute, then in force, regulating civil actions, an appeal was not allowed from the judgment of a justice of the peace, except in certain specified cases, unless the sum in demand exceeded seven dollars. Stat., tit. i., ch. 1.

Since the cause was fried before the justice, another statute has been passed, allowing appeals, in all civil cases, from judgments rendered by justices of the peace. Stat. 1853, ch. 2.

Still, the question must depend upon the law in force, at the time when the appeal was first taken. And, as the sum demanded does not 'exceed seven dollars, the enquiry is, whether the case can be brought within any of the exceptions to the general law regulating appeals.

It is claimed, that it falls within the provisions of the ninth section of the act, upon which the suit is brought. It is there provided, that whenever an action shall be brought to recover any penalty, imposed by that act, and the defendant shall justify himself, by reason of his title to the land, and such title shall be in dispute, an appeal shall be allowed.

The answer to this is, that the action is not brought to recover any one of the penalties imposed by the act, but the expenses incurred by the plaintiffs, in removing the nuisance, a duty imposed upon them by the statute.

Again it is said, that the design of the legislature was to allow an appeal, in all cases where the title to land is in dispute. It is true, that, in some cases, that question is made the criterion for determining the right of appeal, but it is not the test in all cases. The title may be in dispute, in an action of assumpsit for the use and occupation of land, but the statute allows no appeal on that account.

It is further claimed, that an appeal was authorized by the seventy-second section of the act relating to civil actions. That applies to a case, where the title to a way, claimed by the plaintiff, shall be brought in question. Here no claim is made, by these plaintiffs, of any title in them to the highway, where the nuisance was erected.

The plaintiffs have merely acted in the discharge of a duty imposed upon them, as public officers, and now sue to recover the expenses incurred in the discharge of that duty.

If indeed, they have exceeded their powers, and removed a fence standing, not upon the highway, but on the defendant’s land, the statute affords them no protection, and they have no right of action against the defendant.

It is finally said, that the motion, to erase the case from the docket of the superior court, was made by the party that carried the case there. But this can make no difference. It was the duty of that court to dismiss the case, whenever it discovered that it had no jurisdiction over it, and it was immaterial, by whom a knowledge of that fact was communicated. This view of the case renders unnecessary the consideration .of the questions, presented in the motion for a new trial.

We are therefore of opinion, that the law did not authorize an appeal of the case, and consequently neither the county nor superior court had jurisdiction. The judgment must be reversed.

In this opinion, the other judges concurred, except Hinman, J., who was disqualified.

Judgment reversed.