author: Storrs, J.

text:
    Eld against Gorham.
    The volume termed the “Revised Statutes of Connecticut,” published in 1849, is to be deemed to contain all the public statute laws, which were in force in this state, in January, 1849.
    The copy of the revised statutes deposited in the office of the secretary of state, certified under his hand and the seal of the state, has the same force and effect as if it were a portion of the original records of the legislature, and, as such, imports absolute verity.
    Therefore, it is not competent to the court, in an ordinary civil suit, inter par-tes, to permit any enquiry into the correctness of the proceedings of the revising committee, or of the secretary of state, in relation to such revised, statutes. [Two judges doubting.]
    On these principles, it was held, in an action by A against B, on a promissory note, commenced on the 28th of June, 1848, and tried in January, 1849, that the defendant was a competent witness in his own favour.

      New-Haven,

    July, 1849.
    This was an action on a promissory note, made by the defendant, payable to the order of W. M. B. Gorham, and by him indorsed to the plaintiff.
    The cause was tried, on the general issue, at New-Haven, January term, 1849.
    The defence set up by the defendant, was, that the note was altered and made negotiable, after it was signed by the defendant, without his consent or knowledge. To establish this defence, the defendant offered himself as a witness; to which the plaintiff objected. It was admitted, that the General Assembly of this state adjourned sine die, on the 28th day of June, 1848, at 12 o’clock, M.; and that this action was commenced and the writ served on the defendant after-wards, on the same day, at 4 o’clock, P. M. The court thereupon sustained the plaintiff’s objection, and excluded the defendant as a witness in the cause. The defendant, claiming that this decision was erroneous, moved for a new trial.

      Kimberly, in support of the motion,
    contended, That the defendant was a qualified witness, by virtue of the 141st section of the act relating to “ civil actions.” Stat. 86. It is there explicitly declared, that “ no person shall be disqualified as a witness, in any suit or proceeding in law or equity, by reason of his interest in the event of the same, as a party or otherwise.” This was the law of the state, when the cause was tried, at the term of the superior court, in January, 1849 ; the revised statutes having taken effect on the 1st of January, 1849. Stat. 627. § 1. 5.
    This result is inevitable, unless it is avoided, by virtue of the 2nd section of the act of 1848, the first section of which act contains the precise provision just quoted from the revised statutes. The second section of the act of 1848, referred to, provides, that nothing contained in that act shall affect any suit then pending. This part of the case, then, turns on the question, whether this suit was pending, at the time referred to in the act of 1848; and this involves two enquir-ies ; first, when did that time occur; and secondly, was this suit then pending.
    The counsel for the defendant insisted, first, that the expression, “ now pending,” referred to the time when the act was signed by the governor, which was on the 24th of June.
      The law was then complete. This was the “ now'’ intended, and not a future time. But secondly, if this expression referred to the rising of the General Assembly, that event took place before the commencement of this suit. The former was at noon, on the 28th of June; the latter, at 4 o'clock in the afternoon of that day. Thirdly, it was competent for the defendant to shew, by parol evidence or otherwise, the time of day when these events respectively occurred. The maxim that there is no fraction of a day, is a mere fiction of law, which always yields to the matter of fact, where justice between the parties requires it. Roe d. Wrangham v. Hersey, 3 Wils. 274. In re Richardson, 6 Law Rep. 396. Brainerd v. Bushnell, 11 Conn. R. 24. Williams v. Cheesebrough, 4 Conn. R. 356. Cutler v. Wadsworth, 7 Conn. R. 6. In re Welman, 7 Law Rep. 25. In the service of writs especially, it is the constant and universal practice to enquire in what part of the day-the hour and minute, if necessary-the service was made.

      C. A. Ingersoll, contra,
    contended, 1. That the time referred to, in the 2nd section or proviso of the act of 1848, is the time when that act took effect-that is, the rising of the General Assembly, (Stat. 413. § 5.) which was on the 28th of June.

    2. That as this suit was commenced on the same 28th of June, it was pending at the rising of the General Assembly. This position depends upon the meaning of the words, “ from the rising of the General Assembly:" and this is to be determined by the record, and not by oral testimony. What then does the record say? It says, that the act was passed at the session of the General Assembly in 1848; and that the rising of the General Assembly took place on the 28th day of June of that year-not at any particular hour of that day. As the record says, that the rising of the General Assembly was on the 28th of June, without designating any particular time of the day, and as the act takes effect from the rising of the General Assembly, it takes effect from and after the 28th day of June, and not before. The legislature, in using the language from an act done, use it as meaning the same as from the day of an act done. done.

      It is not a legitimate subject of enquiry, at what particular part of the day an act of the legislature was completed. From the opening of the session, on a day specified, to its close, is one day-not to be divided. [The counsel here referred to the last day of the last session of Congress, which in fact continued from 10 o’clock, A. M. of the 3rd of March, to 7 A. M. of the 4th of March ; and important bills were passed and appointments made, after 12 o’clock of the intervening night; and yet the record stated all these transactions as of the 3rd of March, the validity of which has never been questioned.] The law knows no fraction of a day. When a computation is to be made after an act done, the day of doing the act is to be excluded. Chitt. Cont. 730. Lester v. Garland, 15 Ves. 248. Avery v. Stewart, 2 Conn. R. 69. Bigelow v. Wilson, 1 Pick. 485. Pellew v. Wonford, B & Cress. 134. (17 E. C. L. 343.) Sands v. Lyon, 18 Conn. R. 18.
    The law of 1848 was not to take effect until after an act done. That act to be done was the rising of the General Assembly, which took place on the 28th of June. Consequently, the law in question did not take effect until after the 28th of June; and as this suit was commenced on that day, it was pending when such act took effect. Of course, the case was within the proviso, and the defendant had no right to testify.
    3. That the question as to the admissibility of the defendant as a witness, was not controuled, by any provision in the book called the "Revised Statutes,” but was governed exclusively, by the act of 1848, so often referred to. It is claimed by the defendant, that the last-mentioned act was repealed by the act, entitled “An Act to carry into effect the revised statutes;" (Stat. 627. § 2.) that by the 141st and 143rd sections of the revised act for the regulation of civil actions, (Stat. 86.) the provisions of the act of 1848 were reenacted, with no other restriction than that they should not affect any suit pending on the 27th of June, 1848; and that by virtue of the 1st section of the former act, all the provisions in the book became, on the 1st of January, 1849, the statute laws of the state. Stat. 627. § 1. To this we have a plain and simple answer. It is this-the General Assembly of this state never did, at its session in 1848, or at any other time, make the enactment contained in the 141st and 143rd sections above referred to; and of this fact the court will judicially take notice. Further, what purports to be a law of the General Assembly of the year 1848, entitled “An Act to carry into effect the revised statutes,” never was passed by the General Assembly, and never received the sanction of the legislature; and of this also the court will judicially take notice. This being so, it is of little consequence to enquire how the interpolated provisions became incorporated in the revised statutes, as published. If it is claimed, that the committee made the alteration in the aforesaid act of 1848, and, in the name of the General Assembly, enacted what purports to be a law, found on the 627th page of the printed volume, labelled "Revised Statutes of Connecticut, 1849,” then we say, that the committee, either singly or combined, had no right, in the name of the General Assembly, to make statute laws to govern the people of this state, or to affect their legal rights; and this for two reasons. First, the General Assembly never attempted to authorise them to do so; and secondly, if it had, such authority would have been void. [The counsel then proceeded to fortify his position, and to answer objections.]
   Storrs, J.

The question first presented in this case, is, whether the volume termed “ The Revised Statutes of the State of Connecticut,” published during the present year, under the superintendence of the committee of revision, appointed by the General Assembly for that purpose in 1847, is to be deemed to contain all the public statute laws which were in force in this state, when the present action was tried. If this question is resolved in the affirmative, it is conceded, that the court below erred in excluding the defendant as a witness; since by the 141st section of the act contained in those statutes, entitled “An Act for the regulation of civil actions,” it is provided, that “no person shall be disqualified as a witness, in any suit or proceeding at law or in equity, by reason of his interest in the event of the same, as a party or otherwise;” and there is no saving or excepting clause in that act other than that contained in the 143rd section, which applies only to suits pending on the 27th day of June, 1848, which was the day next preceding that on which this suit was commenced.

The validity of this body of Revised Statutes, as thus published, depends on the effect which is to be given to that part of the act, "relating to the Revised Statutes,” passed in 1848, which provides for the mode of authenticating the statutes revised and compiled by said committee, Sess. Laws of 1848, ch. 80. p. 70.

The committee appointed in 1847, to revise the public statute laws of the state then in force, having completed said revision, reported the same to the legislature at its session in 1848, which, after having been referred to the joint select committee on the subject of that revision, was then approved by the act last above-mentioned; and it was further enacted, by the 2nd section of that act, that the said revised acts so approved, and the acts passed at the then present session, when incorporated with the said revised acts, should constitute “The Revised Statutes of the State of Connecticut;" and the same were “thereby enacted and confirmed as such;" and by the 3rd section, all public statute laws, other than the said acts revised and approved, and the acts passed at said session of 1848, and other than acts of incorporation, confirming statutes and acts, which, although public acts in form, are of a merely private nature, were repealed. In the 5th section, it is provided, that said acts and the said revised statutes shall go into effect on the 1st day of January, 1849, and not before.

The act in the revised statutes, which has been mentioned, removing the common law disability of parties as witnesses, was first enacted in 1848; and, as it was originally passed, contained no special limitation as to the time when it should go into operation; and therefore, by the general law on that subject, took effect from and after the rising of the General Assembly of 1848, by which it was passed; which, it is conceded, took place on the 28th day of June of that year, the day on which the present suit was commenced. Sess. Laws of 1848, ch. 44. p. 38. That act did not constitute a part of the statute laws which were to be revised by the revising committee, since the acts to be revised by them consisted only of the statutes which were in force previous to the session of the legislature of that year; but by the act, “relating to the revised statutes,” passed in 1848, that act, together with the other statutes enacted that year, were to be incorporated with said revised acts, and they were together to constitute the said revised statutes of the state. We find, however, in the volume of revised statutes as published, that in connexion with the provision in the 141st section of the act for the regulation of civil actions, (that parties in suits shall be admissible as witnesses,) there is a further provision in the 143rd section of the same act, that the said provision in the 141st section shall not affect any suit pending on the 27th day of June, 1848. without any other limitation.

The difference, therefore, between the provision respecting the competency of parties as witnesses, as it was originally passed, and as it now stands in the revised code, is, that by the former, it took effect on the 28th day of June, 1848, the day of the commencement of this suit, and therefore raises the question, whether it applied to a suit commenced on that day; whereas by the latter, it clearly applies to this suit, which was brought after the 27th day of June, 1848, and therefore rendered the defendant a competent witness. The question is, whether the act, as it was originally passed, or as it is now found in the revised code, is to be considered the law on this subject when this action was tried in the superior court. The defendant claims, that the certificate of the secretary, annexed to the revised statutes, furnishes evidence which must be deemed conclusive of the existence and validity of the laws as they are contained in those statutes. The plaintiff insists, that that certificate is not thus conclusive, but that we may look behind it, into the proceedings of the committee of revision; that by doing so, it appealr, that they exceeded the powers conferred on them, in inserting a provision in the published revised statutes, limiting the provision therein, respecting the competency of parties as witnesses, to suits pending on the 27th day of June, 1848; and that the question as to the effect of that provision in the revised statutes, is to be determined, as if it was therein declared, that it should take effect on the rising of the legislature of 1848, when it took effect, by the act containing it, as originally passed. And on the supposition that the claim of the plaintiff in this particular is valid, he further claims, that, on the facts conceded in this case, the principles of law in regard to the construction of statutes, warranted the court below in excluding the defendant as a witness.

We think that the effect of the act relating to the revised statutes, passed in 1848, was, to continue in force until the 1st day of January, 1849, all of the public statute laws which were in force at the time of the passage of that act, and not repealed at the session at which it was passed, and also the acts passed at that session; and from the 1st day of January, 1849, inclusive, to constitute the acts therein mentioned, which had been revised by the revising committee, together with the acts passed at the session of 1848, when the latter should be incorporated with said revised acts, the public statute laws, and (with the exceptions and qualifications contained in the 3rd section, which have no application to the question now before us,) the only public statute laws of this state, by the name of "The Revised Statute Laws of the state of Connecticut," and to enact and confirm them as

But the legislature further deemed it expedient to prescribe a simple, convenient and certain mode for ascertaining what particular statutes constituted the revised code. The several acts revised by the committee, and which, together with those passed in 1848, were to compose this code, were, by the said act relating to the revised statutes, approved, enacted and established, as the Revised Statutes, only by a reference to them as "the several acts revised by the committee appointed by the General Assembly, at its last session, to revise the statute laws of the state, referred to the joint select committee on the revision of the statutes, and by them reported to this Assembly." Although it would indeed be practicable, by an examination of the journals and files of the two branches of the legislature, to ascertain which those revised acts are, it would, in most cases, be exceedingly inconvenient, and in some, very difficult, to do so, from a want of access to these sources of information. The legislature, therefore, made provision for the publication of the said revised code, and by the 4th section of said act, provided, that one copy thereof should be deposited and forever kept in the office of the secretary of state; that the secretary of state should annex a certificate thereto, under his hand and the seal of the state, that the laws therein contained are the statute laws of the state; and that such certified copy should be an authentic record of said laws. A copy of the published volume containing those laws has been: deposited in the office of the secretary of state, who has annexed thereto a certificate, such as is thus required.

That it is competent for the legislature to prescribe what shall constitute a record of their proceedings, the manner in which it shall be made, and the effect thereof, admits of no question. And it is equally clear, that when they have prescribed what shall constitute a record, although they have not expressly declared what shall be its effect, it has, and is to be treated, to all intents and purposes, as having the effect which is attached to all records, as to its constituting evidence of what is stated in it. When, therefore, the legislature constituted such certified copy an authentic record of the statute laws of the state, it has the same force and effect as if it were in truth a portion of the original records of the proceedings of that body. As such, it imports absolute verity; is, in itself, conclusive evidence of what it states; and is therefore entitled to implicit credit. Hence it follows, that its existence as a record being conceded, it can neither be contradicted nor varied as to any of the facts of which it professes to be the memorial; and that no evidence is admissible, because it would be unavailing, for that purpose. And it being a record of the statutes of the state, courts are bound judicially to take notice of these statutes; not because it is the prerogative of courts arbitrarily to determine what are the public statutes of the state, nor because they are required or supposed to have a knowledge of those laws without any evidence of them, but because they have the means and it is their duty to make themselves acquainted with the records of the legislature, which are in their nature not only conclusive evidence, but the only original evidence of those laws.

From these principles, it results, that we are bound to consider the copy of the published statutes, thus certified by the secretary, as containing the veritable and only statute laws of the state, when the present action was tried; and that therefore, it is not competent for us, in this suit and in this mode, to permit any enquiry as to the propriety of the course taken by the committee of revision, or the secretary of state, respecting the publication or authentication of those statutes. Whether there is any other mode, by which any errors, which they may have committed in the discharge of these duties, can be corrected, by the judicial tribunals of the state, is a question which it is not necessary now to determine. It is sufficient to say, that until the records of the state, as they now stand, are legally and regularly obliterated or corrected, they must receive implicit faith and credit. If there be any legal remedy in those tribunals, it is not by collaterally impeaching their validity, in the mode here attempted, but would probably be, by some direct and specific proceeding, more appropriate to that purpose. As to the existence or nature of any such remedy, however, we would intimate no opinion.

The argument in favour of examining the doings of the revisers, for the purpose of deciding on the validity of their proceedings, in embodying the statutes revised by them and approved by the legislature, with the acts of 1848, drawn from the consequences to the public and to individuals, which may result from errors committed by them, if they cannot be corrected in the mode here attempted by the plaintiff, is certainly very imposing in its character; but it is, when scrutinized, only the same which would apply in all other cases, where it is claimed collaterally, that facts are erroneously stated in a record. The law presumes conclusively, that it speaks the truth ; and public policy forbids, that it should be open to contradiction, unless in a proceeding properly instituted for the specific purpose of correcting it.

The conclusion to which we have come as to the effect of the authentication of the published revised statutes, renders it unnecessary to determine the other questions which have been argued in the case. The result is, that as, by the revised statutes, there is no limitation as to the provision of the statute which has been mentioned making parties to suits competent witnesses, excepting as to suits pending on the 27th day of June, 1848, which was the day previous to the commencement of this suit, the defendant should have been permitted to testify ; and therefore a new trial is advised.

In this opinion, Church, Ch. J., and Ellsworth, J., fully concurred.

Waite and Hinman, Js., were also of opinion that a new trial should be granted, but did not fully concur with the other judges as to the effect produced by the revised statutes upon the law passed by the legislature in 1848. They inclined to the opinion that the revising committee had no power to alter or change that law ; and that notwithstanding the revised statutes, they were not authorized to say, that the statute of 1848 did not still remain in force.

New trial to be granted.


source: Caselaw Access Project

author: Waite, J.

license: Public Domain

text:
    The East-Haddam Bank agaïnst Shailor and others.
    Where A and B, representing to D, that they were under an engagement, jointly with C, to furnish a large quantity of stone to E, applied to D to lend moneys to them in aid of that engagement, which D agreed to do, taking, as security for the moneys so to be advanced, the promissory notes of E. payable to C, and indorsed by A, B and C; D accordingly advanced moneys on such notes, supposing, from the conduct and declarations of A, B and C, that they were all jointly interested in the contract to furnish stone to E, and in the moneys advanced in aid thereof, though C was in fact only the agent of A and B, in this business; in an action brought by D against A B and C, for the amount of the notes, declaring specially on the indorsement, with the money counts added, A and C did not object to a judgment against all, but this was resisted by B; it was held, 1. that B, having united in the representations, upon the faith of which, D advanced the moneys, was estopped to claim that the defendants were not all so interested ; 2, that the consent of C obviated the objection of his want of interest; 3. that the plaintiff was entitled to recover against all the defendants, either on the special counts, as against joint indorsers, or on the count for money had and received, that form of action being appropriate to the case.
    This was an action of assumpsit against Thomas Shailor, Thomas Shailor, jun., and Daniel Ventris, as joint indorsers of three promissory notes, all made by John Elwell, payable to Thomas Shailor, jun., or order, and indorsed by the defendants. One of the notes, dated August 18th, 1839, was for the sum of 480 dollars, payable in seventy-five days; another, dated August 22d, 1839, for 615 dollars, payable in two months ; and a third, dated September 18th, 1839, for 666 dollars, 57 cents, payable also in two months.
    Middlesex,
    July, 1849.
    The declaration contained a special count upon each note, and the common money counts. The action was commenced December 13th, 1839.
    The cause came on for trial before the superior court, at Middletown, February term, 1849; when the court found the following facts, and reserved the case for the advice of this court.

      Thomas Shailor, the elder, and Daniel Ventris, in the fall of the year 1838, representing themselves to be under an engagement jointly with Thomas Shailor, jun., to furnish a large quantity of stone to Elwell, applied to the plaintiffs, to lend moneys to all the defendants, from time to time, as they might need, in aid of that agreement; to which request the plaintiffs assented. And it was arranged, that as security for the money to be so advanced, they were to receive the notes of Elwell, indorsed by the defendants. In pursuance of this arrangement, the plaintiffs, supposing from the conduct and declarations of the defendants, that they were jointly interested in the contract to furnish stone to Elwell, and in the moneys procured in aid thereof, did advance, from time to time, divers sums of money on notes signed by El-well, and indorsed by the defendants, among which were the three notes in question. But the court further found, that Thomas Shailor, jun., resided in the city of New-York, and was in fact, only the agent of the other two defendants, to receive the stone furnished by them, and deliver it to Elwell; that he received the notes of Elwell, payable to himself, or order, which he indorsed, and transmitted to the other defendants, who also indorsed them ; and he had no interest therein, except for commissions and disbursements.
    The Shailors did not object to a judgment against all the defendants ; but Ventris claimed, that no judgment could be rendered against him.
    At the commencement of the trial, the plaintiffs exhibited a bill of particulars, stating the amount advanced on each note.

      McCurdy and Bulhley, for the plaintiffs,
    contended, That they were entitled to judgment against all the defendants. In support of this proposition, they insisted, 1. That a recovery might be had, on special counts, against all the defendants, as joint indorsers. Finch v. DeForest, 16 Conn. R. 445.

      2. That the defendants were all liable, under the common counts. They were so liable, first, as joint borrowers of the money, as stated in the bill of particulars. The time of credit had expired ; they were all fixed as indorsers ; and no duty remained but the payment of the money. Fitch v. Bogue, 19 Conn. R. 285. 291. Eagle Bank v. Smith, 5 Conn. R. 71. Bill v. Porter, 9 Conn. R. 30. Porter v. Talcott, 1 Cowen. 359. Secondly, they were estopped, by their representations to the plaintiffs, inducing them to make the loan, to deny their joint liability. Brown v. Wheeler, 17 Conn. R. 345., and other cases. Thirdly, the action for money had and received is a form of action appropriate to a case like this. Fourthly, the giving of Elwell’s notes was no extinguishment of their indebtedness, and no obstacle to a recovery on the money counts. Sto. Prom. Notes, 107. 478. 533. Hinsdale v Eells, 3 Conn. R. 377. 385. Eagle Bank v. Smith, 5 Conn. R. 71. Bill v. Porter, 9 Conn. R. 23. Raymond v. Merchant, 3 Cowen, 147. On the contrary, it is well settled, that an indorsee may recover against an indorser, on the money counts. See, besides the cases above cited, Ellsworth v. Brewster, 11 Pick. 316. Hodges v. Holland, admx., 16 Pick. 395. State Bank v. Hurd, 12 Mass. R. 172. 3 U. S. Dig. 304.
    3. That if a recovery cannot be had against T. Shailor, jun., it may still be had against the other defendants. Stat. 88. § 150. There is no exception in this statute of suits pending. And as it affects the plaintiff’s remedy only, it is not objectionable as being retrospective in its operation. It merely regulates a matter of pleading. But if it were otherwise, its retrospective operation would not invalidate it. Goshen v. Stonington, 4 Conn. R. 209. and other cases of that class.

      Baldwin and Clark, for the defendants,
    contended, That the plaintiffs were not entitled to judgment. They insisted, 1. That there could be no recovery on the special counts. The defendants are sued as joint indorsers of three several promissory notes. The notes show, that the defendants are several indorsers, or, at the utmost, that two of them only are joint indorsers. 1 Chitt. Plead. 31. & seq.
    2.That the objection to a recovery on the general counts, is equally decisive. The notes were not received as collateral security for moneys lent, but were discounted, and uniformly treated by the plaintiffs as discounted notes; and the moneys claimed in the bill of particulars, are the avails of these notes. Hence, the notes are, in effect, the only evidence produced in support of the general counts. Thomas Similor, jun., was not a joint contractor with the other defendants, but simply their agent; and consequently, there is no privity of contract between the parties. 2 Stark. Ev. 305. 306. 2 Greenl. Ev. 98.
    3.That the conclusion is not varied, by the admissions of Thomas Similor, for himself and Thomas Shailor, jun. The plaintiffs have all the security, for which they originally stipulated ; and, by adopting proper proceedings, they have a perfect remedy against all the defendants. No testimony is necessary to enhance the obligation of the defendants, in appropriate actions against them, or to revive the liability of a co-defendant. The fact of a joint interest is the very point in dispute; and the admission of a co-defendant on such a point, operates only against himself. 1 Greenl. Ev. 229.
    4.That the act of June 22d, 1848, (Stat. 88.) does not aid the plaintiffs. It was passed several years after the commencement of the present action. It is not explicitly retrospective ; and it does not appear, from the terms of it, or in any other manner, that it was intended to have a retrospective effect. The court, therefore, will not give it such an effect by implication. Goshen v. Stonington, 4 Conn. R. 209. Thames Manufacturing Co. v. Lathrop & al., 7 Conn. R. 550. Perkins v. Perkins, 7 Conn. R. 558. Brewster v. McCall’s devisees, 15 Conn. R. 290. Bridgeport v. Housatonic Rail-road Co., 15 Conn. R. 496. & seq.
   Waite, J.

The rule of law, founded upon the soundest principles of morality, is, that where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter, a different state of things as existing at the same time. Pickard v. Sears & al., of Adol. & Ell. 469. 33 E. C. L. 115.) Brown v. Wheeler, 17 Conn. R. 353. Kinney v. Carnsworth, 17 Conn. R. 361. Roe. v. Jerome, 18 Conn. R. 153. 163.

Ventris and Shailor, the elder, having represented to the plaintiffs, that they and Shailor, the younger, were jointly interested in the contract with Elwell, and in the moneys loaned by the plaintiffs in aid of such contract, and thereby having obtained the plaintiffs’ moneys, are now estopped from saying, that the defendants were not so interested. The plaintiffs having acted upon the faith of such representations, have a right to treat them as jointly indebted with the other defendants.

Not so with Shailor, the younger. He was no party to these representations ; and of course, is not estopped by them. But he consents that judgment may be rendered against him jointly with the others. Such judgment, therefore, may properly be rendered, on the ground that one consents to be treated as a joint debtor, and the others are estopped from showing that they are not such.

We see no objection to the form of the declaration. The plaintiffs, in the special counts, allege, that the notes were made by Elwell, payable to Thomas Shailor, jun., and indorsed by him and the other defendants. According to the representations made to the plaintiffs, they had a right to treat the notes of Elwell, as the joint property of the defendants, and their indorsements as joint, and not several.

And then as to the common counts. The court has found, that the moneys of the plaintiffs were loaned, and the notes of Elwell taken as security. The count for money had and received is manifestly appropriate. We therefore advise the superior court to render judgment against all the defendants, for the amount of the plaintiffs’ demand.

In this opinion the other Judges concurred.

Judgment for the plaintiffs against all the defendants.


author: HINMAN, J.

text:
    Kirtland against Snow and another.

      Middlesex,

    July, 1849.
    A creditor may purchase his debtor’s property, in payment of his debt, as safely as he can take it by legal process; although the effect of the transaction is to place the property beyond the reach of other creditors.
    There must be a real or substantial change in the possession of such property; and where a creditor neglects to take and retain possession of the purchased property, it is conclusive evidence of such a trust as to render the transaction fraudulent and void, as to other creditors.
    The rule of law requiring the vendee to take and retain possession of property, in order to protect it from the vendor’s creditors, is a rule of policy, as well as of evidence ; its object being to prevent fraud, by taking away the temptation to commit it.

      B, the wife of A, was the owner of a farm, which was occupied by C, as her tenant. C, being indebted to B and to D, an agreement was made between the three, that C should sell to D the farming utensils, &c., owned and used by him on the farm, in payment of D's debt, and in part payment of thedebt of B ; that B should immediately purchase of D, the property, at the same price as in the sale to D. and place it back upon the farm; that C should cease to be tenant of the farm for his own use, and should thereafter work on the farm, with the property, as the hired man of B; but that C might still continue to use and controul the property, with the design of keeping it from the attachments of other creditors, for his use. The arrangement was effected, and the property replaced upon the farm, where C continued to use and controul it as before. E, another of C's creditors, thereupon attached it, as the property of C. On a suit brought against E, by A, for taking the same, it was held, that the transaction was fraudulent and void, and that A could not recover.
    The case of Talcott v. Wilcox, 9 Conn. R. 134. considered.
    This was an action of trespass de bonis asportatis, with a count in trover for the same cause of action ; brought by John Kirtland against Charles W. Snow and Samuel Colt.

    On the trial of this cause, at the August term of the superior court, 1848, the following facts were found, the issue being closed to the court.

      Snow had taken the property in question, by virtue of legal process in favour of Colt, against one Wilson Beckwith. The property consisted of oxen and farming utensils, which were used by Beckwith, on a farm belonging to the wife of the plaintiff. This farm had been purchased by her, after their intermarriage, with money and property belonging to her before marriage, and secured to her by an ante-nuptial agreement. She had the controul of the farm after the purchase, with her husband’s knowledge and consent; and of her money and other property, in like manner. Beckwith was her nephew, and as tenant of the farm, occupied it for his own use and benefit, and used the property in question, which had belonged to him solely, in the early part of his tenancy. In June, 1847, Beckwith, being indebted to her, and also to one Leonard Lamphear, his brother-in-law, it was agreed by all three, that the property should be sold to Lamphear, for two hundred dollars, to be applied in payment of his debt, and in payment of Mrs. Kirtland's debt; that she should take the property of Lamphear, at the same price, give her note for it to him, the balance of the two hundred dollars, after canceling Lamphear’s claim, being applied in part satisfaction of Beckwith’s debt to her; that Beckwith should cease to be tenant of the farm for his own use, but should work thereon as the hired man of Mrs. Kirtland, at day wages, use the property in question on the farm, and account to her for the same ; and to this intent, a written agreement was executed between her and Beckwith. It was an express design in the transaction, that Beckwith might, notwithstanding the sale, still continue to use and controul the property, and that the same should be kept from the attachments, &c., of his creditors, for his own use. Mrs. Kirtland received the property from Lamphear, according to the arrangement; and immediately replaced it upon the farm, where it was attached by the defendants. She executed her own note to Lamphear, without the knowledge of her husband; and without any other authority from him, than such as might be inferred from the ante-nuptual agreement, and from his knowledge that she controuled her farm, and managed her money affairs, without his interference.
    The court also found, that Beckwith continued to reside with his family on the farm ; to work and labour thereon ; and to use the property, in the same manner as before the agreement and sale were made. He offered to sell a part of the same; and there was no proof that he ever accounted for the use of the property, or received his day wages, as a hired man. The property was taken by the defendants, while in the use and possession of Beckwith, upon the farm ; the process and service being legal in all respects.
    Upon these facts, the case was reserved for the advise of this court, as to what judgment ought to be rendered.

      McCurdy, (with whom was Wright,) for the plaintiff,
    contended, 1. That no fraud or fact appearing in the case, but the transaction being proved to be bona fide, no fraud in law can be implied, from the purchaser's leaving the stock, &c., on his own farm, in charge of the former owner, who was now his hired man. Talcott v. Wilcox & al., 9 Conn. R. 134. Lewis v. Whittemore, 5 N. Hamp. 364. 2 Sup. U. S. Dig. 46.
    2. That, the husband, the plaintiff in this case, was the owner in law, notwithstanding the ante-nuptial agreement. Dibble v. Hutton, 1 Day, 221. Whittlesey v. McMahon & al., 10 Conn. R. 137. Fourth Ecclesiastical Society in Mid-dletown v. Mather, 15 Conn. R. 587. Baldwin v. Carter, 17 Conn. R. 201. The wife was the agent of her husband; and he is bound by her agreement to pay for the property. 1 Sw. Dig. 31, 2. Rotch v. Miles, 2 Conn. R. 638. Benjamin v. Benjamin, 15 Conn. R. 347. His assent is inferred from the facts stated in the case ; and also from his bringing the suit.
    3. That the sale by Beckwith to Lamphear having been bona fide, and the avails having been applied in payment of his just debts, it is immaterial whether Lamphear receives the pay from his vendee or not. Beckwith’s creditors cannot complain. The contract of hiring having been bona fide, it is also immaterial, whether Beckwith and Kirtland have settled their accounts, or not, at the time of trial.

      Ingham, for the defendants,
    contended, 1. That the plaintiff cannot sustain his action ; for he had neither title nor possession. The contract of his wife was utterly void, and no title was acquired thereby. She could not contract in her own right; nor could she in right of her husband, without his authority, expressed or implied. 1 Sw. Dig. 31, 6. Clancy, 1. 23. 1 Bla. Com. 422., & note 48. on p. 443. Marshall v. Rutton, 8 Term R. 546. Morgan v. Thames Bank, 14 Conn. R. 102. Benjamin v. Benjamin, 15 Conn. R. 357. Winton v. Barnum, 19 Conn. R. 171. Nor did she contract, or profess to contract, in behalf of her husband ; nor with his assent, expressed or implied. He was to have no interest in, or use of, the property. There was no subsequent ratification of the contract, on his part. On the contrary, any right in him to assent, is excluded, by the ante-nuptial agreement; which instrument is important, as showing intention of the parties. He interfered in no way with the management of his wife’s property, after the marriage.
    2. That the pretended contract comes within the provisions of the statute of frauds, and is therefore void. Rev. Stat. p. 406. Chitt. Cont. 314, 5. 2 Saund. Pl. & Ev. 536. 539. 2 Kent’s Com. 388. & seq. Egerton v. Mathews & al., 6 East 308. in notis. How v. Palmer, 3 B. & Ald. 321. Hanson & al. v. Armitage, 5 B. & Ald. 557. The contract was not made by the plaintiff, or his agent; nor was the delivery to him, or his agent. He neither purchased, accepted, possessed, or claimed it; nor did he give anything in earnest to bind the bargain. No single requirement of the statute was complied with.
    3. That the pretended purchase of the property by Mrs. Kirtland, was fraudulent and void, as to creditors. Its object was to secure to Beckwith, notwithstanding the pretended sale, the right to continue in the use and controul of of the property, and to keep the same from the attachments of his creditors, for his use. And all the stipulations of the contract, were designed to effect this object,-to cover the property in her hands, in trust for the use of Beckwith. This is, of itself, a fraud of the most fatal character. Rev. Stat. 407., s. 1. 1 Sw. Dig. 266. 274. 3 Com. Dig. tit. Covin, B. 2. Roberts on Frauds, 546. 549. 554. 1 Shep. Touch. 65, 6. Naylor & al. v. Fosdick, 4 Day, 146. Beers & al. v. Botsford, 13 Conn. R. 153, 4. Beckwith continued in the visible possession and use of the farm, after the pretended sale of the property. It was immediately placed back upon the farm, by Mrs. Kirtland, according to their agreement, that Beckwith might continue to use and controul the same-where it was to be kept from the attachments of creditors for his use-and where it was, by her act, "in his possession and use, when it was attached." This circumstance is conclusive evidence of fraud. Mills v. Camp & al. 14 Conn. R. 219. Carter & al. v. Watkins, Id. 240. Osborne v. Tuller & al., id. 530. Crouch v. Carrier & al., 16, Conn. R. 505.
   HINMAN, J.

The questions in this case arise upon facts found by the court. [He then stated the facts concisely, and proceeded thus-]

As it was lawful for Beckwith to prefer one or more of his creditors, so it was lawful for Lamphear and Mrs. Kirtland to obtain payment or security for their debts, by an appropriation of their debtor’s property for that purpose. It was no objection to this, that such appropriation might deprive other creditors of their means of enforcing payment. There is no more objection to a creditor’s purchasing his debtor’s property, and applying it in payment, than there is in securing himself by legal process. The fact, therefore, that the effect of this transaction was to put the property beyond the reach of other creditors, is, of itself, of no importance. But, although a creditor may purchase his debtor’s property in payment, regardless of the effect upon other creditors ; still, he has no more right to use his debt as a colourable consideration, to enable a debtor to withhold his property from his creditors, and retain it for his own use, than he has to purchase and pay for property, with the fraudulent design of defeating creditors. Had Mrs. Kirtland, at the time she made this purchase, taken possession of the property, and retained it afterwards, we should have had difficulty in saying that the transaction was fraudulent. The circuity practised, of passing the title to Lamphear, and through him to Mrs. Kirtland, would have been a circumstance proper for the consideration of a jury ; but we could not have said, that it conclusively proved a colourable or fraudulent transaction. The want of any real or substantial change in the possession of the property, after the sale, is of a different character. Where this difficulty exists, there, as a matter of strict law, the transaction is fraudulent; or, rather, the neglect of the purchaser to take and retain possession of his purchased property, is conclusive evidence of such a trust as renders the transaction fraudulent and void. What, then, is the fact in regard to any real or substantial change in the possession of this property, after the sale?

It is found, that it was one object of the parties to this sale, to pay or secure Lamphear and Mrs. Kirtland: in this, as we have seen, there was nothing improper. Another object was, to so do this, that the property should be kept from Beckwith'’s other creditors. This, though not a very laudable object in itself, yet, connected with the fact that these persons really had bona fide debts, which they had a right to secure, amounts to no more, perhaps, than that they intended to secure their own debts in preference to those of others ; and, if so, then this was lawful. But they had still a further object; they intended that this should be so done, as that Beckwith should continue to use and controul the property, in the same manner as he did before the sale; and it is expressly found, that he did use the property on said farm, in the same manner as before the agreement was made; and that he offered to sell a part of it. This, we think, shows the whole transaction to have been colourable only, and not real. The mala fides upon which the case turns, is the trust, which entered into the sale, for the benefit of the vendor ;- that he should continue to use and controul the property, in the same manner as he did before the sale. This trust was, in this case, openly expressed by the parties ;-it was also proved, by the fact, that Beckwith did retain possession of the property, after the sale. It is to-be observed, that the question is not, whether the transaction was honest or otherwise ; but whether there is not that evidence of fraudulent intent, which precludes enquiry into its integrity, as a question of morals.

This court has repeatedly said, that the rule of law which requires the vendee of personal property to take and retain the possession of it, in order to protect it from the vendor’s creditors, is a rule of policy, as well as of evidence; its object being to prevent fraud, by taking away the temptation to commit it. The doctrine has been so fully and clearly expressed, in the case of Mills v. Camp & al., 14 Conn. R. 219., and the three or four cases which have since arisen, especially the case of Osborne v. Tuller & al. in the same volume, that we believe no one would have supposed this transaction capable of being supported, had it not been for a former decision which is thought to sanction it. The rule is founded upon the presumption, that a purchaser will naturally perfect his purchase, by taking possession. The enjoyment of the thing purchased, is generally, if not always, the object a purchaser has in view : and his neglect to take possession, is, therefore, so unusual and contrary to general experience, as to be very strong evidence, that the purchase was only colourable, and not real. And, the reason of extending it from a mere rule of evidence, calling it a badge of-fraud only, and arbitrarily declaring, as matter of law, that it renders the sale void, as to creditors, notwithstanding the highest evidence of the honesty of the sale, is, because it has been thought better to take away the temptation to prac-tise fraud, than to incur the danger arising from the facility with which testimony may be manufactured, to show that a sale was honest.

< It is claimed, however, that the facts in this case are so nearly identical with the facts in the case of Talcott v. Wilcox & al., 9 Conn. R. 134., that it is impossible to hold this conveyance fraudulent, without expressly overruling that decision. That the two cases are, in many respects, very similar, is not to be denied; still, we think they may be distinguished, and we are not disposed to extend, at all, the doctrine of that case, so far as it is supposed to form an exception to the general rule requiring a change of possession of personal property, in order to render a sale valid as against the creditors of the vendor. The question in that case was raised after verdict, on the ground that the verdict was contrary to the evidence, or against the evidence in the cause ; it could not therefore, be inferred, that the giving up of the controul of the farm, and the personal property with it, was only for the purpose of enabling the original owner to continue to use it, for his own use and benefit; but it could only be treated, as a real surrendery of the farm, for the use alone of Mrs. Talcott. Such is not the case here ; on the contrary, it is expressly found, that the object here was, that Beckwith should continue to use and controul the property, for his own use, in the same manner as before the sale. The court in that case felt bound to presume, that the jury drew every inference in favour of an actual change of possession, that the evidence before them would justify or authorize. Here, the finding is by the court; and it is not only, as above stated, that Beckwith should continue to use the property as before the sale ; but that he, in fact, did so continue to use it. in the former case, there was conflicting evidence, on the point of a change of possession. The plaintiff’s witness testified, that the controul of the farm, after the sale, was given up to the vendee ; and, although the original owner remained there, yet, that the vendee had upon the farm another man, hired and paid by her to take care of it, and of the property upon it; and that he did so, and the original owner took nothing from it, but by permission.

In the case under consideration, no such fact existed, or was claimed ; and this fact, of itself, if true, would justify the verdict in that case. If it were necessary, the two cases might, we think, be distinguished in other particulars; but enough has been said to show, that they are distinguishable in the important fact as to the change of possession after the sale. On the ground, that there was no such change of possession in this case, and that none such was intended, we advise the superior court, that the sale was void as to the defendants ; and, therefore, that judgment be rendered in their favour.

In this opinion the other Judges concurred.

Judgment for defendants.


text:
    Payne and another against Clark.
    In order to maintain an action of trespass qu. cl. fr,, the plaintiff must have been in possession of the land, when the injury complained of was committed ; a legal title in the plaintiff, without such possession, being insufficient.
    Where each of the parties in an action of trespass qu. cl. fr., claimed title to the locus in quo, when the acts complained of were done; and the defendant further claimed, that if the legal title was in the plaintiff, he, the defendant, having disseised the plaintiff, was then in the exclusive possession of the land; whereupon the court charged the jury, that if the plaintiff had been disseised and was not in possession, when the acts complained of were done, he could not maintain this action ; and then proceeded to say, that if the plaintiff had title to the land, at the time of the alleged trespasses, his having been previously disseised and dispossessed thereof, by the defendant, would not prevent his recovery in this action, provided he had, previous to such acts of trespass, regained and retaken possession, so that he was in possession at the time said acts of trespass were committed; that although asimple reentry upon the land would not revest the possession in him, yet if, as he claimed, be went upon the land in 1843, and, as owner thereof, retook the possession, and remained there for some two or three days, cutting and carrying away the wood and timber, keeping the defendant out of the possession and forbidding him from entering upon the same, such a retaking of possession would enable him to maintain this action for any act of trespass committed by the defendant, at any time thereafter ;-it was held. 1. that taking the whole charge together, it could not be considered as dispensing with possession by the plaintiff, at the time of the alleged trespasses; 2. that the charge was not to be construed as asserting, that the acts of the plaintiff in 1843, specified therein, constituted, as matter of law, a retaking of the possession by him; consequently, that, after a verdict for the plaintiff, a new trial ought not to be granted for a misdirection.
    Middlesex,
    July, 1849.
    This was an action of trespass quare clausum fregiy; tried on the general issue, at Middletown, February term, 1849.
    The plaintiffs claimed title to the locus in quo, under a deed from Richard Brown, dated December 15th, 1791, and sundry mesne conveyances from his grantees and those claiming under them, to the plaintiffs. They claimed to have proved, that in the winter of 1810, their father, who then claimed to be the owner of the land in question, entered thereon, and cut and removed the wood and timber from a portion thereof; and that in the winter of the succeeding year, after the death of their father, their brother, claiming title as his heir, also cut and removed the wood then growing on the same land; that in the year 1843, one of the plaintiffs went upon the land, in the winter season, and caused some wood and timber to be cut and removed therefrom, and was engaged in such cutting and removal for two or three days ; that during this time, he took down a portion of a fence then recently erected on the land by the defendant, and forbade his cutting thereon or removing therefrom, any wood or timber. The plaintiffs made no further claim to the possession of the land, except such as the law, upon these facts, would presume to attend the ownership thereof.
    It was admitted, by the defendant, that in the year 1846, he cut and removed wood and timber standing on the land.
    It appeared, that the land was five or six miles distant from the residence of the plaintiffs; that it had never been entirely enclosed until within the last six or seven years; that it is rough wood land, of no use, after the wood has been removed, until a new growth is fit for cutting ; and that it was within about a mile of the defendant’s residence, at a place called Governor’s Hill, most of the adjoining tracts being unenclosed.
    The defendant claimed title to the land, under an instrument signed by a committee of the town of Chatham, dated June, 26th, 1793, purporting to convey part of an old highway to Daniel Shepherd, jun., and sundry mesne conveyances to the defendant; that since the execution of said instrument, he and those under whom they claimed, had been in the actual occupation of said land as owners, claiming title thereto exclusively of all others ; that sometime prior to the entry of one of the plaintiffs thereon in 1843, the defendant had caused said land to be enclosed, by a good and substantial fence, in a common enclosure with other lands owned by him; that the several entries upon said land, as claimed by the plaintiffs, if any such were made, were trespasses ; and that when they entered thereon in 1843, the defendant forbade such entry.
    The defendant thereupon claimed, that whatever might be the effect of the several conveyances of the land, he had, by reason of his occupation thereof, under these circumstances, acquired an absolute title thereto, as owner. He further claimed, that he was in possession of the land, claiming to own it, when this suit was commenced, and when, and long before, the trespasses complained of were committed ; and that the plaintiffs, if they had shown a legal title to the land, could not, under these circumstances, sustain an action of trespass for the alleged injuries.
    The plaintiffs claimed, that if they had a legal title to the land, when the trespasses complained of were committed, and the defendant was in the actual possession of the land, at that time, before and since, claiming the exclusive title thereto as owner, and holding out all others, the action of trespass was a proper remedy for the injuries complained of-that title, under such circumstances, was sufficient to enable the plaintiffs to maintain their action.
    The court charged the jury as follows : That so far as the mere paper title of the parties respectively to the land in question was concerned, as the original deed under which the paintiffs claimed title was prior to the execution of the instrument under which the defendant claimed, it would prevail, as against that instrument, and showed title in the plaintiffs.
    In regard to the title of the defendant, as derived from the adverse possession of said land, and in regard to the right of the plaintiffs to maintain this action, if they had been dis-seised, and were not in possession at the time when said trespasses were claimed to have been committed, the court charged the jury in conformity to the defendant’s claims, except that the court told the jury, that if the plaintiffs had title to the land in question, at the time the trespasses complained of were committed, their having been previously disseised and dispossessed thereof, by the defendant, would not prevent their recovery in this action, provided they had, previous to such acts of trespass, regained and retaken possession, so that they were in possession at the time said trespasses were committed; that although a simple reentry upon said land would not revest the possession in them, yet if, as claimed by them, they went upon the land in 1843, and as owners thereof, retook the possession, and remained there, for some two or three days, cutting and carrying away the wood and timber, keeping the defendant out of the possession, and forbidding him from entering upon the same, as claimed by them, such a retaking of possession would enable them to maintain this action, for any act of trespass, committed by the defendant, at any time thereafter, (if within three years next previous to the commencement of this suit.)
    The plaintiffs obtained a verdict; and the defendant moved for a new trial for a misdirection.

      Bulkley and C. C. Tyler, in support of the motion,
    contended, 1. That the action of trespass qu, cl.fr., is adapted and intended to give the possessor a remedy for an injury to his possession ; and it cannot be maintained by one not in possession, when the wrong was done, though the lawful owner, there being an adverse possession in another. Wheeler v. Hotchkiss, 10 Conn. R. 225. Chatham v. Brainerd, 11 Conn. R. 60. Toby v. Read, 9 Conn. R. 216. 223. Cook v. Foster, 2 Gilman, 652. Congregational Society in Bakersfield v. Baker, 15 Verm. R. 119. Campbell v. Arnold, 1 Johns. R. 511. Stuyvesant v. Tompkins, 9 Johns. R. 61. S. C. in error, 11 Johns. R. 569. 571. Van Brunt
      v. Schenck, Id. 377. 385. Wickham v. Freeman, 12 Johns. R. 183. Taylor v. Townsend, 8 Mass. R. 411. 415. Allen v. Thayer, 17 Mass. R. 299. Shepard v. Pratt, 15 Pick. 32. Chadbourne v. Shaw, 22 Maine, (9 Shep.) 450. 3 Stark. Ev. 1435, 6. 1 Chitt. Plead. 162. The court should have charged the jury explicitly, that possession of the plaintiffs, when the trespasses were committed, was necessary to sustain the action ; and that their possession must have been actual and exclusive. Stocks v. Booth, 1 Term. R. 430.
    2. That by the charge to the jury, in this case, if the plaintiffs, having the legal title, went upon the land in 1843, and, as owners, retook the possession, and exercised acts of ownership there, keeping the defendant out of possession, this would enable them to maintain the action brought, for an injury to the land, done by the defendant, at any time thereafter-i. e., when the defendant was in the exclusive possession.

      Barnes, contra,
    contended, That the plaintiffs were entitled to retain their verdict. He remarked, 1. That the question of possession was fairly left to the jury, and they have decided it. The paper title of the plaintiffs is the elder and better title ; and the court will not send the cause to a new trial for the benefit of a disseisor and trespasser.
    2. That the defendant can not justly complain of the charge to the jury. It was made in conformity to his claim, with a single exception as to the existence and effect of a reentry; and the direction on this point was sufficiently fa-vourable to the defendant; for, it is supposed to be well settled,that a disseisee, without reentry, may sustain an action of trespass for the disseisin itself, and that, after reentry, he may sustain trespass for any intermediate injury to the freehold ; and the reason assigned is, that, by the reentry, he is restored to his possession ab initio. 4 Kent’s Com. 119. 2 Greenl. Ev. 577.
    Such seems to be the legal consequence of a simple reentry, and much more of one attended with the acts of ownership stated in the motion.
    3. That the case does not depend, like that of Wheeler v. Hotchkiss, 10 Conn. R. 225. on a mere right of entry. Besides, the land in controversy is wild land, and as such, on the authority of the case last cited, it is exempt from the general rule. If the decision in that case was designed to overrule the doctrine previously received in this state, it is worthy of remark, that in the subsequent case of Chatham v. Brainerd & al., 11 Conn. R. 60., the court hold, that in trespass quare clausum fregit, title in the plaintiff, or possession, is essential to a recovery.
   Storrs, J.

Each of the parties in this case claimed, on the trial, to have had title to the locus in quo, when the trespasses complained of were committed, through conveyances from the former owners, and the defendant also, by disseisin. The defendant further claimed, that if the legal title was in the plaintiffs, the defendant was then in the exclusive possession of the land, and therefore, that the plaintiffs could not maintain this action ; and he complains, that the court not only omitted to charge the jury, that possession in the plaintiffs was necessary, but, on the contrary, instructed them, that a legal title in them, without such possession, was sufficient to entitle them to recover. If this is the import of the charge, it was clearly erroneous, since no principle is better settled, than that the plaintiff must be in possession of the land, when the injury is committed, in order to maintain an action of trespass quare clausum fregit.

But we think, that the defendant has misconceived the true meaning of the charge, and that, on a just construction of it, it is not obnoxious to the objection which he makes to it. Considering the last clause of it as an isolated proposition, unconnected with what had before been stated, it would indeed literally import, that if the plaintiffs, being disseised of the land, retook the possession of it, they might maintain this action for a trespass committed thereafter, and at a time after they should have ceased to retain the possession. But, in order to ascertain the true import of the charge, it should be all taken together, since it consists of several propositions connected with and explaining each other. On the same rule of construction by which this last clause is made to express the principle that the plaintiffs could recover for a trespass committed after possession was thus retaken by them, although that possession had been divested before its commission, it might also be made to mean, that they could recover for it, even although their title, as well as their possession, had ceased when the trespass was committed; for the words, "at any time thereafter,” i. e., after such retaking of possession by the plaintiffs, are sufficiently broad and indefinite to reach to that extent. Yet no one would suppose, that such was the idea intended to be conveyed, when the previous parts of the charge, in connexion with which the last part of it was announced, are considered.

The motion shows, that the defendant claimed, that he was in possession of the land, disseising the plaintiffs, when the trespasses complained of were committed; and that, under those circumstances, the plaintiffs could not recover for those trespasses, even if they had proved that they then had a legal title to the land ; and that, “in regard to the right of the plaintiffs to maintain this action, if they had been dis-seised, and were not in possession at the time when said trespasses were claimed to have been committed, the court charged the jury in conformity with the defendant’s claims.” If nothing had been superadded to this part of the charge, it would have exactly accorded with the claim of the defendant, that it was requisite that the plaintiffs should be in possession when the trespasses were committed. But the court proceeds, in continuation of that part of the charge, to say, that if the plaintiffs then had title to the land, their having been previously disseised thereof, by the defendant, would not prevent their recovery, if they had, previous to said trespasses, retaken possession, so that they were in possession when said trespasses were committed. This remark (to which no exception is taken,) plainly strengthens what had before been said as to the necessity of the plaintiffs’ being in possession when the trespasses were committed, and was only intended to obviate any difficulty in the way of their recovery arising from the circumstance of their having been before disseised. The charge then concludes, by stating, that although a simple reentry on the land would not revest the possession in the plaintiffs; yet if they, having title to the land, (for such is the case supposed in the preceding part of the sentence,) went upon the land in 1843, which was before the trespasses complained of, and, as owners thereof, retook the possession, and remained there some two or three days, cutting and carrying away the wood and timber, keeping the defendant out of possession, and forbidding him from entering - on the same, such a retaking of possession would enable them to maintain this action for any act of trespass committed by the defendant, at any time thereafter. The object of this remark obviously was, to preclude the plaintiffs from the benefit of a simple reentry, unaccompanied with a retention of the possession ; and although it did not, in so many words, make such retention necessary, when the trespasses were committed, such, we think, was its clear import; and it could not be otherwise understood, by ordinary minds. The charge had previously, as we have seen, asserted and repeated the principle, that, in order to recover, the plaintiffs must have been in possession when the trespasses were committed ; and in the sentence next preceding that which we are now considering, had stated the effect of the plaintiffs’ regaining possession after a disseisin, as being a sufficient possession, if continued to the time of the commission of the trespasses ; and this clause, to the generality of which exception is taken, was intended to guard against the inference by the jury, that a retention of the possession was not necessary after such reentry, and not to convey the idea, that such retention need not be continued to the time of committing the trespasses. Hence, it appears, that there is no inconsistency between that part of the charge in which the plaintiffs’ possession of the land is stated to be necessary when the trespasses were committed, and the subsequent part of it, in which, it is claimed, that the court omitted or denied that principle. And it is not to be presumed, that the jury, in their verdict, disregarded, or did not give full effect to, that principle, which had been so clearly stated and repeated to them, by the court.

It has been suggested, that the court below erroneously instructed the jury, that the acts of the plaintiffs in remaining on the land two or three days, and cutting and carrying away the wood and timber thereon, when they went upon the land in 1843, and forbidding the defendant from entering upon it, constituted, as matter of law, a retaking of the possession by the plaintiffs. We do not so interpret the charge. The court had informed the jury, that, if the plaintiffs had been disseised, a retaking of the possession, and retention of it when the trespasses were committed, was necessary in order to maintain this suit; and that a mere reentry, without such retention, would not be sufficient; and these acts were mentioned in connexion with this part of the charge, as being evidential, but not conclusively so, of the fact that the plaintiffs took and retained possession, and also in order to point out more clearly the difference between the mere reentry which had been mentioned, and one followed by a retention of the possession. This being the true construction of this part of the charge, its correctness is not questioned, and is too obvious to require vindication.

A new trial, therefore, is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.