text:
    Cowles against Coe.
    New-Haven,
    July, 1851.
    On the trial of a scire-facias in a process of foreign attachment, the defendant admitted, that he had received of G, the principal debtor, goods to a greater amount than the plaintiff’s demand; but he insisted, that they were purchased in satisfaction of debts then due him, or were received under a mortgage from G, to secure certain notes, and that they had been fairly sold, pursuant to a power in the mortgage, and the proceeds applied in payment of those notes. The plaintiff claimed, that such debts and notes were fictitious, fraudulent and void; and that the defendant had in his hands property of G, to a large amount, beyond his just claims. To shew the invalidity and fraudulent character of the defendant’s claims, the plaintiff introduced evidence to prove a conspiracy between the defendant and G, to defraud all persons whom they could induce to trust G; and that the defendant’s claims originated in such conspiracy. After a verdict for the plaintiff, it was held, that the evidence so introduced by him, was properly admitted.
    Though the title to the goods thus fraudulently obtained, would, as between G or the defendant, and the persons of whom they were obtained, be considered as stiff in those persons; yet while the defendant was claiming a right to hold the goods under such purchase, he could not be permitted to deny the title under which he claimed.
    To prove the alleged conspiracy between the defendant and G, the plaintiff offered the deposition of R, stating declarations made by G to R, while G was engaged in purchasing goods of him, on credit, and relative to G’s responsibility and means of obtaining money through the defendant’s aid; these declarations were objected to, not on the ground that the conspiracy had not been sufficiently proved, but because the defendant was not present when they were made; it was held, that they were admissible, within the rule regarding declarations made by a conspirator in furtherance of the common object.
    Where the plaintiff, in such case, offered evidence to prove, that after the failure of G, the defendant continued to pay his debts and accept his orders, notwithstanding the defendant’s claim that G then owed him, and still owes him, a large sum; it was held, that this evidence was admissible, as conducing to shew, that the defendant’s claim was unfounded.
    Where the plaintiff, in such case, also offered evidence to shew, that all the goods and effects of G, mortgaged to the defendant, as security for certain promissory notes, had been, after the execution of such mortgage, left in the possession and use of G, and so continued until the commencement of this process; it was held, that such evidence was admissible, as shewing a secret trust, or at least, that the mortgage was merely colourable.
    After the plaintiff had introduced his evidence to prove the conspiracy claimed, he offered testimony to prove certain declarations made by G, after his failure, and not accompanied by any act of his, or referring to the defendant; which taken together, amounted to an admission by G, that he was a bankrupt, that he had cheated his creditors, and that they had been foolish in trusting him. The court, in submitting the cause to the jury, stated the matters in issue, and said, that the plaintiff could recover only for the goods belonging to G in the defendant’s hands, or for his indebtedness to G, when the copy was left. After a verdict for the plaintiff, it was held, 1. that proof of such declarations was not in strictness admissible; but 2. that, as the facts proved were abundantly sustained, by other evidence, and were indeed conceded, the defendant could not be prejudiced thereby, and a new trial ought to be refused.
    The practice of granting new trials, in cases where substantial justice has been done, merely because some immaterial matter was introduced on the trial, ought not to be encouraged.
    This was a scire-facias in a process of foreign attachment. The original action was assumpsit, brought by Luman Cowles, against Francis A. Gale, an absent and absconding debtor, leaving a copy in service, on the 3d day of April, 1848, with Russell Coe, the present defendant, as the trustee and debtor of Gale.

    The defendant pleaded the general issue, on which the cause was tried, at New-Haven, October term, 1850.
    On the trial, the plaintiff required the defendant to disclose on oath, whether, on the 3d day of April, 1848, when the copy of the original writ was left in service with him, he, the defendant, had in his hands any of the goods or effects of Gale, the original debtor, concealed, so that they could not be found or attached, or was indebted to him; and thereupon the defendant, being duly sworn, said, that previous to the time specified, viz., in the year 1847, Gale became indebted to the defendant, by two several promissory notes, each for the sum of one thousand dollars, and by five other promissory notes, amounting to about fifteen hundred dollars in the whole, and in a further large sum, by book; that in the course of the year 1847, the defendant received from Gale, in Boston and elsewhere, goods, wares and merchandize, the property of Gale, to apply on his indebtedness, all which was, by the defendant, within the year 1847, fairly sold and applied towards the satisfaction of the book debt; that in the month of February, 1848, he, the defendant, received from Gale, in Boston, certain other goods, wares and merchandize, the property of said Gale, to sell and apply upon one of said notes of one thousand dollars, which property was, within that month, fairly sold and applied in extinguishment of said note; and that, on said 3d day of April,
      1848, he, the defendant had in his hands certain articles of merchandize belonging to Gale, of the value of eight hundred dollars, but that all the articles of property last-mentioned, were then, and for more than two months had been, mortgaged to the defendant, for the security of said five notes then due to the defendant, with power to sell the same, and apply the proceeds thereof to the notes,—all which articles of property were afterwards, pursuant to such power, fairly sold, and the proceeds applied on the notes—leaving due the defendant from Gale, upon the several notes and book debt aforesaid, about the sum of two thousand dollars; and the defendant swore, that on the 3d day of April, 1848, he was not indebted to Gale, and had not in his hands any goods or effects of Gale, otherwise than as aforesaid; and the defendant further swore, that the indebtedness of Gale to him, due as aforesaid, on said 3d day of April, 1848, had not been, in any way, reduced, prior to the trial of this cause; but that the same, with the interest thereon, wras due to the defendant, at the time of trial.
    And thereupon the plaintiff offered other testimony to prove, that said notes and book debt were fictitious and void; and that property, to the amount of several thousand dollars, over and above the amount of said notes and book debt,—being the property of Gale—had, prior to the 3d day of April, 1848, passed from the hands of Gale into the hands of the defendant; of which property, the defendant, in his testimony, had given no account; and that the defendant, on said 3d day of April, 1848, was indebted to Gale, and had concealed in his hands, so that it could not be found to be attached, property to a large amount. To the admission of this testimony the defendant objected; but the objection was overruled and the testimony received.
    And in order to show, that the notes and book debt aforesaid were void, and that the mortgage above-mentioned, under which the defendant, on the 3d day of April, 1848, was holding the personal property covered by it, was void, the plaintiff offered to prove, that before any of the aforesaid notes were given by Gale to the defendant, and before any indebtedness of any kind had accrued from Gale to him, he, knowing that Gale was bankrupt, and not fit to be trusted with goods upon credit, entered into a conspiracy with him, for the purpose of cheating and defrauding all persons whom they could induce to give him credit; and that the plan of the defendant and Gale was as follows: That the defendant, being in good credit, and being a director in the Meriden Bank, and being well known among merchants, should, for the purpose of giving to Gale a false and deceitful credit, assume, publicly, a close intimacy with him; that he should go with him from place to place, particularly where the defendant was well known, and Gale unknown; that the two should represent Gale to all persons, as a man of wealth, responsibility and credit, and falsely cause all persons to believe, that he would, at all times, be supported by the funds and resources of the defendant and the Meriden Bank; that they should thereby obtain for Gale an extensive credit from all persons whom they could deceive, by the false pretences and appearances aforesaid; that the defendant should, during the early operation of this scheme, and for the sole purpose of insuring its ultimate success, furnish Gale with money, from time to time, to enable him to meet promptly his early payments; that the property obtained by Gale, in pursuance of this scheme, should be shifted, from time to time, into the hands of the defendant; and that when, by such fraudulent contrivances, the credit of Gale should become extended to its utmost limit, the defendant should suddenly dispose of and secrete, so that they could not be found to be atttached, all the goods, wares and merchandize, obtained by Gale on credit, in manner aforesaid, and fraudulently keep the same, and the proceeds thereof, out of the reach of Gale's creditors, while he should again become utterly bankrupt.
    And the plaintiff, in connexion with proof of such conspiracy, offered to prove, that in pursuance of said conspiracy, and for the purpose of carrying it into effect, and for no other purpose, the defendant lent to Gale, in the outset, the two thousand dollars, constituting the consideration of the two one thousand dollar notes aforesaid; and that after such fraudulent scheme had gone into operation, the defendant, for the same fraudulent purpose, lent to Gale the money and property constituting the consideration of the other five notes and book debt aforesaid; and that all the goods, wares and merchandize, claimed by the defendant to have been received of Gale, in Boston, and elsewhere, in year 1847, and all the goods, wares and merchandize, claimed by the defendant to have been received of Gale, in the month of February, 1848, and sold and applied as aforesaid; and divers other large amounts of goods, not accounted for by the defendant, in his testimony, were, pursuant to said conspiracy, fraudulently obtained by Gale, in manner aforesaid, in the year 1847, and previous to the 31st day of January, 1848; and did, prior to said 31st day of January, 1848, in pursuance of said conspiracy, come into the hands of the defendant; and had not been, on or before the 3d day of April, 1848, restored, by the defendant, to Gale, or applied, in any way, to the payment of any debt due from him to any person, except the indebtedness of Gale to the defendant, incurred in manner aforesaid. To the admission of which proof the defendant objected, as irrelevant and inadmissible, under the issue closed in this action; but the court overruled the objection, and permitted the plaintiff to prove the same.
    And thereupon the plaintiff, in connexion with evidence going to prove the existence of the conspiracy claimed by him, offered to read the depositions of Leverett E. Rice and George B. Ripley, with the declarations of Gale, therein contained, made, as the plaintiff claimed, during the continuance of such conspiracy and in furtherance of it.

      Rice’s deposition was as follows: “I am an importer of watches, at No. 16 Maiden Lane. I am acquainted with Francis A. Gale—first became acquainted with him in the spring of 1846. He was introduced to me, by Elbridge Morse, of Wallingford, Conn. Mr. Gale belongs in Meriden, Conn.

    The different dates at which I have sold Mr. Gale, watches, are as follows:—He bought and paid for watches, to the value of from five to seven hundred dollars, in the years ’46 and ’47. Mr. Gale now owes me the following notes for watches: one note, Aug. 7th 1847, 6 months, payable at Meriden Bank, 111 dollars, 50 cents; one note, Oct. 16th, 1847, 4 months, payable at Meriden Bank, 263 dollars; one note, Nov. 19th, 1847, 4 months, payable at Meriden Bank, 417 dollars; one note, Dec. 21st, 1847, 4 months, payable at
      Meriden Bank, 174 dollars; one note, Jan. 24th, 1848, 4 months, payable at Meriden Bank, 216 dollars.
    The watches which I have sold to him, are some gold patent levers, gold anchor escapement, gold lepines, and a few silver levers.
    Mr. Gale stated to me, frequently, that he was engaged in the manufacturing of tin ware; that he owned the factory and stock, and owned a farm, worth four to five thousand dollars, unencumbered. I supposed, from his, Gale’s statements to me, in reply to my questions about his business, that Mr. Russell Coe was connected with him in business: he spoke about Mr. Coe, and his assisting him to dispose of the watches, and assisting him with money, when he needed it; and he (Mr. Gale) always used the word “we” in speaking of his business.
    [Cross-examined, by the defendant, in person.] He always gave me his own notes. I never asked him to give me a company note, for the reason he could not give me any other, without specifying that it was an individual note, if he had a partner. Mr. Gale said, that Mr. Coe “lent him money, when he was short.”

      Ripley deposed as follows: “I am engaged in the commission paper business, at No. 244, Pearl-Street, in New-York city. I know Francis A. Gale, of Meriden: he commenced dealing with us, about the last part of 1846. He bought and gave his notes, which were paid, for about 180 dollars. The following notes are now due to us, by him, for paper:

      Aug. 30th, 1847, 6 months, to G. B. Ripley & Co. 107 dollars, 38 cents; Oct. 14th, 1847, 6 months, to G. B. Ripley & Co., 301 dollars; Nov. 18th, 1847, 6 months, to G. B. Ripley & Co., 210 dollars, 6 cents; Dec. 17th, 1847, 6 months, to G. B. Ripley & Co., 507 dollars, 75 cents; Jan. 22d, 1848, 6 months, to G. B. Ripley & Co., 653 dollars, 90 cents; Oct. 25th, 1847, 4 months, to King & Ripley, 59 dollars, 44 cents.
    The notes were principally for writing paper, which was sent to him, packed in cases holding from thirty to forty reams; some of almost every variety that we had.
    I also sold him hardware paper, tissue paper, coloured paper and wrapping paper. I sold him some other, but not a great deal; but there was a large quantity of straw boards.

      Gale told me, that he owned a farm—a very valuable farm, worth from five to six thousand dollars, unencumbered; that he had a great deal of stock, of various kinds—tin ware and britannia ware, in his hands—that he was buying continually in New-York, and kept up a good deal of trading.
    He said, that we need not fear to trust him; that his notes would be paid; that when he wanted money, he could raise it out of the Meriden Bank, through Mr. Russell Coe, who was a director.
    We gathered from his, Gale's, conversation, that a large portion of this property passed into Mr. Russell Coe's hands; that they were constantly engaged in business transanctions with each other.
    He, Mr. Gale, told us, that part of the fees, for which the last mentioned note was given, were for Mr. Russell Coe.

    [Cross-examined, by defendant, in person.] I don’t know, that any of the property ever went into Mr. Coe's hands, except from what Mr. Gale said.
    To the admission in evidence of the declarations of Gale, contained in these depositions, the defendant objected, on the ground that those declarations were not made in his, the defendant’s, hearing. The court overruled the objection and admitted the depositions, without expunging any part thereof.
    The plaintiff offered to prove, as part of the circumstances establishing the existence of such conspiracy, that, in the year 1847, the defendant and Gale went together to Chauncey Boardman of Bristol, in this state, and also to E. C. Brewster of Bristol, and to divers other citizens of this state and elsewhere, to whom the defendant was well known, and to whom he introduced Gale, as a gentleman wishing to purchase goods on credit, and falsely and fraudulently represented him, to them, to be a man of property and credit, owning estate and doing business in Meriden, and one who could safely be trusted; that Boardman and Brewster, and others, confiding in these representations of the defendant, did thereupon, soon thereafter, within the year 1847, and previous to the 31st day of January, 1848, at the request of Gale, sell and deliver to him divers large quantities of goods, wares and merchandise, for which he gave his promissory notes on time, which had never been paid; he having failed and become bankrupt on the 31st day of January, 1848; that all the goods, wares and merchandise afterwards, at different times and previous to the 3d day of April, 1848, were sent by Gale and delivered to the defendant, in Boston and elsewhere; and that they were, in part, the same goods which the defendant claimed to have received and applied on said book account and note.
    The plaintiff furthermore offered the testimony of R. I. Ives, that in the years 1849 and 1850, (while, as the plaintiff claimed, the defendant was holding and concealing Gale’s property from his creditors, in pursuance of the conspiracy aforesaid, and while, as the defendant had previously testified, he had claimed that Gale was justly indebted to him as aforesaid,) Gale traded with the firm of Birdsey & Ives, of Meriden, on account of the defendant, to the amount of about two hundred dollars, which the defendant subsequently paid: and also the testimony of Hervey D. Bassett, of Meriden, that in the year 1849, and during the same period last-mentioned, he delivered goods to Gale, to the amount of thirty-three dollars, upon the verbal order of the defendant, for which the defendant has since paid: and also the testimony of Seth H. De Wolf, that all the goods and effects of Gale, which were claimed to have been mortgaged to the defendant, as security for said five several promissory notes, after the execution of said mortgage bill of sale thereof, were left in the possession and use of Gale, as his own, and so continued, at the time of the leaving of the copy with the defendant, on said 3d day of April, 1848.
    And the plaintiff, after introducing testimony tending to establish the existence of said conspiracy, introduced the testimony of Edmund Curtiss, that after the failure of Gale, in the year 1848, during the continuance of the alleged conspiracy, and while the defendant, in pursuance thereof, was, as the plaintiff claimed, holding and concealing from Gale's creditors, the property fraudulently received by him from Gale, in manner aforesaid, Gale, in conversation with Curtiss, (not in the presence or hearing of the defendant,) said, he, (Gale,) “had done it up brown; that folks were devilish fools for trusting him; that twenty thousand dollars would not pay his debts, but that twenty-one thousand would; that he had not intended to cheat poor folks, but only intended to equplaialize the circulation.” The ntiff also introduced the testimony of William Ives, that long after Gale’s failure, but during the continuance of the alleged conspiracy, and while the defendant, in pursuance thereof, was, as the plaintiff claimed, holding and concealing from Gale’s creditors the property fraudulently received by him from Gale, in manner aforesaid, Gale, in conversation with Ives, about his failure, (the defendant not being present,) said, that he (Gale) “owed twenty thousand dollars, and did not mean to pay one damned cent of it:" to all of which testimony the defendant objected, but the court admitted it.
    The court, in submitting the cause to the jury, informed them, that the action was not brought to recover for the fraud of the defendant and Gale, in obtaining goods, but to recover for the goods of Gale, in the hands of the defendant, and his indebtedness to Gale, at the time the copy of the writ was left with him; and if they should find, that goods had been fraudulently obtained by the defendant and Gale, in the manner claimed by the plaintiff, such finding, of itself, would not justify a verdict against the defendant; but to enable them to find such verdict, it was necessary for them to find, that, at the time when the copy was left with the defendant, he had concealed in his hands the goods and effects of Gale, so that they could not be found to be attached, or that the defendant was indebted to Gale; and that such verdict could not exceed the amount in value of such goods and said indebtedness.
    The jury returned a verdict in favour of the plaintiff; and the defendant, conceiving that the court erred and mistook the law in its several rulings, moved for a new trial.

      Kimberly and C. A. Ingersoll,

    in support of the motion, contended, 1. That if the claim which the defendant sets up in his defence, is a true state of the case, he has done no wrong to the plaintiff, in not delivering up to him the goods, which, it is alleged, came to his hands. He had a right to hold them, not only against the plaintiff, but against any one else.
    2. That if the plaintiff has a right to make, in this case, upon the issue closed, the claim which he makes, (which we deny,) then, upon the state of facts, as claimed by plaintiff, the defendant has done no wrong to the plaintiff, in neglecting to deliver to him the goods demanded; that he had been guilty of no neglect of duty; that the plaintiff had no right to the goods demanded, to apply them to his own use, in any way; and that the defendant has done nothing of which the plaintiff has any legal right to complain. Upon the claim which he makes, Boardman, Brewster and the other creditors, from whom the goods in the hands of the defendant were obtained, would have a right to complain, and would have right to them; but the plaintiff would have no right to them, and would not be entitled to take them to apply on his execution. Thompson & al. v. Rose, 16 Conn. R. 71. Chitt. Cont. 633, 4. Hill v. Perrott, 3 Taun. 274.
    3. That it was not competent, for the purpose for which the evidence was offered, for the plaintiff to prove the conspiracy, as claimed. In the first place, it had nothing to do with the issue which the jury were to try. That issue was this, and only this—had the defendant, on the 3d day of April, 1848, the goods of Gale in his hands, concealed so that they could not be attached; and was the defendant, on that day, indebted to Gale? Secondly, if the facts which the plaintiff offered to prove, were as claimed by him; still the payment of the notes and book account by Gale to the defendant, would be a good application of the property of Gale for that purpose, and the plaintiff could not complain of that payment. Boardman v. Roe & al. 13 Mass. R. 104. Thirdly, the plaintiff should not have been permitted to give evidence of the conspiracy and fraud, as claimed, as the plaintiff could not be prejudiced, by such conspiracy and fraud, if it existed. He had not been defrauded of his goods. He could not be prejudiced or defrauded, by any fraud which the defendant may have perpetrated upon Boardman and Brewster.

    4. That if it was proper for the plaintiff to prove the conspiracy, as claimed by the plaintiff, then the evidence offered to prove such conspiracy, was not proper for that purpose. By the course which the cause took, the defendant was put upon his trial, charged with entering into a conspiracy with
      Gale, to obtain fraudulently from Boardman, Brewster and other persons their goods, and with converting them to his own use. Upon such a trial, no evidence but legitimate evidence could be admitted to establish the charge. He is on trial, and not Gale. Now, in the first place, the declarations of Gale, made to Ripley and Rice, as set forth, in their depositions, were not proper evidence to prove the conspiracy, as claimed. The declarations of a conspirator, not on trial, against an alleged conspirator, who is on trial, made in the absence of the latter, are not evidence against the latter, to establish the conspiracy. 1 Phill. Ev. 103. 2 Stark. Ev. 403-5. And if the conspiracy had been established, all the declarations would not have been admissible, as they were not all made to carry out the conspiracy, as claimed. Secondly, the declarations made by Gale to Curtiss and Ives, in 1849 and 1850, after the failure of Gale, and after the object of the alleged conspiracy had been accomplished, and and after this suit was commenced, in the absence of the defendant, were not legal evidence for the purpose for which the declarations were offered. First, they did not tend to establish a conspiracy, or to affect the defendant, in any way; they only tended to establish fraud in Gale. Secondly, if they did tend to establish a conspiracy or fraud in the defendant, they were not admissible. For the declarations of a conspirator against his co-conspirator, narrative of past occurrences and of what had been done, are not evidence against the co-conspirator, he not being present when the declarations were made. 1 Phill. Ev. 97, 8. 2 Phill. Ev. 179. 1 Greenl. Ev. § 111. 2 Burr's Tri. 578. 539.
    5. That the act of Gale, in trading, in 1849 and 1850, after the object of the alleged conspiracy had been accomplished, with Birdsey & Ives, and with Bassett, and which accounts the defendant afterwards paid, did not tend to establish the conspiracy claimed, and was not relevant to any point in controversy between the parties.
    6. That the evidence which the plaintiff offered, that the farming utensils and tools which had been mortgaged to the defendant, in January, 1848, to secure the payment of the notes for 1,500 dollars, were left in the possession of Gale, and that Gale was in the possession of them on the 3d of April, 1848, was not proper, either to establish the conspiracy, or to establish any fact in controvery between the parties. If the fact was, as the plaintiff claims it to have been, the defendant could not, under such circumstances, be made liable for the farming utensils thus mortgaged, and left in the possession of the mortgagor. Central Bank v. Prentice & al. 18 Pick. 396.

      Kimberly and Peck, contra,
    contended, 1. That the introduction, by the plaintiff, of other testimony than the disclosure of the defendant, was proper. First, the statute authorises it; and it may be done, by the plaintiff and defendant. Stat. 116. 119. Secondly a long course of decisions in this state, sanctions it. Dewitt v. Baldwin, 1 Root, 138. Vaughn v. Sherwood, 1 Root, 507. Thompson v. Stewart, 3 Conn. R. 182. Witter v. Latham, 12 Conn. R. 403. 1 Sw. Dig. 754. (Dut. ed.)
    2. That this statute, being for the prevention of fraud, should receive, as it always has received, a liberal construction. Stat. of 1784, p. 34. preamble. Prudden v. Leavenworth, 2 Root, 129. Star v. Tracy, 2 Root, 528. Enos v. Tuttle, 3 Conn. R. 27. Treadway v. Andrews, 20 Conn. R. 384.
    3. That the evidence going to shew, that there was a conspiracy to defraud between Gale and the defendant, and that the notes and book debt of the defendant against Gale originated in that conspiracy, was proper, to prove that there never was any right of set off in the defendant, as against the attaching creditor. Thomas v. Goodwin, 12 Mass. R. 140. Jarvis v. Rogers, 15 Mass. R. 414. Crowninshield v. Kittridge, 7 Metc. 520. Goodrich v. Downs, 6 Hill, 438. Harris v. Sumner, 2 Pick. 129. 137. Raymond v. Sellick, 9 Conn. R 480.
    4. That evidence having been introduced, to shew, that a conspiracy existed betwen Gale and the defendant, to defraud the creditors of Gale, all the facts and declarations of Gale connected with, and explanatory of, the fraudulent transaction, were admissible. Am. Fur Co. v. United States, 2 Peters, 365. Foster v. Hall, 12 Pick. 89. Bradley v. Obear, 10 N. Hamp. 477. Tappan & al. v. Powers & al. 2 Hall, 297. 298. Benham v. Cary, 11 Wend. 83. McKenney v. Dingley, 4 Greenl. 172. Seaver v. Dingley,

      Id. 306. Aldrich v. Warren, 4 Shep. 465. Gray v. Natives, 1 Pike, 557. Clayton v. Anthony, 6 Rand. 285. Welch v. Cooper, 3 Law Rep. (new series) 466. 1 Greenl. Ev. § 111. 112. Nichols v. Dowling, 1 Stark. Ca. 81. Wright v. Court & al. 2 Car. Pa. 232. (12 E. C. L. 104.) Hawes v. Daigley, 5 Shep. 341. Stoveall v. Farm. & Mech. Bank, 8 Sm. & Marsh. 305.
    5. That the defendant could not have been prejudiced, by any of the evidence relating to the fraud; for the judge was careful to instruct the jury, that they could not find a verdict for the plaintiff for the fraud; but that they must find, that, at the time the copy was left in service with the defendant, he had concealed in his hands the goods and effects of Gale, or that Gale was indebted to him.
    6. That the writ of scire-facias is a judicial writ, and is never issued, except upon a matter of record. When counting on a judgment, it never sets forth an original cause of action—it is only a continuation of the former suit, and not an original proceeding. Jacob’s Law Dict. art. Sci. Fa. Rev. Stat. 61. 72. 89. 289. 424. 2 Archb. Pract. 76. 81. 84. 88. 1 Chitt. Plead. 269. Osgood v. Thurston, 23 Pick. 110. First, the cause of action against the present defendant, is the judgment of the city court, rendered in the city of New-Haven, against Gale. The effect of this writ is merely to enforce that judgment, by granting an execution against Coe. But secondly, the statute fixes the matter, by making it peremptory, that the writ shall issue from, and be returned to, the court having cognizance of the original action. Rev. Stat. 116.
   Hinman, J.

The questions raised upon this motion relate to the rulings of the superior court in the admission of testimony. The issue depended upon whether the defendant, at the time the copy was left with him, as the garnishee of Gale, had goods liable to attachment concealed in his hands and belonging to Gale, or was indebted to him.

The defendant testified, that he had no such goods, and was not indebted. He admitted, that he had received goods to a greater amount than the sum claimed; but insisted, that they were rather purchased in satisfaction of debts due him, or, were received under a mortgage from Gale, to secure certain notes; and that they had been fairly sold, pursuant to a power contained in the mortgage, and the proceeds applied in payment of said notes.

The plaintiff’s claim was, that the debts and notes, claimed by the defendant as due from Gale, were fictitious, fraudulent and void; and also, that the defendant had property, to a large amount, over and above all his honest claims.

The case, then, turned upon the validity and bona fide character of the indebtedness of Gale to the defendant.

In order to shew, that it was invalid and fraudulent, and the mortgage void, the plaintiff was permitted to prove, that before any such indebtedness accrued, Coe and Gale entered into a conspiracy to cheat and defraud all persons whom they could induce to trust Gale, by fraudulently representing to them, that he was a man of wealth, responsibility and credit; and that he would be supported by the funds of Coe; and that, for this purpose, Coe should, from time to time, furnish money to enable Gale to meet his early payments; and the property thus obtained by Gale should be shifted into Coe’s hands, and he should dispose of and secrete it, so that it could not be attached; and the proceeds thereof should be kept from Gale’s creditors, while, he, in the meantime, should become utterly bankrupt; and in connection with this, that the debts and notes which Coe claimed to be due from Gale, all originated in this fraudulent combination, and for money lent to him for the purpose aforesaid; and under which fraudulent conspiracy, much of the property in the defendant’s hands was obtained.

We think this testimony was properly admitted. Indeed, it is not very strenuously claimed, that, for debts thus corruptly contracted, Coe would have a right, as against bona fide creditors of Gale, to retain property to pay himself. His position is no better than that of a purchaser of property for the purpose of defeating the creditors of the vendor from obtaining payment; and such a purchaser cannot retain the property against creditors, notwithstanding he pays full value of it.

It is insisted, however, that the plaintiff’s claim shows, the property never belonged to Gale, but to the persons of whom he fraudulently obtained it. That would be so, undoubtedly in a contest between Gale or Coe, and the persons of whom the property was obtained: but with that, the plaintiff has nothing to do, until Coe shews, that he has redelivered it to the original owners, or has accounted to them for it. He cannot, while he is claiming the property under his fraudulent purchase, prove, or use, his own fraud, to defeat the plaintiff. If he had accounted to the original owners for it, it might be inequitable to compel him to account for it again to the plaintiff; but, until he does that, it does not lie in his mouth to deny the title under which he claims.

Again, it is said, that the conspiracy was a fact not within the issue, and, therefore, not admissible. It is true, the only question was, whether the defendant had property in his hands belonging to Gale, or was indebted to him; and not, how the property was obtained. But that he had such property, was an admitted fact; and he set up Gale's indebtedness to him, as a reason for his not accounting for it to the plaintiff. The conspiracy was then shewn, for the purpose of evincing the fictitious and fraudulent character of this pretended indebtedness; and this being shewn, the defendant was left without excuse, with Gale's property in his hands, to be accounted for at its fair value. Coe testified and claimed, that Gale’s indebtedness to him was bona fide. This evidence went directly to contradict him, and to disprove his claim. We do not see how it could have been excluded.

It is claimed, that the declarations of Gale, made to the witnesses Rice and Ripley, as stated in their depositions, were improperly received, the defendant not being present when they were made.

The rule on this subject, is, that any declaration made by a co-conspirator, pursuant to the common object, and in furtherance of it, is admissible against all of them, when the combination is once established. 1 Phil. Ev. 94, 5. &c. These declarations were not objected to, on the ground that sufficient evidence of the combination had not been given. Had they been objected to, on that ground, it would have been for the court to determine, whether there was sufficient evidence to warrant the jury in finding such a combination as was claimed. As the parties treated the evidence on that point as sufficient, we do not see any other objection that could be raised to these declarations. They appear to have been made while Gale was engaged in purchasing goods the witnesses on credit, having first paid for some that he had previously bought of them; and his representations in regard to his responsibility and his means of obtaining money, by the aid of Coe, were such as were well calculated to carry out the main object of the combination. We do not see, therefore, why they do not come strictly within the letter of the rule.

The court permitted the plaintiff to prove the conduct of Coe in paying the debts, and accepting orders of Gale, after his failure. This is objected to, as improper; but, upon what plausible ground, we have been unable to see. If the defendant’s present claim is correct, that Gale, on his failure, owed him, and still owes him, a large sum, it would seem to be unaccountable, that he should voluntarily go on increasing the indebtedness; and his doing so, is, as it seems to us, very strong evidence, from which the jury might reasonably draw the inference, that his present claim was unfounded. It is evidence, in the nature of a confession or admission, inconsistent with his present claim; and is, perhaps, as much to be relied upon as any actual admission could be, inasmuch as there is but little room for misconstruing conduct of this description.

Of a similar character was the evidence going to show, that the mortgaged property was left in Gale’s possession, after the mortgage. This, in ordinary cases, would be conclusive evidence of a secret trust, which would render the mortgage fraudulent in law; and, in any aspect, it is strong evidence, that the mortgage was a mere colourable thing.

The remaining question, is, whether the declarations of Gale to Edmund Curtiss and William Ives were properly received. These declarations were not offered, as in any way tending to prove the combination claimed. The motion shews, that they were offered and received, after the plaintiff’s evidence on that subject, had been introduced. Had they been admitted for that purpose, or if, under the circumstances, they could have had any influence with the jury on that point, we should feel bound to advise a new trial, on this account.

They do not appear to have accompanied any act of Gale, in pursuance of the combination, and, therefore, were not made in furtherance of it. But they seem, rather, to be in the nature of admissions of Gale, after his failure, of what he, individually, had done. He did not allude to the defendant, in any part of them. Taken together, they amount to an admission by Gale, that he was a bankrupt; that he had cheated his creditors; and that they had been foolish in trusting him. No one can doubt the truth of these admissions, certainly not the two first of them; and if his creditors could have known him, as he appears in the evidence in this case, no one could doubt the folly of giving him credit. Still if the evidence could have had any injurious effect upon the defendant, he would be entitled to a new trial. We think, however, they could have had no such effect; and the practice of granting new trials, in cases where substantial justice has been done, merely because some immaterial matter has been introduced on the trial, ought not to be encouraged. In this case, the truth of these admissions of Gale stand out, prominently, some one or more of them, in almost every piece of the evidence reported in the motion; and the whole trial seems to have proceeded upon the ground of the hopeless bankruptcy of Gale, and his dishonesty in contracting his debts; and we are told, that such was the case. The defendant himself stated, that he had a large debt against him. So the testimony of Rice, Ripley, Boardman, Brewster and others, shews large debts in favour of each of them; and that the debts were contracted, by means of his fraudulent representations.

Now, as this evidence did not tend at all to connect the defendant with Gale, and was not introduced or used for that purpose; and, as the facts which it did prove, were abundantly sustained, by other evidence in the case; and especially, inasmuch as they were conceded facts, and were acted on, as such, throughout, we do not see how the defendant could have been prejudiced by them. And in this connexion, it is not perhaps unworthy of notice, that the jury were very carefully cautioned against suffering the fraud of Gale, or of the defendant, from having any undue weight with them; and they were distinctly charged, that the plaintiff could not recover, on the ground of the fraud of any of the parties; but only for goods belonging to Gale in the defendant’s hands, or his indebtedness to him, at the time of leaving the copy.

Under all these circumstances, although we have not been able to see the strict propriety of the evidence, yet, for the reasons above given, we do not advise a new trial.

In this opinion the other Judges concurred.

New trial denied.


source: Caselaw Access Project

author: Waite, J.

license: Public Domain

text:
    Atwater, executor of Chauncey Barnes, deceased, against Barnes:
    IN ERROR.
    The testator, by his will, appropriated 500 dollars to build a dwelling-house for the comfort and convenience of his wife and children, in case she and her friends, should think it proper and necessary, and appointed S trustee, to make the expenditure. In the absence of S, in a remote part of the United States, the sum mentioned in the will was expended, by the executors, in repairing the existing dwelling-house; such repairs being necessary for the health and comfort of the family, and the expenditure being judiciously made. Held, that a charge for such expenses, in the administration account, was properly made, and allowed.
    The policy of our law requires, that our probate records should furnish all needful information relating to the estates of deceased persons, that all who are interested therein, may, by resorting to them, ascertain their respective rights. The true condition of all the estate must appear from the inventory, or the account, or from both together.
    Therefore, where it appeared, that the executors had received sundry sums of money, amounting to 508 dollars, part of the estate of the testator, which they omitted to credit in their administration account; it was held, 1. that the appropriate remedy was an appeal from the decree allowing such account; 2. that the error, being shewn, was a sufficient ground of reversal.
    Where it further appeared, in such case, that the executors had delivered over all the estate of the deceased, to the widow, who was entitled to the use thereof, during the minority of the children; it was held, that this fact, though it might affect the damages in a suit upon the bond for not rendering a true account, had no bearing upon an appeal from probate, the object of which was, to set aside the decree appealed from.

      New-Haven,

    July, 1851.
    This was an appeal from the judgment and decree of the of probate for the district of Wallingford, made on 10th day of December, 1832, accepting and allowing the administration account of the defendant, executor of the last will and testament of Chauncey Barnes, deceased. The appellant was one of the children of the deceased; and the appeal was taken, within the time limited by law, after his arrival at the age of twenty-one years. The account was the following:
    Chauncey Barnes’ Estate.

      Willis Atwater, in account with said estate. Dr.
    To amount of inventoried real estate, . . $1312.00
    “ “ “ “ machinery, . . 900.00
    “ Personal property and cash, . . . 815.78
    “Additional inventory, viz., mistake in Selden Barnes’ note, inventoried $200 less by mistake, 200.00
    “Additional inventory of debts due estate, . 27.23
    3,255.01
    Cr.
    By paying debts against the estate, $431.89
    “repairing house, . . . . 500.00
    “Administrator’s private bill, . 52.50
    “Allowance for support of family, . 125.00
    “Court and clerk fees, . . . 6.57
    1,115.96
    Balance of real and personal estate, . $2,139.05
    The cause was referred to a committee, whose report, among other matters, embraced the following facts. The testator, by his will, gave the use of all his estate to his wife, for the support and education of his children, until the youngest should become of age; and then to be so divided, that his wife should take one-third of his personal estate, and the use of one-third of his real estate, during her life; and the residue to be equally divided among his four children, of whom the appellant was one. In the event of her decease or marriage, before his youngest child became of age, a distribution was to be made.
    The will then contained the following provision: “And in case it should be thought proper and necessary, by my wife and her friends, to build a dwelling-house for the comfort and convenience of my wife and children, at any time previous to the distribution of my estate, then in such case, I hereby appropriate out of my estate, a sum, not exceeding 500 dollars, for building a new dwelling-house, for the use of my wife and children; and when my estate shall be distributed, the house shall be distributed as a part of my estate. And I hereby appoint Selden Barnes, trustee, to expend such part of said sum as may be necessary for the building of the house.” He then appointed his wife and the defendant, executors of his will.
    The committee found, that in addition to the sum of 27 dollars, 23 cents, credited in the account, there were due the deceased, at the time of his death, from sundry persons named, divers sums, which, before the exhibition of the administration account, had been paid to one or other of the executors, or notes had been taken for the same, which had been subsequently paid; that such debts, amounting to 508 dollars, 60 cents, were a part of the estate of the testator; and that the executors should have charged themselves for the same, in their account, but had not so done.
    In relation to the charge of 500 dollars, for repairing house, the committee found, that it had been expended, by the executors, for that purpose, but without the knowledge or advice of Selden Barnes, who, at the decease of the testator, and until a considerable time after the completion of the repairs, was absent, in a remote part of the United States; that the repairs were judiciously, prudently, and economically made; were necessary for the convenience, comfort and health of the widow and children of the deceased; and were, in all respects, suitable and proper. When they came to the knowledge of said Selden Barnes, he expressed no dissent, or disapprobation; and the estate was increased in value, to the full amount of the expenditure.
    After the settlement of the administration account, on the 17th day of December, 1832, the defendant delivered over to the widow of the deceased all the property in his hands belonging to the estate, and took her receipt for the same, in which she promised to keep the property safely, and dispose of the same according to the will of the testator.
    Upon a hearing before the superior court for the county of New-Haven, at the January term, 1851, upon an appeal from the decree of the court of probate, it was reversed; and the defendant filed his motion in error, by which the record was transmitted to this court.

      C. A. Ingersoll, for the plaintiff in error,
    contended, 1. That there was nothing allowed, by the court of probate, in favour of the executor, which ought not to have been allowed. The charge of 500 dollars, for the building of a house, was a proper charge. The money was expended substantially according to the directions contained in the will, and so as to accomplish, in the best manner, the object of those directions.
    2. That the will directs, that all of the estate, after paying the proper charges of settling the estate, and after the expenditure of the 500 dollars for a house, should go to the widow. The use of all of it was given to her.
    3. That all the estate, after deducting the proper charges, has gone as the will directed it should go. It has gone into the possession of the widow. The committee has found, that all the estate has gone into the possession of the widow, according to the directions of the will.
    4. That if the order of the court of probate settling the executor’s account, should be set aside, and a new settlement should be had, neither the appellant, nor any one claiming under the will, would receive more than they had already received.

      Seymour and Buel, for the defendant in error,
    contended, 1. That it being found by the committee, that at the time of the allowance of the administration account, the executor had collected and received, as part of said estate, funds to the amount of 508 dollars, 60 cents, which he did not render, and which were not charged to him in said account; and that in this, the account was false and incorrect; the decree of the court of probate allowing said account, must, therefore, be reversed. First, the account purports to furnish the record evidence of the amount of estate in the executor’s hands, and for which he is accountable; and that account is established, by the judgment of the court having jurisdiction thereof, as true, which is found to be false and untrue. Secondly, it also furnishes record evidence of the amount to which the devisees are entitled, and precludes them from claiming of the executor a large sum. Thirdly, it is conclusive against all parties interested, unless set aside on this appeal. In face of this decree, can the devisees, or other parties interested, claim of the executor a larger amount than that found and decreed by the court?
    2. That the charge of 500 dollars, for repairs of the dwelling-house, ought not to have been allowed, because the money was expended without authority, and without the knowledge or consent of the trustee, by whom alone it was to be made.
    3. That the fact that Atwater, after the settlement of the account, delivered over to his co-executor Mrs. Barnes, (who was entitled to the use of the estate during the minority of the children,) all the moneys, notes, effects, &c., in his hands, and took her receipt therefor, is no answer to the questions arising on this appeal. First, the question on this appeal, is, was this account true or false, at the time this decree was passed? Secondly, it is to correct the erroneous decree of the court of probate, on the 17th of December, 1832, that this appeal is taken, so that the records shall shew the truth, and the true amount in the executor’s hands, to which the remainder-men are entitled. Thirdly, no subsequent proceedings between the executors, can correct this account or erroneous decree, as against the devisees. Fourthly, Atwater and Mrs. Barnes were co-executors, and jointly liable; and the receipt given by Mrs. Barnes to Atwater, is no discharge of him, or of his trust, as against the appellant. 1 Sw. Dig. 454. 2 Kent's Com. 354. Edmonds & al. v. Crenshaw, 14 Peters' R. 166. Crosse & ux. v. Smith & al. 7 East, 246. Dorr v. Wainwright, 13 Pick. 328.
    4. That the decree ought to be reversed and the account correctly stated, because in a suit against the executor, on his bond for not executing the will, it furnishes the rule of damages.
   Waite, J.

We do not think the court erred, in allowing the executors, in their account, the charge of five hundred dollars, for repairing the house. An appropriation to that extent, was made in the will, for anew house. The testator clearly intended, that his widow and children should be provided with a comfortable habitation.

The only objection against this charge, is, that the expenditure was not made by the person appointed for that purpose in the will. The object of that provision evidently was, to secure a judicious application of the money. It was not for him to say, whether another house should be provided, or the widow and her children continue to live in the old one.

That question was to be determined, by her and her friends; and when they decided, that another house was necessary and proper, it was for him merely to execute their orders. But when that decision was made, he was absent, in a remote part of the Union, and could not perform the duties assigned him in the will.

What then were the family to do? Were they to be without a house, which is found to have been necessary, both for their health and comfort, merely because the agent appointed to procure one, was absent and could not act? Such surely could not have been the intention of the testator. Under such circumstances, we do not think the executors transcended their powers, in making the expenditure themselves.

Besides, it is found by the committee, that the repairs were not only necessary for the health and comfort of the family, but that the expenditure was prudently and judiciously made, and the property of the testator increased in value to the extent of the expense incurred. Barnes, since his return, has expressed no dissatisfaction. There has, therefore, been a substantial compliance with the directions of the will. The plaintiff and the other children of the deceased have undoubtedly enjoyed the benefit of the expenditure; have sustained no loss in consequence thereof; and therefore, in our opinion, have no just cause for complaint on that account.

2. The omission of the executors to render a true account of all the debts by them collected, presents a more serious difficulty.

The policy of our laws requires, that our probate records shall furnish all needful information relating to the estates of deceased persons, that heirs, creditors, and all others interested therein, may resort to them, for the purpose of ascertaining their respective rights.

Thus, an executor or administrator must cause a true and perfect inventory to be made of all the estate, and all the credits and choses in action, as far as may be, which must be sworn to by him, and deposited with the court. Stat. 352. § 28. He must also give bond with surety, that he will well and truly administer the estate, according to law, make a true and just account of his administration, and deliver all the residue of the estate, which shall be found remaining upon his said account, the same being first examined and allowed by the court of probate, unto such person or persons as the court, by decree pursuant to law, shall appoint, Stat. 348. § 13.

Under these statutes, the practice has generally been, to embrace in the inventory all the bonds, notes, and other obligations shewing a specific indebtedness. But as to open and unsettled accounts, where it cannot be well ascertained, until an adjustment has been made, whether there is any balance due to the estate, and if any, how much, it has been usual to credit all sums received, and charge all balances paid, upon such adjustments, in the administration account. Thus the inventory and the account together will then exhibit the true condition of all the estate.

In strictness, every sum collected, and not embraced in the inventory, and every debt paid, should be separately entered in the accounts, or upon lists furnished to the court and lodged on file, that every person interested in the estate may not only know what are the assets belonging to the estate, but may be furnished with the requisite means of information, to enable him, by inquiry, to test the accuracy of the account.

In the present case, it appears, that more than five hundred dollars, in debts due to the estate, have either been collected, by the executors, or secured to them, of which no account has been rendered, either in the inventory or the administration account. How are the minor children of the deceased, upon becoming of age, to know any thing about the matter? If they resort to the probate records for information, they are much more likely to be deceived than instructed. They find an account, which has been exhibited by the executors, and allowed and approved by the court. In that account, a small sum is credited for the amount of debts collected. The legal presumption is, that it includes the whole; and yet, in fact, it comprehends but a small portion of them.

It is said, that the proper remedy is upon the bond to the judge of probate. It would be a very ungracious act, on the part of the judge, to allow an account as just, and then turn around and sue the executors, because it was not a just account. But this precise question has been settled, by two decisions of this court; and it has been holden, that the appropriate remedy is by an appeal. Goodrich v. Thompson, 4 Day, 215. Edmond v. Canfield, 8 Conn. R. 87. Hosmer, Ch. J., in the case last cited, remarked, that “an administration account, sanctioned by the decision of the court, is necessarily precedent to the distribution of the deceased’s estate. Every item in every administration account, must be examined and adjudicated upon, by the court of probate; nor is this a matter of form, but of substance; otherwise, the records of the court, which ought to be of incontrovertible verity, would afford no evidence of the just and legal settlement of an estate.”

The proper course, therefore, for the court to pursue, when an account is exhibited, is, to enquire whether it is a true and just one, and embraces all the items which ought, to be included, and nothing more; and if he finds it to be right, to accept and allow it; otherwise, to reject it. And if the executors neglect to present an account that is satisfactory, the proper remedy is, to cause a suit to be instituted upon the bond.

It can be of no possible use to pass a decree, sanctioning an account, unless it be a true one, shewing the precise amount of assets in the hands of the executors, and such an one, as may form a basis for subsequent orders, in relation to the disposition of those assets.

3. It is finally said, that as Atwater, the present defendant, has delivered over all the estate of the deceased, to the widow, who is entitled to the use of the same, during the minority of the children, he ought not to be made liable in the present suit.

That circumstance might be material in relation to the damages, in a suit upon the bond for not rendering an account; but it can have no effect upon the present case. The object of the appeal, is, merely to correct a decree of the court, in determining the balance of estate in the hands of the defendant, at the time of the settlement, when that balance was not the true one. It is taken by one who is interested in that question, and who was no party to the subsequent arrangement made between the executors, and of course, cannot be affected by it.

We are therefore satisfied, that there is no error in the judgment of the superior court, reversing the decree of the court of probate.

The other Judges were of the same opinion, except Church, Ch. J., who was absent.

Judgment affirmed.


author: Ellsworth, J.

text:
    Derwort and wife against Loomer.
    The court is reluctant, at all times, to set aside the verdict of a jury, because they have erred in weighing evidence; nor will the court feel at liberty to do this, where the jury have passed upon a mere question of fact, unless the verdict is so palpably against the evidence as to shew that their minds were not open to reason and conviction, or that an improper influence was brought to bear on their deliberations.
    But where the action was for injuries to the plaintiff, by the overturning of a stage-coach in which she was a passenger, resulting from the negligence of the defendant’s agent; and from the undisputed facts in the case, the court could see, that there was culpable negligence in the defendant’s agent; the defence rested, not only upon the absence of such negligence, but a settlement and discharge, by the plaintiff’s attorney, whose authority was denied; and both issues being submitted to the jury upon the evidence, they gave a verdict for the defendant; it was held, that the jury must have proceeded upon false notions of law, and as, in the opinion of the court, the verdict was against the evidence, on both grounds, a new trial was granted.
    In such cases, legal negligence is not a pure question of fact for the jury, but is mixed up with principles of law, so that its determination involves a conclusion of law, or more properly, a rule of responsibility, to be applied by the court.

      New-Haven,

    July, 1851.
    In the case of common carriers of passengers, the highest degree of care, which a reasonable man would use, is required by law.
    This rule applies alike to the character of the vehicle, the horses and harness, the skill and sobriety of the driver, his watchfulness, and his conduct, under every emergency or difficulty.
    The contract to carry passengers differs from that to carry freight, only in this, that in the latter case, the carrier is responsible at all events, except for the act of God and the public enemy.
    Public notice given by a carrier, that he will not be responsible for freight, or that it is at the risk of the owner, will not vary the carrier’s liability.
    Nor will the custom of stage-proprietors and their drivers to load down the vehicle, with passengers and freight, to its utmost capacity, regardless of the state of the roads, exonerate them from liability.
    The practice of converting stage-coaches into freight wagons, to transport iron, and almost every thing else, is an innovation upon the rights of the travelling community, which the court will not sanction or countenance.
    An attorney, employed to commence and prosecute a suit, but not otherwise authorised, has no power to settle that suit, and discharge the defendant from the plaintiff’s claim.
    This was an action on the case, for injuries sustained by Marion Derwort, one of the plaintiffs, and wife of George H. Derwort, the other plaintiff, in consequence of the overturning of a stage-coach, owned by the defendant, and used by him for the conveyance of passengers for hire, from Bridgeport, to Derby.

    The declaration, after alleging, that the defendant received said Marion, as a passenger, to be conveyed safely, in his stage-coach, from Bridgeport to Derby, for a certain reward, averred, that the defendant, not regarding his duty, did not use proper care, but neglected so to do, and suffered a large quantity of iron, to wit, one ton of iron, and divers other ponderous articles, to be deposited on the top of said coach; and did permit said coach to be greatly overloaded; and did permit said coach to be driven in and over an unsafe and unusual part of the road, from said Bridgeport to said Derby, so that, by means of said iron being deposited on said coach as aforesaid, and by reason of said coach being overloaded, and also by reason of the coach being driven upon and over an unsafe and unusual part of said highway, by the defendant, and while said coach was proceeding with said Marion therein, in and along the public highway from Bridgeport to Derby, and before the arrival of the same at Derby, the coach was overturned; by means whereof, one of the arms of said Marion was broken, and she was otherwise greatly bruised, wounded and injured, and became sick, sore, lame and disordered, and has so continued to the present time.
    The defendant pleaded, 1st, the general issue; 2dly, a release and discharge of the defendant, by Henry T. Huggins, Esq., the attorney of the plaintiffs, in consideration of the sum of 350 dollars, paid by him, to said George H. Derwort; which sum the latter accepted and received of the defendant, in full satisfaction and discharge of the grievances alleged.
    On these issues the cause was tried, at New-Haven, January term, 1851.
    The evidence adduced is too voluminous to be detailed in this report. On the general issue, the following witnesses testified for the plaintiffs. G. H. Derwort, one of the plaintiffs; Marion Derwort, his wife, also one of the plaintiffs, and the person injured; Julius R. Pond, Edwin Wells, Dr. Frederick J. Judson, Dr. Samuel Beach, Joseph Sands, Philo F. Barnum, Charles Schwageller, G. A. Wells and Dr. Foot.

    On the same issue, the following witnesses testified for the defendant. James Bradley, driver of the stage-coach; Lewis Downs, David L. Mills, Jeremiah Allen, Sanford Stevens, James Nasson, Garry M. Peck, Mrs. Bassett, Thomas Burlock and Richard Welton.

    From the whole testimony the following facts were proved, with litle or no discrepancy. On the 13th of February, 1849, the plaintiffs took passage, at Bridgeport, in a stage-sleigh, owned by the defendant, and driven by James Bradley, from that city to Birmingham, in the town of Derby. There were eleven passengers, exclusive of two children of the plaintiffs, their luggage, and a quantity of iron, (upwards of 400 lb.) on the top, projecting before and behind. After going between one or two miles from Bridgeport, Northerly, towards Birmingham, the sleigh passed into a deep cut, where the snow was blown in; the sleigh being on double sets of runners, the fore-runners went steady, while the hind runners slid round, and the vehicle, with its contents, turned over. Mrs. Derwort's arm was broken, and she was otherwise bruised and injured. This was, in some degree, a dangerous place. On the West bank of the road, the snow was deep; on the right, there was a hollow or gutter. On the question of negligence in the driver, in this instance, the testimony was various, and somewhat discordant; but that he had experience in this business, was of good habits and generally careful, was admitted, or proved and not denied.
    On the special plea, the defendant, to prove the authority of Huggins to make the settlement and give the discharge, introduced the testimony of R. H. Osborn, clerk of the court; Henry T. Huggins, the acting attorney; Sidney B. Beardsley, his partner in business, when the suit was commenced; Sylvester P. Smith, L. L. Loomer, the defendant and-Wooster.

    The testimony of these witnesses was met, on the part of the plaintiffs, by that of S. B. Beardsley, further examined, of Charles Nettleton, G. H. Derwort, one of the plaintiffs, and Philo F. Barnum.

    The cause was submitted to the jury upon the evidence; and they returned a verdict for the defendant. The plaintiffs thereupon moved for a new trial, for a verdict against the evidence.

      Dutton and E. K. Foster, in support of the motion,
    contended, 1. That the plaintiffs had shewn a good cause of action against the defendant; the principles of law involved in the case being in their favour, and the evidence adduced on the trial clearly proving the matters of fact in issue. First, the power of the court to grant a new trial for a verdict palpably against evidence, where justice has not been done, is a salutary power, and one fully established. Bulk-

      ley v. Waterman, 13 Conn. R. 328. Kinne v. Kinne & al. 9 Conn. R. 102. 1 Wash. C. C. 123. 4 Wash. C. C. 32. Secondly, carriers of passengers are liable for the least negligence or want of skill or prudence. Aston v. Heaven, 2 Esp. Ca. 533. Christie v. Griggs, 2 Campb. 79. Sto. Bail. 376. Maury v. Tallmadge, 2 McLean, 157. Hall v. Conn. River Steam-boat Co. 13 Conn. R. 320. Camden & Amboy Rail-road and Transportation Co. v. Burke, 13 Wend. 611. Thirdly, in the case of accident, the law prima facie implies negligence; and to shew the contrary, the onus probandi lies upon the defendant. Christie v. Griggs, 2 Campb. 79. Ware v. Gay, 11 Pick. 106. Stokes v. Saltonstall, 13 Peters, 181. Fourthly, the driver of a stage-coach is bound to notify passengers before passing a dangerous place. Dudley v. Smith, 1 Campb. 167. Maury v. Tallmadge, 2 McLean, 157. This is true, as a general rule, and was especially so, in this case, as such was the engagement of the driver. Fifthly, if the driver of a stage-coach upon a public road may elect either of two courses, one of which is safe, and the other hazardous; and he elects the latter; he is responsible for the injury which ensues. Mayhew v. Boyce, 1 Stark. Ca. 423. Sixthly, the matters of fact in issue, regarding the negligence of the driver and the injury to the plaintiffs, were clearly proved, so that the verdict is palpably against the evidence. [Here the evidence relating to this part of the case, was minutely examined.]
    2. That the plaintiffs have not discharged their right of action. The power of an attorney is confined to the prosecution of the suit in which he is engaged, and the incidents therewith connected; and he has no power to settle the suit, without express authority. Vail v. Conant, admr. of Jackson, 15 Verm. 314. Penniman v. Patchin, 5 Verm. 346. 352. Lewis, admx. v. Gamage, 1 Pick. 347. Holker v. Parker, 7 Cranch, 436. [The evidence on this point was here commented on.]

      C. A. Ingersoll and Blackman, contra,
    contended, That in this case, the verdict of the jury on both the issues, was in conformity with the evidence in the cause. In relation to the general issue, they contended, 1. That it was not enough that the plaintiff’s wife has been injured, by the overturning of the defendant’s stage. The rule is, that however great an injury the plaintiffs may have sustained, by the oversetting of the defendant’s stage, yet if the defendant, so far as human care and human foresight could go, did provide for the plaintiffs a safe conveyance, with a good driver, and properly conducted in the transportation of his passengers, he is not liable. Christie v. Griggs, 2 Campb. 79.
    2. That there was no negligence or fault, on the part of the defendant, in placing the iron on the top of the stage, for two reasons. In the first place, it was not the cause of the accident. The stage would have overturned, if the iron had not been on the top of it. But, in the next place, if the stage had been overturned in consequence of the iron being on the top of it, the defendant would not be liable; for that was a proper way of carrying that quantity of iron. The defendant had advertised to carry freight. His stage was a freight stage, as well as a passenger stage. It was usual, safe and prudent, to carry iron.
    3. That there was no fault or negligence in the defendant, in taking the number of passengers, that he did take. The stage was not overset in consequence of the number of passengers. And if it had been, the defendant would not be liable; for it was a proper way to carry the number of passengers that were in the stage. It was designed for twelve inside. He had seven grown persons and four children.
    4. That there was no negligence or fault in driving on that part of the road where the stage was overturned. It was the usual and only track. There was indeed no other track.
    5. That there is no other negligence charged; and there was none, that the defendant could be charged with. For the stage was a good and safe one; there were good horses and kind; there was a skillful driver—none better; and the horses were on a walk, when the accident happened.
    The plaintiffs therefore did not make out a case.
    6. That in relation to the other issue, the plaintiffs’ claim, if they had one originally, has been settled and discharged. In the first place, the plaintiffs did, in point of fact, authorize Huggins, their attorney, to settle the suit; and in pursuance of that authority, Huggins received the money of the defendant, in satisfaction of the claim, and discharged it.

      But Huggins, as attorney, had a right to receive the money which was paid, in satisfaction, and discharge the claim. The demand was not for a certain sum. It was to recover a reasonable sum. And when the claim is for a reasonable sum, the attorney may receive a reasonable sum, and discharge the demand. And he is to be the judge of what is a reasonable sum. When he receives a reasonable sum, he receives that which he is employed to recover. Wycoff v. Bergen, Coxe, 214. McLaine v. Bachelor, 8 Greenl. 324. When a claim of this kind is put into his hands, to recover satisfaction for the injury, he can submit to arbitration; (Gorham v. Gale, 7 Cowen, 744. Holker & al. v. Parker, 7 Cranch, 436.) Agree to a reference under a rule of court; (Cahill v. Benn & al. 6 Binn. 99. Somers v. Balabrega, 1 Dall. 164. Holker & al. v. Parker, 7 Cranch, 436. Talbot v. McGee, 4 Monroe, 377.) And upon a state of facts upon which the case is to be decided; (Pike v. Emerson, 5 N. Hamp. 393. Alton v. Gilmanton, 2 N. Hamp. 520. Doe d. Wetherell v. Bird, 7 Car. & Pa. 6. (32 E. C. L. 415.) And upon the amount for which judgment shall be rendered. Gorham v. Gale, 7 Cowen, 744. Anon. 1 Wend. 108. He can therefore indirectly agree, upon the sum which shall be paid in satisfaction; and if he can do it indirectly, he can do it directly.
    Further, the agreement made between the defendant and Huggins in good faith, was a discontinuance of the suit; and the plaintiff ought not to have been permitted to bring the cause to trial, after that agreement had been entered into, and it had been filed with the clerk. Stat. 63. Gaillard & al. v. Smart, 6 Cowen, 385.
    Finally, if the court should be of opinion, that better justice would have been done, if the verdict had been for the plaintiffs, still a new trial will not be granted, unless it appears clearly and palpably, that the verdict was against the evidence in the cause. Where the evidence was contradictory, and its effect depended upon the credibility of the witnesses, the verdict will not be set aside as against evidence, although the preponderance of the evidence, in the opinion of the court, should have been against the verdict. Bacon v. Parker, 12 Conn. R. 213. Palmer v. Hyde, 4 Conn. R. 426. Lafflin v. Pomeroy, 11 Conn. R. 440. Douglass v. Tousey,
      2 Wend. 352. Keeler v. Fireman's Ins. Co. of Albany, 3 Hill, 251. Astor v. Union Ins. Co. 7 Cowen, 202.

         It may be proper to state here, what has been omitted in the text, that at the term of the court in October, 1850, the defendant appeared, and moved the court to discontinue the suit, on the ground of the settlement and discharge subsequently pleaded in bar. The facts alleged in the motion being denied, by the plaintiffs; the court thereupon made the following finding; “This court does not find, that the said Huggins ever had any authority to settle said suit, or execute the writing set forth in said motion, except what may be implied from the fact, that he was employed by the plaintiffs, as their attorney in the suit, and his appearing and acting as such; and this court does not find any collusion, on the part of the defendant, in obtaining said writing, or that he had any other knowledge in relation to the authority of said Huggins respecting the settlement of said suit, except what may be implied from his knowledge that said Huggins was the attorney in said suit." And the cause thereupon was continued.

   Ellsworth, J.

This is a motion for a new trial, because the verdict is against evidence.

It has been argued before us, as if two issues had been tried to the jury; one upon the sufficiency of the evidence to support the declaration, and the other, the sufficiency of the evidence to support the plea of accord and satisfaction, and release.

We are of opinion the jury erred, in rendering their verdict for the defendant, on either ground of defence, and so obviously erred, that we shall allow the plaintiffs to present their cause for trial, to another jury.

The court is reluctant, at all times, to set aside the verdict of a jury, for the cause that they have erred in weighing evidence; nor do the court feel at liberty to do this, where the jury have passed upon a mere question of fact, unless we see, that the verdict is so palpably and manifestly against evidence, as that it is apparent their minds were not open to reason and conviction, or that an improper influence, from some cause or other, was brought to bear on their deliberations. We do not say that this is that case; nor that we would now interpose and grant a new trial, did we consider the verdict as involving matters of fact, only. But it involves more. We think the jury must have proceeded upon false notions of law; certainly they did, if they found there had been no fault or negligence, on the part of the defendant, or his agent. Neglect of duty, or legal negligence, is not, in all cases, a pure question of fact for the jury, but is often mixed up with principles of law, so that negligence becomes a conclusion of law rather than of fact; or more properly, it becomes a rule of responsibility, which courts, through the verdict, aim to have applied faithfully and uniformly. Jurors not unfrequently entertain singular notions of the accountability of common carriers and stage proprietors; and they will, sometimes, pertinaciously follow out those notions, notwithstanding the instructions and efforts of the court to the contrary.

Upon the undisputed facts in this case, we believe there was clear, culpable negligence in the defendant’s agent. Here was a stage-sleigh, loaded within and without, with passengers, thirteen in number, on narrow double runners, (of course, somewhat unsteady,) passing on a road made smooth and sidling, by constant use. And this place was on the edge of a dangerous gutter, which the driver well knew from his long familiarity with the road, both in summer and winter. The danger was enhanced, by the 418 pounds of iron stowed upon the top. Nothing was more probable than that this sleigh would upset, in any place of danger or difficulty. The hind runners slid down the declivity of the worn road into the gutter below, and the stage was upset. It might, under the circumstances, have been expected, and need not be ascribed, to any accidental cause; nothing extraordinary, had happened, and no difficulty existed but what a prudent, careful man could and would have foreseen and avoided. Beyond a question, this stage, for such a load, was greatly overloaded and rendered unmanageable. The place in the road, had become dangerous from the very great use to which it had been subjected, on the day of the accident and the day previous; together with the recent fall of snow. Why, we ask, did the accident happen? Why did the stage upset? It was broad day; the horses were under entire command; and nothing had given way. Now, while we would not be too rigorous in laying down the degree of attention required from stage proprietors and railroad companies in transporting passengers, we must hold them to the greatest care and watchfulness.

The rule of law on this subject, is fully established, in our own courts and elsewhere, and is not controverted, by the learned counsel, in this case. The principle is, that in the case of common carriers of passengers, the highest degree of care which a reasonable man would use, is required. This rule applies alike to the character of the vehicle, the horses and harness, the skill and sobriety of the driver, and to the manner of conducting the stage, under every emergency or difficulty. The driver must, of course, be attentive and watchful. He has, for the time being, committed to his trust the safety and lives of people, old and young, women and children, locked up, as it were, in the coach or rail-car, ignorant, helpless, and having no eyes, or ears, or power to guard against danger, and who look to him for safety in their transportation. The contract to carry passengers differs, it is true, from a contract to carry freight; but in both cases, the rule is rigorous and imperative: in the latter, the carrier is answerable at all events, except for the act of God and the public enemy; while, in the former, the most perfect care of prudent and cautious men is demanded and required. The stage-owner does not warrant the safety of passengers; yet his undertaking and liability as to them, go to this extent; that he, or his agent, shall possess competent skill, and that, as far as human foresight and care can reasonably go, he will transport them safely. He is not liable for injuries happening to passengers, from sheer accident, or misfortune, where there is no negligence or fault, and where no want of caution, foresight or judgment would prevent the injury. But he is liable for the smallest negligence in himself or his driver. Hall v. Conn. River Steam-boat Co. 13 Conn. R. 320. Stokes v. Saltonstall, 13 Pet. R. 191.

The defendant relies upon his proof, that the stage was not overloaded; that thirteen passengers with their baggage, and with freight, to the amount of 418 pounds, placed on the top, is not unreasonable or excessive. He says, his sleigh was strong, his horses kind, his driver skillful and sober; and that this is enough to screen him from liability. Now, all this may be true; and yet there may have been, and we think there was, great and culpable negligence. Obviously, the place had become unsafe and perilous. If the sleigh slipped on the margin of the gutter, it was sure to upset, and if it did upset, the weight of the iron was likely to produce the very result we discover, i. e., pinning down Mrs. Derwort, with her broken arm, until the iron could be removed and she rescued from her alarming condition. We see not why the driver could not have gone, as in fact others did, further East or further West. If necessary, he should have stopped the horses, and descended from his seat, and examined the difficulties in the way. He could have beaten down the drift of snow, if really blocking the path, and he could not otherwise have sufficiently hugged the West bank, or he should have examined and gone, as he certainly might, in the gutter on the East; and if he could not have done either, he should have given the passengers notice of the danger that was apparent, that they might have left the sleigh, and thus saved themselves from the imminent danger of passing upon the brink of this gutter. This carefulness might have occasioned some delay and trouble to the driver; but it is no more than what a reasonable man would have done, on the occasion; and if done, it would have saved a world of suffering, and an injury to Mrs. Derwort, which makes her helpless and dependent, through life.

It is no apology that freight is put upon these stages, as in this case, under public or any other notices. The liability continues the same. Nor is it any apology, that stage proprietors and their drivers are accustomed to load down their stages with passengers and freight, notwithstanding the state of the roads, until nothing more can be crowded within or accumulated on the top. It is high time that the law on this subject should be better understood and regarded; and that such unpardonable liberties should cease to be taken, by persons who stipulate to carry passengers safely and without exposure. Converting stage-coaches into freight wagons, to transport iron, and well nigh every thing else, is the last innovation upon the rights of the travelling community, and it is one which we do not intend to sanction or countenance.

As to the compromise and release by Mr. Huggins, for the sum of 350 dollars, paid to him by the defendant, if that was the ground of the verdict, we fear the jury gave it an importance in their deliberations to which it is not entitled. If indeed the defendant was frank and fair in seeking the plaintiffs’ lawyer at all, rather than the plaintiffs themselves, for the purpose of effecting a compromise, and has properly settled the case, by paying said lawyer the stipulated satisfaction, it is hard, we admit, that he should be obliged to pay it again; but the loss must fall upon one of these parties; and we know of no rule, but what the law declares, to say which shall bear it.

It cannot be contended from the evidence, that Mr. Huggins had any specific authority to make a settlement and release. He was, it is true, their attorney, in court, to conduct the cause to a final judgment,; but this gave him no authority out of court to put an end to it, at his election, upon terms satisfactory to himself. It is true Huggins swears, that he was especially authorised to settle with the defendant, and discharge the suit; and this is substantially all the evidence the defendant adduces to make out such authority. On the other hand, Mr. Derwort as distinctly denies it, and insists, that he gave no such authority. We do not feel at liberty to give credit to the testimony of Mr. Huggins; for his own narration of the matter, and his admitted deceptive conduct and declarations, destroy the credibility of his testimony. The transaction, viewed most favourably for Mr. Huggins, reflects no honour upon his fidelity and integrity; but rather, it would seem, that under a momentary pressure, he has abused his client’s confidence, and sullied the fame of a profession which lends no countenance to deception and dishonesty.

But it is said, Mr. Huggins is to be taken to have authority, because he was the plaintiffs’ attorney in court. No case has been cited which sustains this position. An attorney is the representative of his client in court; he is held to be authorised to commence and conduct that cause to final judgment and execution, and to do whatever is usual and necessary to bring about that end, through all the forms and stages of legal proceedings. Further; there are cases where it is held, that he may go beyond this, as if the execution is returned unsatisfied: it has been held, he may proceed to collect the debt, by instituting a new suit on the judgment. In all cases, he may give directions to the sheriff in levying the execution, and he may receive the money from the sheriff, when collected; but he cannot receive a part of the execution and discharge the debtor; nor can he receive any thing in payment but money, nor the note of the defendant, and much less can he compromise the action, or the claim, before judgment, for what may be satisfactory to himself. We refrain from going into the various distinctions given in the books on this subject. The general question of the authority of an attorney, has often been discussed in courts of justice, and many cases are to be found in which distinctions, of more or less importance, have been taken. But in none of them is it held, that an attorney, who's clothed with no other authority than what is incident to his retainer, can compromise and discharge the claim. We find no reported case where the principles are discussed so elaborately and satisfactorily, as by Ch. J. Hosmer, in Brackett v. Norton, 4 Conn. R. 517. To those who wish to prosecute this enquiry further, we refer to Smith v. Bossard, 2 McCord’s Ch. R 409. Gaillard v. Smart, 6 Cowen, 385. Cheever v. Merrick, 2 N. Hamp. 376. Lewis, admx. v. Gamage, 1 Pick. 347. Huston v. Mitchell, 14 S. & R. 307. Kellogg v. Gilbert, 10 Johns. R. 220. Commissioners of Accounts v. Rose & al. 1 Desaus. 469. Gorham v. Gale, 7 Cowen, 739. Richardson v. Talbot, 2 Bibb, 382. Gray v. Wass, 1 Greenl. 257. Holker v. Parker, 7 Cranch, 436. Lambert v. Sanford, 2 Blackf. 137. Herbert v. Alexander, 2 Call, 498, Vail v. Conant, 15 Verm. 314. Sharp v. Grey, 9 Bing 457. (23 E. C. L. 331.)

The other Judges were of the same opinion.

New trial advised.