text:
    Lyon against Lyon.
    Where, on the application of A to the superior court, shewing that a divorce had been granted in her favour against B, and a certain sum allowed to her, as alimony, to be paid to her, by B, within a certain time; averring, that B, at the time specified for payment, owned a much larger amount of property, that such time had elapsed, and that payment had been demanded and refused; averring also, that he had concealed and fraudulently disposed of his property, to evade payment; praying, among other modes of relief, for an attachment against B for contempt; it was held, 1. that this application was to be regarded, not as an original and independent bill for aid or relief, but as a petition connected with and a part of the proceedings in which the divorce was granted and the alimony decreed; 2. that in order to bring such petition within the cognizance of the court, regular service thereof is not requisite, but only such reasona ble notice as the rules of practice may require; 3. that consequently, a plea in abatement of such petition, founded on defective service, by reason of a variance between the original and the copy left in service, and the pendency of an action previously brought to recover the same debt, was unavailable; 4. that the jurisdiction of the superior court on the subject of divorce and alimony, with incidental matters, is of a special character; the form and manner, in which the proceedings are to be commenced and prosecuted being similar to those in suits in equity; 5. that in the allowance of alimony to the wife, the court does not decree it as a debt due to her, by her late husband, but as a part or proportion of his estate, fixed by the court, and appropriated to her, and to which she thereupon becomes legally entitled; 6. that such a decree, in its nature and effect, is the same as that of an ordinary decree of a court of equity for the specific performance of any other act; 7. that the facts alleged in this petition being proved, the court directed an attachment for contempt to issue against B, on his not shewing cause to the contrary, on a rule for that purpose.
    Fairfield,
    June, 1851.

      It seems that in the service of a bill in chancery, by copy, a merely verbal variance between the original and copy, without materially changing the sense, would not be a sufficient ground of abatement.
    This was an application to the superior court, as a court of chancery, to carry into effect a previous decree of that court, divorcing the plaintiff from the defendant, and granting to the plaintiff 5,000 dollars, as alimony. The plaintiff also prayed for a discovery and for an injunction.
    The application alleged, that the petitioner brought a petition to the superior court, held at Danbury, on the first Tuesday of October, 1849, praying for a divorce from her then husband Jarvis Lyon, and for alimony out of his estate, which was duly served on him; that the parties appeared, and, at the term of the court on the second Tuesday of February, 1850, a decree, of the court was passed, divorcing the petitioner from her said husband, and ordering, that he should pay to her, within sixty days from the 27th day of March, 1850, the sum of 5,000 dollars, as alimony; that on the trial of such cause, the respondent was sworn as a witness, who admitted, that he had in his possession personal property to the amount of 15,000 dollars, and over that sum; that the decree of the court was intended as an assignment of a portion of said amount in the hands of the respondent, to be her own proper estate, to which she was to be entitled, according to the statute and by virtue of said decree; that it was the duty of the respondent to deliver over to the petitioner said sum of 5,000 dollars, according to the decree; yet he, in contempt of said order of the court, though particularly requested, on the day specified in said order, then, and at all times since, wholly neglected and refused so to do; that at the time of the passing of said decree, he had placed his property in such a situation that he could withdraw it from all liability to be taken on civil process; that he has since, with the design of disobeying said order, and in contempt of the court, either converted his property into money, which he keeps concealed, or has fraudulently assigned and disposed of it, so that it cannot be found or levied upon, or taken on civil process; that ever since the passing of said decree, he has been, and still is, abundantly able to deliver to the petitioner said sum of 5,000 dollars; that, as she verily believes, large portions of said amount of 15,000 dollars are now in the hands of some person or persons, unknown to her, who hold the same without consideration, or are accountable therefor to the respondent; that other large portions thereof have been converted by him into stocks, or other real or personal estate to her unknown, which persons and property he has, in contempt of said order, and with a design to defraud the petitioner, concealed from her; that as she has been informed and verily believes, he has boasted that he will disregard said order, and that if he should be confined in gaol for the non-payment of said sum of money, he will spend his life in prison rather than comply with said order.
    The petitioner further averred, that it was impossible for her to ascertain, without the disclosure of the respondent, under oath, what he has done with the property which he had, at the time of the passing of said decree, nor in what condition, nor in whose hands, it then was. She therefore prayed, that the respondent should be required to disclose fully, under oath, what disposition he had made of said property, and whose it then was.
    The petitioner further prayed the court to cause said decree to be carried into full effect, by assigning and transferring to her such amount of the property of the respondents would make said sum of 5,000 dollars, with interest thereon; or by causing him to be committed to prison, for his contempt, in refusing to obey said order, in violating the duty which was thereby imposed upon him, and in treating with disrespect the authority of this court; concluding with a general prayer for such other relief as should be just and proper.
    To this application the respondent pleaded in abatement, 1st, the previous commencement and existing pendency of an action on the case for the same matter, cause and thing, and between the same parties, as the object of and the parties to this proceeding; 2dly, a variance between the copy of this petition left in service and the original petition. This variance was merely verbal, not materially affecting the notice thereby given to the party.
    To the plea in abatement the petitioner demurred.
    On the hearing of the petition, the court found the allegations therein contained regarding the decree of divorce, to be true. The court further found, that when the money, which, by that decree, was to be paid to the petitioner, became due, it was demanded by her of the respondent, and that he then said, that he had no money for her; and when inquired of by her, when he would pay the same, he said, he should not pay it, till he got ready. When requested by her to pay the interest on it, he neglected and refused so to do. The court further found, that when the petition for a divorce was served upon him, he held a note against Lewis C. Segee for 6,723 dollars, payable to the respondent, on demand, with interest, which note was well secured by mortgage of real estate in the city of Bridgeport; that on the 1st of October, 1849, this note was taken up, and a new note substituted, for the sum of 7,457 dollars and 57 cents, payable to the order of the respondent twelve months after date, which was secured in like manner; that at the passage of said decree, the respondent also held a negotiable note for about 5,000 dollars against H. R. Harrall, a responsible citizen of Bridgeport; that on the 11th of July, 1850, said mortgaged premises were quit-claimed, by the respondent, to said Segee, and the note paid; that the attorneys of the petitioner have, ever since said sum of money become due, made diligent search for property to secure said claim, but without success; and that the petitioner is, and has been, ever since said divorce, wholly destitute of money and means, and also is without relatives able to furnish her with money, or support; that when said decree was passed, there was an injunction and a petition for an injunction, pending before this court, which are still pending.
    The case was reserved for the advice of this court on the questions contained therein; which court were to draw any legal inferences from the evidence and facts contained in the foregoing finding. The questions presented particularly were: 1st, What judgment ought the supreme court to render on the plea of abatement?
    2dly, Upon the facts found and admitted, is the petitioner entitled to relief; and if she is, what decree ought to be passed, or what order made ?
    3dly, Is the petitioner entitled to the disclosure prayed for, in her petition; and if so, to what extent?

      Dutton and Loomis, for the plaintiff,
    contended, 1. That the plea in abatement was insufficient. First, the substitution in the copy of a different word from that in the original, without altering the meaning, does not vitiate the service. The party has the same notice, that he would have, if the copy had been exactly literal. Secondly, the pendency of an action at law to recover a debt, will not abate an application to a court of chancery for aid in carrying into effect its decree, although the latter, if effectual, will supersede the necessity of pursuing the former, in any other way. 2 Sto. Eq. § 889. Colt v. Partridge, 7 Metc. 570. Blanchard v. Stone, 16 Verm. R. 234. 8 B. Monroe, 428. 3 Gill & Johns. 185. A mortgagee may bring three suits, at the same time, to obtain satisfaction of the same debt. 2 Sw. Dig. 198. A proceeding in rem to enforce a mechanic’s lien, cannot be pleaded in abatement of an action for work and materials. Crawford v. Slade, 9 Ala. 887.
    2. That upon the merits, the plaintiff is entitled to the relief she seeks. A court of chancery can enforce its decree, by writ of injunction, or by process of contempt. The power of the court is, and of necessity must be, coëxtensive with its jurisdiction over the subject matter. Kershaw v. Thompson & al. 4 Johns. Ch. R. 609. Ludlow v. Lansing, Hop. Ch. R. 231. Valentine v. Teller, Id. 422. Richardson v. Jones, 1 Gill & Johns. 262.
    3. That a court of chancery has power to aid the execution of the judgment of a court of law. It may compel a judgment debtor to discover his property, and put it within the reach of an execution. 2 Sw. Dig. 161.
    4. That it becomes immaterial, therefore, to enquire, whether the allowance of alimony, is in the nature of a judgment at law, or a decree in chancery; for in either case, the court will make it effectual. If ordinary process will not answer the purpose, a more efficient remedy will be applied.
    Hawley, (with whom was Morris,) for the defendant,
    contended, 1. That the plea in abatement was sufficient. First, the object, and whole object of both suits, was the same—to collect the debt. That was clearly the whole object of the first: every thing called for in this, is for the same purpose. Could a judgment creditor have debt on judgment and case, at the same time? Or after recovering the full debt in case, have assumpsit or debt for the debt? See 1 Conn. R. 154. It matters not that the forms of action differ, the object of both being the same. 1 Sw. Dig. 610. Secondly, the variance was material.

    2. That the plaintiff was not entitled to the interposition of the court. In the first place, chancery can in no way add to or modify the decree of the superior court. If it could ever have been done, it is too late now; but it could never have been done. The superior court, in divorce cases, acts as a court of law. The subject matter is not of chancery cognizance; and besides, the court had power in divorce cases, long before it had any chancery powers at all. 4 Conn. R. 72. 2 Tidd, 843, 4. and cases cited. The form of proceeding does not give character to the case. Hinman v. Taylor, 2 Conn. R. 357. Secondly, the defendant cannot be enjoined not to dispose of his property. No such injunction is ever issued, except in relation to specific property, which is the subject of controversy. 1 Mad. 130. 2 Sto. Eq. 905, 6, 7, 8. 953. 956, 7. At all events, an execution should first have issued, and efforts been made to find property: the party should have done every thing in her power to do. This is not at all like those cases where the petitioner has a lien—either by act of the party, or by operation of law. Here, clearly she has no lien at all. Our statutes give the rights of creditors, and fix the liability of debtors. If it be a case sounding in tort, or in contract, and the debtor withholds his property, the body may be taken and committed; and the debtor is entitled to the prison liberties, and may apply for the poor debtor's oath; and on such application, may be compelled to make full disclosure of his property, &c. No court can go beyond these remedies, surely not until the plaintiff has unsuccessfully resorted to them.
    3. That the discovery called for cannot be compelled. He who calls for such discovery must have. "an interest” in the subject matter. 2 Sto. Eq. 1490. 1493. The call here is, not merely for the discovery of enough to satisfy the claim, (in which case it could not be compelled,) but of all the defendant’s property and concerns. Besides, the plaintiff has no interest in any thing. No such application was ever sustained.
    Here again, it is fatal that no execution was ever issued; for the plaintiff, has not done all in her power to do. Non constat but on demand made under execution, the debt would have been paid. Mitf. 102.
    Again, there is sufficient remedy at law, on the commitment of the defendant, and his application for the oath, as stated above.
    4. That no process of contempt can be issued. For, (aside from the impropriety of chancery interfering to compel payment of the judgment of another court,) it would be opposed to the provisions and policy of our laws regarding the collection of debts; for such process would be merely for the collection of a debt. As above stated, on commitment under legal process, the defendant would be entitled to the gaol liberties and the poor debtor’s oath; but if committed for contempt, (of the nature of crime,) he would have neither. If he cannot be imprisoned for the debt at law, he cannot by chancery. The statutes of the state having prescribed the cases in which the body may be arrested and imprisoned, the mode in which it shall be done, and the mode of deliverance from it, chancery could imprison only in conformity with those provisions, if at all—never by process of contempt. Besides, there can be no order for commitment, till a previous specific order to perform the act, has been issued, served, and disobeyed. 2 Sw. Dig. 255. Commitment for contempt, in such cases, has never been practised in this state. 2 Sw. Dig. 144. 255.
    5. That if the decree of the superior court is not yet complete, the plaintiff is premature in her application, for either injunction, discovery or commitment. As yet there is no foundation laid for it. There must first have been a decree, and then a violation of it.
   Storrs, J.

The question whether the plaintiff is entitled to relief or assistance, in this case; and, if she is, what should be its nature and extent; must depend on the character of her bill or petition.

The defendant, in the first place, treats this application as an original bill, addressed to a court of equity, the object of which is to obtain the assistance of that court, in enforcing, or enabling the plaintiff to enforce, the judgment of a court of law, rendered merely for a sum of money; the judgment or decree for alimony on the petition for a divorce, being claimed to be of that character; and he insists, that the ordinary principles established in chancery with regard to bills of that description, should be held applicable to this case, and are opposed to the claim of the plaintiff for any relief.

The application is not very technically drawn, and would certainly furnish a strong ground for this claim, if the case presented a judgment of an ordinary court of law in her favour for a mere debt or sum of money; and if that were the proper light in which it should be regarded, we are not prepared to say, that the objections of the defendant, to the interposition of the court to which it is addressed, should not prevail. Whether, however, in that case, the application should be dismissed, we do not think it necessary to determine, because the plaintiff does not press the application on that ground; and on looking at the main averments in it, and the general object which the plaintiff manifestly has in view, as derivable from the relief which she professes to seek, we are induced to consider it as what would be termed in a court of law, a motion, or, in a court of equity, a petition, for such interposition as is necessary for the enforcement of the order or decree allowing alimony to the plaintiff, on her petition for a divorce, and, therefore, for the requisite process, in the case in which that order or decree was pronounced, for the execution of such order or decree, rather than as a distinct, independent, original bill in equity, brought in aid of a judgment of a court of law, or of a decree of a court of chancery in another or former suit. We view the present application only as one for further proceedings in the original suit for a divorce, and as really no more than a continuation of that suit, and therefore, as being no more disconnected from the order or decree which it seeks to enforce, than a motion or petition for an attachment for a contempt, where there is a wilful disobedience of an injunction, or any other order or decree of a court for the performance of a specific act. There are, indeed, several matters contained in the application, which seem to have been suggested, by an expectation or idea of some further contestation of facts between the parties; such as the averments respecting the concealment, and fraudulent disposition by the defendant of his property, with a view to elude the performance of the decree for alimony, or defeat its enforcement; and also the prayer, not only for an attachment for contempt, but a disclosure by the defendant of his property, an injunction against any further disposition of it, and an appropriation of it for the satisfaction of that decree: which allegations furnish a colour for the claim of the defendant as to the character of the proceeding.

But, in addition to the facts thus alleged and that prayer, it contains a statement of other facts independent of them, with regard to the manner, and motive, and avowed object of such concealment and disposition, accompanied with a petition for an attachment against the defendant as for a contempt of the authority of the court, which, if it is sufficient to warrant its interposition, and is supported by proof, is to be considered as a distinct branch of the application, presenting an independent ground for the exercise of its power, and one which, in our opinion, cannot, with propriety, either as it respects the general administration of justice, or the particular rights of the plaintiff in this case, be disregarded. This application being thus framed, we perceive no good reason why it should receive its technical or distinctive character from the allegations contained in it, which are urged by the defendant, rather than from those relied on by the plaintiff for that purpose, especially, if the latter constitute a valid ground for the interposition of the court to which the application is addressed, and it be true, as claimed by the defendant, that the former are insufficient to warrant any relief or assistance.

The case is, moreover, presented before us, only on its merits, after a hearing, and finding of the facts, and without any formal or technical exception having been taken, by plea or otherwise, to the mode of instituting the proceeding. Exceptions of that character are now entitled to no favour, even if they would have prevailed, if specially and regularly taken, in an earlier stage of the proceeding. We think, therefore, that this application should be entertained, by the superior court, as a petition, in the case in which that court decreed a divorce and alimony to the plaintiff, for an attachment against the defendant, grounded on his disobedience to that decree in not furnishing such alimony.

The view thus taken by us of the nature of this proceeding, disposes of the plea in abatement, as such, interposed by the defendant, founded, first, on an alleged variance between the application and the copy of it left with the defendant; and, secondly, on the pendency, when this proceeding was instituted, of an action at law previously brought in the superior court, for the recovery of the sum decreed to the plaintiff as alimony, on her petition for a divorce; and renders it unnecessary for us to consider whether, if this were an original bill in equity, of the character claimed by the defendant, it ought to be abated, on either of those grounds. The arguments urged in support of that plea, being founded on the claim that this is a bill of the description last mentioned, clearly cannot prevail as an exception of that kind, since it is determined not to be a proceeding of that character, but merely a motion or petition in the original proceeding for a divorce. But although, on such a motion or petition, no such technical exception is known or recognised as a plea in abatement, still, if the facts stated by the defendant in that plea are sufficient, to quash such motion or petition, it is but justice to him that he should have the benefit of them for that purpose.

With respect to the variance claimed, it is a mere verbal and immaterial discrepancy between the original and the copy, obviously happening accidentally, which produced no essential change of meaning between them, and which could not mislead the defendant as to the nature or object of the application. On a point of mere practice, (for this is nothing more,) respecting the notice to a party of a motion in a cause to be made by the other, it is hardly necessary to say, that it should not be set aside for a slip of this trifling character. Indeed, no such variance as this would prevail, even on a plea in abatement, where the question would be one of law, and not, like the present, of discretion.

Nor have we less doubt of the invalidity of the pendency of the action, brought by the plaintiff, on the decree for alimony, to quash this application. If such an action can be sustained, the most that can be said of the remedies sought by the two proceedings, is, that they are merely concurrent; and one, therefore, cannot supersede the other. It might, with as much force, be urged, that an action of debt or a judgment would prevent the issuing of a writ of execution on such judgment; as that the action at law founded on the decree in this case, should defeat this application. Indeed, it is not claimed, by the defendant, that the cases cited by him go to any such extent, or that they are applicable to this proceeding, in the view which we take of it.

We do not deem it necessary to discuss, with any minuteness, the question which has been much argued by the defendant, whether the jurisdiction conferred on the superior court to grant divorces in particular cases, with the other incidental powers respecting alimony, the change of the name of the wife, and the custody of the children of the marriage, is strictly of a legal or equitable nature. The decision of it, in a general form, would, in this case, lead to no profitable result. The jurisdiction on this subject is of a special character, and is given to the superior court generally, without designating, in terms, whether it is to be exercised as a branch of its legal or equitable powers; both of those different kinds of jurisdiction being, in this state, vested in the same judicial tribunal, and administered by the same judges, not distinguished in the exercise of their powers, by any difference of name, or style of address or description. As to the form and manner in which proceedings for divorce are to be commenced and prosecuted, it is very plain, from the act on that subject, that they were intended to be similar to those in suits in equity. Stat. tit. 7. ch. 2. p. 271. Indeed, independent of any express statutory regulations, in this respect, it is quite obvious from the nature and object of those proceedings, that such must be the case, since the form of no action or proceeding at law would be appropriate or adequate for the purpose. The decree of divorce in these cases, by its own force, dissolves the marriage contract and relation between the parties, and leaves them single and unmarried.

In regard to the rights of the parties consequent upon the divorce, to which they may be adjudged to be entitled, where the decree respecting them does not, of itself, operate so specifically as to be the means of its own execution, but is, in order to be effectual, so framed as to require particular acts to be done by one of the parties, it was undoubtedly the intention of the legislature to invest the court, in this as in all other cases, where it has the right to render judgments, decrees and orders, with such power and authority as should be necessary to carry them into full effect. Such power is, from the nature of a judicial tribunal, necessary, and inherent in its very constitution. Without it, it would hardly be invested with the efficiency, or entitled to the respect, even of an advisory tribunal. In carrying their decisions into execution, courts will adopt those processes which are established by precedent, and have thus received the sanction of law, where they are adequate for the purpose, but where they are not, would feel authorized and bound to devise other modes, which should be effectual to that end, being careful, however, not to exceed its constitutional and legal authority. In the present case, however, we do not consider it necessary, if the plaintiff is entitled to the assistance of the superior court, that it should resort to any newly devised means of coercion against the defendant; since no such process has been applied for; and it cannot be anticipated, that the established and ordinary, though, happily, rare mode of proceeding, by attachment for contempt, will not be effectual.

The question then arises, whether it is competent and proper for the superior court, in the present case, to enforce its decree for alimony, by such process of attachment. It appears, that that court passed a decree divorcing the plaintiff from her husband, the defendant, and ordering, that he should pay to her, within the time therein mentioned, and which has long since elapsed, the sum of five thousand dollars, as alimony. It further appears, that he has abundant means at his command for the payment of said sum, but that he has not only neglected and refused to pay it to the plaintiff, although requested so to do, but that he has, for the purpose of depriving her of her rights under the decree, and preventing its execution, concealed of disposed of his property in such a manner that no part of it can be discovered or reached, in any mode, by the plaintiff. And for this conduct of the defendant no explanation or excuse, if indeed it would admit of any, has been offered. The defendant insists, that this decree stands on the same ground as a judgment of a court of law, or an ordinary decree in a court of equity, for the payment of a mere debt or sum of money, and is to be enforced, as in those cases, in the first instance, only by the accustomed writ of execution, and subsequently, if necessary, by an appropriate resort to a court of equity; and that an enforcement of this decree, by process of contempt, for a non-compliance with it, would deprive the defendant of the exemption from imprisonment, or, in cases of imprisonment, of the privilege of the oath provided by law for poor debtors, to which he would be entitled on an ordinary writ of execution. That such would be the mode of enforcing an ordinary judgment or decree, in those cases, need not here be controverted. But we are of opinion, as claimed by the plaintiff, that a decree, on the granting of a divorce for the payment of a sum of money to the plaintiff as alimony, is different in its character from those to which it is thus compared by the defendant.

Alimony is a certain part or proportion of the husband’s estate, which is allowed and assigned to the wife, upon their divorce. The word alimony is not used, although the idea conveyed by it is clearly embraced, in our statute of divorce, on which the decree in this case was founded, which provides, that “the superior court may assign to any woman so divorced, such reasonable part of the estate of her late husband, not exceeding one third part thereof, as in their discretion, the circumstances of the case will admit.” Stat. tit. 7. ch. 2. p. 275. The court does not, under this provision, decree and assign alimony, as a debt due to the wife, or as damages to be paid to her, by her late husband, on their divorce, but as a part or proportion of his estate, fixed by the court, in its discretion, and appropriated to her, and to which she thereupon becomes legally entitled. Such decree and assignment is specific in its character, and operates as a division or partition, between the husband and wife, of his property, in such proportion as the court, by its decree, determines. Where his property consists of real, or ordinary personal estate, which can be specifically divided, the court will, itself, or by a committee appointed for that purpose, apart to her such portion of his property as is assigned by the decree. Where it consists of property which is not capable of such a division, such as money in his hands, the court determines the sum which the wife shall receive, and directs, that the husband shall pay it to her, within such time as it shall deem reasonable; and such decree obliges him to perform the act, so directed to be done, specifically. The nature and effect of such a decree is the same as that of an ordinary decree of a court of equity for the specific performance of any other act. As the present case does not require it, we abstain from expressing any opinion as to the legality or propriety of the practice, which has somewhat extensively prevailed, in the superior court, under the provision of the statute which has been mentioned, respecting the allowance of alimony, of directing the payment of a certain sum of money, by the husband, to the divorced wife, where his estate consists of corporeal, tangible property which is capable of a division, in lieu of a literal compliance with the statute, by appropriating to her specifically a particular portion of such estate. Nor would we intimate, that the statute, by a just and equitable construction, does not sanction such practice where the court shall deem it expedient. The decree, in the present case, does not, however, appear to be of that description; and no objection is, nor do we perceive that any can be, made to its validity.

Such being the character of the decree, in this case, we consider it analogous to those decrees of courts of equity, which enjoin specifically, or prohibit, the performance of particular acts, among which the granting of injunctions is of the most frequent occurrence. In those cases, it is usual with us, to prescribe a penalty for disobedience; but that is, in many cases, an inadequate or ineffectual provision; and although until somewhat recently, process for contempt has not been resorted to, in such cases, it is now frequently adopted; and we not only perceive no objection to it on principle, but consider it as a most proper and salutary mode of proceeding, where the exigency of the case requires it. That it is one of the established and customary modes of enforcing such decrees of courts of equity as we have just mentioned, is too clear from the treatises on the practice of those courts, as well as the reports, to require the citation of authorities; and to that practice we think that the superior court should conform, in cases like the present.

The disobedience of the defendant to the decree of that court, in this instance, is palpable, wilful, and utterly inexcusable; and therefore constitutes, beyond a doubt, what is termed a contempt, which is well described, by an eminent jurist, (Judge Swift,) who defines it to be “a disobedience to the court, by acting in opposition to the authority, justice and dignity thereof,” and adds, that “it commonly consists in a party’s doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order or decree of the court; in all which cases, the party disobeying is liable to be attached and committed for the contempt.” 2 Sw. Dig. 358.

We therefore advise the superior court, to issue an attachment for contempt, against the defendant, on his not shewing cause to the contrary, on a rule for that purpose.

In this opinion the other Judges concurred.

Attachment for contempt issued,

         As the ulterior proceedings, in this case, may be of general interest, and useful in practice—to the profession at least—I subjoin a statement thereof ex relatione amici.

      At the term of the superior court, in October, 1851, the case, having come back from this court, Dutton and Loomis, soon after the commencement of the term, moved for process of contempt against the defendant. This was resisted, by Hawley, his counsel, claiming, that the decision of this court was only, that process should issue, if the defendant refused to disclose, or did not make a satisfactory disclosure. Application was thereupon made to Ch. J. Church, and a statement of the decision obtained from him. The counsel for the plaintiff then moved the court to assign a time for the defendant to appear, and shew cause why such process should not issue. The court assigned a day about a fortnight thereafter. Before the day arived, however, the plaintiff’s counsel, fearing that the defendant would leave the state, and thus evade the process, drew up an application to the court, stating, that the defendant had, notwithstanding the decision of this court, refused to pay the 5,000 dollars alimony, and had spoken with contempt of the court, and its order; had expressed a determination to disobey it; and had used language importing a purpose to go beyond its jurisdiction; to which statement the plaintiff made affidavit. This being presented to the court, the plaintiff prayed, that a writ of ne exeat should issue forthwith; claiming, that the defendant might, and probably would, if he knew of the application, immediately place himself beyond the reach of process. This was opposed by the counsel for the defendant; who urged the court to grant him time to look at a proceeding, which, so far as he knew, was without a precedent in this state. But the court (Hinman, J., sitting,) said, he thought such a proceeding was just and reasonable. Thereupon a writ was issued, signed by the clerk, and directed to the sheriff, counting on and setting forth, in substance, the allegations in the application, and stating, that they were verified, by the oath of the applicant. This writ directed the officer to cause the defendant to give a bond, with surety, in the penal sum of 7,000 dollars, payable to such officer, or his successor in office, conditioned that the defendant would not leave the state, without permission of the court; and if he should refuse to give such bond, the officer was thereby directed to commit him to the common gaol in the county, and deliver to the gaoler a certified copy of the writ, with his doings thereon indorsed; and the gaoler was directed to keep him safely, within the prison, until he should give such bond, or be discharged according to law. The officer was also directed to make return to the court of the writ. The sheriff called, the next morning, on the defendant with the writ; and after some hesitation, he gave the bond required. When the day assigned for the hearing arrived, the defendant provided for the payment of the alimony, with interest and costs.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    Beam and another against Barnum.
    Fairfield,
    June, 1851.
    Where A recovered a judgment against the partnership of B & C, for more than 700 dollars, after which the parties met in the state of New-York, where the debt was originally contracted, and made a compromise of such debt; whereupon A gave to B a writing, certifying that A had received 300 dollars from B, in consideration of which A released B from all claims against him individually, and also as one of the firm of B & C; to an action afterwards brought in this state, by A against B, as surviving partner of B & C, to recover said judgment debt, B pleaded such release in bar; it was held, 1. that this being a New-York transaction, must be governed by the law of that state; 2. that under such law, the release pleaded was effectual to bar the action; 3. that though B was discharged from liability in every form, the estate of C remained liable.
    In this state, a receipt in full, is, in the absence of fraud, mistake, accident or surprise, a good defence in bar.

      Qu. whether, at common law, one member of a creditor firm, after the partnership is dissolved, can, in the partnership name, compound and discharge a debt due to the partnership, before its dissolution?
    This was an action of debt on judgment. The judgment set forth in the declaration was one rendered by the county court of Fairfield county, on the first Tuesday of February, 1839, in which the present plaintiffs, viz., John V. Beam and Levi Lyon, surviving partners of the late firm of Clark, Beam & Co. recovered of Phineas T. Barnum, the present defendant, and Horace Fairchild, since deceased, partners, under the firm of Barnum & Fairchild, the sum of 779 dollars, 47 cents, debt, and 13 dollars, 43 cents, costs of suit. The present action was brought against Barnum, as surviving partner of the firm of Barnum & Fairchild.

    The defendant pleaded in bar of the action, that after the recovery of said judgment, viz., on the 7th day of September, 1842, the plaintiffs made and delivered to the defendant a certain writing or release in the following words: “New-York, September 7th, 1842. This is to certify, that we have received from Phineas T. Barnum three hundred dollars, in consideration of which, we hereby release him from all claims against him individually, and also as one of the firm of Barnum & Fairchild. This release is not to affect our claim against Fairchild. Clark, Beam & Co., per John V. Beam.” The defendant then averred, that in and by said release, and in consideration of said sum of 300 dollars therein mentioned, then paid to the plaintiffs, they released and discharged, intending so to do, the defendant from all demands of the plaintiffs against him individually, and also as one of the firm of Barnum & Fairchild, and particularly from the cause of action, demand, claim and debt in the plaintiffs’ declaration mentioned.
    To this plea the plaintiffs demurred.
    The case was thereupon reserved for the advice of this court, on the question of law as to the effect of the discharge, as to the defendant, in extinguishing the debt or claim set up in the declaration. The general statute of New-York, in relation to the subject in controversy, was agreed to be admitted in evidence. It was also agreed, that at the time the writing in question was given, the firm of Barnum & Fairchild had been dissolved.

      Loomis and Warner, for the plaintiff,
    contended, 1. That the writing was ineffectual, as a release at common law. Averill v. Lyman, 18 Pick. 352. Rowley v. Stoddard, 2 Johns. R. 209. 1 Sw. Dig. 302. First, a technical release is an instrument under seal; but this is not under seal. Shaw v. Pratt, 22 Pick. 305, 8. Seymour v. Minturn, 17 Johns. R. 169. Tucker v. Baldwin, 13 Conn. R. 136. 142. Secondly, a release not under seal, and without consideration, is void. Jackson d. Rosevelt v. Starkhouse, 1 Cowen, 122. Thirdly, partial payment of a debt liquidated and due, is no consideration for an agreement to release the residue; and it is immaterial whether the agreement is by parol, or in writing. Warren v. Skinner, 20 Conn. R. 561. and cases cited. White v. Jordan, 27 Maine, (14 Shep.) 370. Eve v. Mosely, 2 Strobh. 203. Fitch v. Sutton, 5 East, 230. Bailey v. Day, 26 Maine, (13 Shep.) 88. Andrus v. Andrus & al. 1 Root, 72. Rogers v. Hemsted & al. Kirby, 44. Smith v. Bartholomew, 1 Metc. 278. Walker v. McCulloch, 4 Greenl. 421.
    2. That the statute law of New-York is inapplicable to this case. In the first place, it is the law of a foreign jurisdiction, and can have no effect here, except by comity; and comity never requires our courts to permit injustice to be done to our citizens, unless they have assented thereto. Hempstead v. Read, 6 Conn. R. 480. 492. Sto. Confl. 8. 334. 348, 9. 350, 1, 5. Baker v. Wheaton, 5 Mass. R. 509. 511. Watson v. Bourne, 10 Mass. R. 337. 340. Braynard v Marshall, 8 Pick. 194. Ogden v. Saunders, 12 Wheat. 213. 358. Brown v. Starkpole, 9 N. Hamp. R. 478. Norton v. Cook, 9 Conn. R. 314. Atwater v. Townsend, 4 Conn. R. 48. Agnew v. Platt, 15 Pick. 417. Secondly, the plaintiffs have never assented to this release, or to this contract, and cannot be affected thereby; because they have no authority or power to act in the premises. 1 Sw. Dig. 350, 51. Van Keuren v. Parmelee, 2 Comstock, 325. Karthous v. Ferrer, 1 Pet. 228. Averill v. Seymour, 18 Pick. 350. 3 Kent’s Com. 63. (last ed.) Kilgour v. Finlyson, & al. 1 H. Bla. 155. Abel & al. v. Sutton, 3 Esp. Ca. 108. Lansing v. Gaine & al. 2 Johns. R. 300. Sanford v. Mickles & al. 4 Johns. R. 224. Hackley v. Patrick, 3 Johns. R. 528. Rathbone v. Drakeford, 6 Bing. 375. (19 E. C. L. 105.)
    3. That the suit is properly brought, and is in the only form in which it could be sustained, Barnum is the survivor of the late firm of Barnum & Fairchild.

      Dutton and Noble, for the defendant,
    contended, 1. That a receipt, in Connecticut, is conclusive, unless there is fraud, mistake or surprise pertaining to it. Fuller v. Crittenden, 9 Conn. R. 401. Tucker & al. v. Baldwin, 13 Conn. R. 136. In the latter case, the doctrine of Fuller v. Crittenden was affirmed, and all the prior Connecticut cases cited, at p. 143. Hurd v. Blackman, 19 Conn. R. 177. is an additional authority to the same effect.
    2. That though, according to the decisions in New-York, and perhaps elsewhere, a receipt does not preclude the party from shewing the facts under which it was given; (Putnam v. Lewis, 8 Johns. R. 389. Tobey v. Barber, 5 Johns. R. 68.) yet where it was given with full knowledge, and without fraud, imposition or misapprehension, it is a conclusive bar. Vedder v. Vedder, 1 Denio, 256. See also the remarks of Lord Ellenborough in Alner v. George, 1 Campb. 393. A receipt, under these circumstances, has the effect of a technical release. In Decker v. Livingston, 15 Johns. R. 479. it was held, that a receipt for rent, accruing at a certain time, was presumptive evidence that all rent previously accruing, had been paid.
    3. That the powers of a partner, after the dissolution, are ample for the execution of instruments of this character. New-Haven County Bank v. Mitchell, 15 Conn. R. 206. 222. Murray v. Mumford, 6 Cowen, 441. 2 Conn. R. 677.
    4. That the writing in question is a contract. The plaintiffs obligate themselves to consider the debt as discharged. Stafford v. Bacon, 1 Hill, 532. The agreement that Fairchild should remain bound, is valid. Solly v. Forbes, 2 Brod. & Bing. 38. (6 E. C. L. 11.) Waters v. Smith, 2 Barn. & Adol. 886. (22 E. C. L. 205.) Field v. Robins, 8 Adol. & Ell. 90. (35 E. C. L. 333.)
    5. That the statute of New-York above referred to, authorises such compromise, and the writings for that purpose, after the dissolution of the partnership.
   Ellsworth, J.

In the argument of this case, a wider range was taken, by counsel, than we think it necessary to follow, in order to decide the chief question in dispute.

That the debt is in the form of a judgment of a court of record, in this state, we deem unimportant, inasmuch as the locality which attaches to it, for some purposes, can have nothing to do with the question, whether the debt is discharged, by a composition and release. Nor is the question of the legal effect of a receipt in full, executed in this state, important. Nor the peculiar phraseology of this receipt, as whether, if executed in Connecticut, it would be held, under our decisions, to be in truth a receipt in full. We had, however, supposed, that the effect of a receipt in full, was settled, in the cases of Fuller v. Crittenden, Tucker v. Baldwin, and Hurd v. Blackman, in our reports. In our courts, at least, a receipt in full is a good defence in bar, with perhaps some qualifications, as stated in the cases above-mentioned. These matters are here unimportant, because, the subject now in hand is a New-York transaction, exclusively, and must be governed by the law of that state. There, the original debt was contracted, and continued; there, the parties met and compromised, with special reference to that statute law of New-York, which alone can give to the settlement made the peculiar effect aimed at, by both parties. So the question discussed by counsel, whether, at common law, one member of the creditor firm can, after the company is dissolved, in the company name, compound and discharge a debt due the company before its dissolution, is unimportant; though of this too we should entertain no doubt, if the thing is done understandingly and honestly, inasmuch as the statute of New-York, in the first section, provides, “that any one or more of the individuals, who was or were embraced in such copartnership firm, may act alone in the compromise; and such compromise or composition shall be a full and effectual discharge to the debtor or debtors making the same.”

We have then only to enquire, if the composition made in New-York is effectual, according to the provisions of the New-York law. The law is full and explicit in its terms; and it applies, beyond all question, to this very case. The provisions of the law have been complied with, by both parties, fairly and fully; and it was probably the best thing for the creditors that could be done at the time; at least, the creditor himself so believed; and he must be allowed to be the best judge in the matter. The debtor, on paying the amount agreed to, received from Mr. Beam, as the law required, a note or memorandum in writing, exonerating him from all and every liability incurred by reason of such connexion with such partnership firm, which may be given in evidence, &c., in bar of such creditor’s right of recovery against him or them.

We see no way of evading this settlement, consummated under and according to the provisions of the law of New-York. In the courts of that state, certainly this writing would be held to be a good bar to a recovery. And why not equally so in Connecticut? It is of the very essence of the composition, that Barnum is to be no longer liable for the debt.

It was said, on the trial, that Fairchild, the partner of Barnum, was not discharged from the debt, but Barnum alone, and that Fairchild being dead, and Barnum the survivor, his condition is altered, and he is now liable as survivor, and as survivor is sued; so that if Barnum could not be held liable for the debt himself, as a partner, he can be as the representative of Fairchild. But if he is discharged “from all and every individual liability, by reason of the connexion with such partnership firm,” he is discharged from liability as survivor, (for this is but a part of the original liability,) and from every liability, without exception. If this is not so, and he can now be sued for the debt, because he happens to be the survivor, he has not been effectually discharged from the debt. The plaintiffs are not debarred from presenting the claim against the estate of Fairchild, now deceased; nor if Fairchild's estate is able to pay the debt, is the discharge of Barnum any obstruction to obtaining payment from the estate; and such would be the case, if Fairchild was living. His liability to pay the whole remains unaffected, by the composition with Barnum, as much so, as if that composition had never been made; and should Fairchild's estate pay the debt, then, if, on the settlement of the company’s affairs, this payment should make Barnum indebted to Fairchild's estate, he must pay it, notwithstanding the composition with the plaintiff; the discharge from the plaintiff would be no answer to Fairchilds executor or administrator. It has no reference whatever to the liability of the partners, as between themselves. What would be the remedy to be pursued, in New-York, or here, whether at law or in equity, and what the precise form of redress against the partner who is not discharged, or against his estate, we have not had occasion to examine. Doubtless, both here and there, such local remedies would be allowed as are adapted to the situation of the parties, always securing to the creditor whatever is left to him against the partner not discharged, and to the partner who has been discharged, the immunity to which he is entitled.

In this opinion the other Judges concurred.

Judgment for defendant.


author: Hinman, J.

text:
    Peck and others against Whiting.

      Fairfield,

    June, 1851.
    In an assignment under the statute of 1828, the appointment of the assignor, by the trustees, as their agent for the sale and disposal of the property assigned, without the assent of the court of probate, and before an inventory has been returned, renders the assignment fraudulent in law and void, as against creditors of the assignor.
    Object of the statute of 1837, (p. 366.) authorizing trustees to employ the assignor as their agent.
    The cases of Osborne v. Tuller, 14 Conn. R. 529. and Strong v. Carrier, 17 Conn. R. 319. commented on.
    This was an action of trover, for the conversion of certain goods, wares and merchandise.
    The cause was tried, on the general issue, with notice of special matter to be given in evidence, at Fairfield, February term, 1851.
    Upon the trial, the plaintiffs claimed title under a deed of assignment, made to them, on the 7th day of September, 1848, by John D. Leavenworth and Mark Leavenworth, partners, for the benefit of their creditors, in pursuance of the provisions of the statute of 1828, relating to the settlement of insolvent estates. Stat. 363.
    It was proved and admitted, that at the time of the assignment, the goods described in the declaration, were owned by the assignors, and were in a store occupied by them, in the town of Monroe, and that they were insolvent.
    The plaintiffs introduced evidence to prove, that on said 7th day of September, they lodged said assignment for record in the office of the court of probate for the district of Bridgeport, where the assignors resided; that they accepted the trust, gave bonds according to law, and procured the appointment of appraisers to be made; that on the 11th of September, the appraisers commenced taking an inventory of the goods in the store assigned to them; and on the 14th of September, they completed an inventory of the goods, but in consequence of the necessary absence of one of the ap praisers, the inventory of the residue of the property assigned was not completed until the 28th of October, 1848; and that the inventory was returned to and accepted by the court of probate, on the 4th of November following.
    At the time of the assignment, the assignors delivered to the plaintiffs the possession of the store in which the goods were kept, and the key of the same. On the 16th of September, and after the inventory of the goods had been so taken, the plaintiffs obtained from the court of probate an order, authorising them sell to such goods; and on the 18th of September, they employed Mark Leavenworth, one of the assignors, as their agent, and under their direction and supervision, to make sale of the goods, put him in possession of the store, and delivered to him the key. He continued to make sale of the goods until the 28th of September, when the defendant, as a deputy sheriff, attached the goods described in the declaration, being nearly all the goods unsold and remaining in the store, by virtue of several writs of attachment in favour of the creditors of the Leavenworths, and afterwards disposed of them, in due form of law, in satisfaction of the debts of such creditors.
    They further introduced evidence to prove, that the assignors had no other possession of said goods than such as arose from the employment of Mark Leavenworth, as aforesaid; that one of the plaintiffs was frequently at the store, superintending the sale of the goods; that it was generally known, that the goods had been assigned to the plaintiffs, and that said Mark was acting as their agent, who accounted with the plaintiffs for all the sales by him made.

      But it was not proved or claimed, that at the time of his employment, the inventory had been returned to the court of probate, or that that court, by any order or decree, had consented to such employment, or that public notice of such employment had been given, by publishing any advertisement in a newspaper.
    But the plaintiffs claimed, that they had a right to employ said Mark to sell the goods, without any formal assent of the court of probate; and that the possession of the goods by him, as the agent of the plaintiffs, furnished no evidence that the assignment was fraudulent.
    It was proved and admitted, that the sign of the assignors, placed over the door of the store, had never been removed prior to the attachment; but the plaintiffs claimed, that the omission to remove it, was by mistake on their part, and without any design, to induce a belief that the goods had not been duly and legally assigned.
    The defendant claimed, that the assignment was fraudulent and void, as against the attaching creditors; that the assignors, at the time of the attachment, and for some days previous, had been in possession of the goods, having the entire management, apparent ownership and disposition of them, by sale; and having introduced evidence in support of this claim, he prayed the court to instruct the jury, that such possession was conclusive evidence of fraud; and that the plaintiffs could not legally employ one of the assignors, as their agent, to sell the goods, without the assent of the court of probate, nor in any other manner than that prescribed in the statute; and if they did, the goods were liable to attachment, when in the hands of the assignors, at the suit of their creditors.
    Upon these claims of the parties, the court, for the purpose of enabling the jury to determine the questions of fact, involved in the case, instructed them, that the question whether the assignment was in fact, fraudulent and void, as against the attaching creditors, was one for them to decide, upon the evidence in the case; that the mere circumstance that the plaintiffs had employed one of the assignors as their agent to sell said goods, without having previously obtained the assent of the court of probate, and the delivery to him of the key of the store, and the possession of the goods, for the purpose of enabling him to sell them, as their agent, did not render the assignment in law fraudulent and void, as against attaching creditors; but all these circumstances were proper for their consideration, in determining whether the assignment was in fact fraudulent and void.
    The jury having returned their verdict in favour of the plaintiffs, the defendant moved for a new trial, for a misdirection.

      Hawley and Beardsley, in support of the motion,
    contended, That this assignment was void as against attaching creditors, if the assignees permitted the assignor to have the entire management, apparent ownership and disposition of the goods, by sale, without taking the steps required by the statute of 1837. See Stat. 366. First, the statute is, in its terms, imperative. Secondly, when a statute directs a thing to be done, in a particular manner, it can be done in no other way. 1 Sw. Dig. 11. Thirdly, this is apparent from the objects of the statute. They are three-fold: 1st, to protect the creditors from loss, by reason of the fraudulent disposition, by the assignor, before the inventory is returned to the court of probate. 2dly, to guard against the danger of a dishonest or improper person being selected to dispose of the assigned estate. 3dly, to furnish notice to the world of the relation in which the assignor stands to the assigned estate, while exercising acts which are the ordinary indicia of ownership. These are all great objects of public policy. The cases of Osborne v. Tuller, 14 Conn. R. 529. and Strong v. Carrier, 17 Conn. R. 320. do not conflict with this view, but maintain it.
    Unless this operation is given to the statute, it will be practically repealed, by this court. The implication from the enactment of the statute, is, that the common law is as we claim it.

      Dutton and Loomis, contra,
    contended, That the defendant was not entitled to a new trial. In support of this position, they submitted the following considerations. 1. That if all the facts claimed by the defendant had been proved, it would not have made the assignment fraudulent in law. Osborne v. Tuller, 14 Conn. R. 529. Strong v. Carrier, 17 Conn. R. 319. 332.

      2. That the lodging of an assignment with the court of probate, was constructive notice of such assignment to all the world, and places the personal estate in the same condition as real estate is in, when a deed is recorded in the town-clerk’s office.
    3. That the statute of 1837 does not apply, as the inventory bad not then been perfected and returned.
    4. That the statute is not imperative. It was passed merely to enable the assignees to employ the assignor as their agent, without being exposed to litigation.
    5. That the goods sold had been inventoried, and were sold under and conformably with an express order of the court of probate.
    6. That the defendant claimed, that the court should charge the jury in a particular way. The charge prayed for would have been erroneous. Now, the omission to give a charge, which it would have been improper to give, is no ground for a new trial.
    7. That the defendant, under the charge given, had the benefit of all the circumstances bearing upon the question of fraud, as a matter of fact.

   Hinman, J.

The defendant attached the goods in question, as the property of John D. & Mark Leavenworth. He found them at the store where said Leavenworths had been doing business, in the actual possession, for the time, of Mark Leavenworth; and the question is, whether they can be held, by the attaching creditor, against the plaintiffs, who claim them under a previous assignment, pursuant to the statute of 1828, for the benefit of the Leavenworths' creditors.

The case turns upon the question whether there was any legal reason for the possession, retained, by one of the assignors, after the assignment. The plaintiffs claim, that the case of an assignment, for the benefit of creditors, under the statute, forms an exception to the rule, requiring a change of possession, in order to prevent a transfer of personal property from being deemed fraudulent. That there is, in this respect, a very marked distinction between an assignment for benefit of creditors, and an ordinary sale inter partes, there can be no doubt. Such a distinction was fully established, in the case of Osborne v. Tuller, 14 Conn. R. 529. and again recognised, in the case of Strong v. Carrier, 17 Conn. R. 319. In those cases, it was held, that the legal presumption of fraud, arising from the continued possession of the assignor, was repelled, by proof, that the requirements of the statute had been complied with. The reason of those decisions was, that the assignee, under the statute, having complied with its terms, had so made himself responsible to the general creditors, that they could not be defrauded, by any disposition he might choose to make of the property. We are well satisfied with those decisions, and do not intend to qualify them, in the least; but we think it very clear, that this case does not fall within them.

There has been no compliance with the terms of the statute, in this case; and we think, the neglect gives all the opportunity that the most dishonest debtor could desire, to defraud his creditors, should the course taken in this case be sustained. In the case of Strong v. Carrier, it was held, that a general assignment of all a debtor’s estate, without any specification of it, was good, under this statute. This was upon the ground, that the assignment was made in reference to the inventory, which the law directs the trustee to make and return to the court of probate. And the court say, that the deed is the introductory measure, to be completed, by the return of the inventory, which then becomes parcel of the proceedings, and may be treated as if attached to it. When this is all done, it is obvious, that the creditors can have no right to complain of any disposition the trustee may make of the property. If the judge of probate has done his duty, in taking a sufficient bond, the creditors are always secure, to the full extent of the property assigned. The assignment conveys it to the trustee, for their benefit; the inventory specifically shows what it is, and that it has come to the trustee’s hands; and the bond secures them against any improper disposition of it.

But, before the inventory is returned, the bond, in very many cases, if not in most of them, would be of little practical value; as a statement of the facts, as we suppose they existed in this case, will show. A general assignment is made of a stock of goods in a country store, without any specification of them. Obviously, no one but the assignor can know what property was conveyed; and very probably he would not. If under such circumstances, he is left in possession, retailing the goods from the store, as before the assignment, it is scarcely to be expected, that he would be very careful to account for it all. The temptation to make use of the avails, as he had been accustomed to do before the assignment, would, with most men, be irresistible. By a statute passed in 1837, (Rev. Stat. 366.) trustees, under the act of 1828, are authorized, after the return of the inventory, to appoint, with the consent of the court of probate, the assignor, as his agent, to make sale of the estate. The precise object of this statute, we are aware, is not very apparent. It was passed before the case of Osborne v. Tuller was decided, and, perhaps, it was thought, that without some such provision, the employment of the assignor, as an agent, would, in all cases, be deemed fraudulent. However this may be, we think it entitled to some consideration; and, to give it any effect, it is necessary to hold, that the assignor cannot act as the agent of the trustee, in any case, before the inventory is returned. It is apparent, we think, that such was the understanding of the legislature; and in this view of it, the statute is entitled to respect, as a legislative construction of the common law, on the subject. The judge at the circuit, for the purpose of enabling the jury to pass on the questions of fact involved in the case, instructed them, that the employment of one of the assignors to sell the goods, and the delivery to him of their possession, for the purpose of enabling him to sell them, as their agent, did not render the assignment, in law, fraudulent, as against attaching creditors. This, inasmuch as it was not proved, or claimed, that any inventory of the assigned goods had been returned to the court of probate, was erroneous. We think this omission to perfect the inventory, before the employment of the assignor as agent to sell, did render the assignment fraudulent in law and void, as against creditors; and the jury should have been so instructed. On this ground, we advise, a new trial.

In this opinion the other Judges concurred.

New trial granted.


author: Church, Ch. J.

text:
    Whitney against Bartholomew.

      New-Haven,

    July, 1851.
    The trade and occupation of carriage-making, or of a blacksmith, is a lawful and useful one; and a building erected for its exercise, is not a nuisance per se. But if such building, though erected on the builder’s own land, and occupied in the usual manner, be in an improper place, where its use will probably result in an injury to another, this is, of itself, a wrongful act, for which the wrong-doer is responsible to one essentially injured thereby.
    Therefore, where the plaintiff was the owner of a dwelling-house and land; and the defendant was in the occupation of a lot of land adjoining the plaintiff’s land, upon which was a large carriage factory and a blacksmith’s shop having several chimnies; and the shop and chimnies were placed upon or very near the dividing line of the lands of the parties; and in consequence of the location and use of the blacksmith’s shop, the cinders, ashes and smoke issuing therefrom, were thrown, in large quantities, upon the plaintiff’s house and land, rendering the water unfit for use, and the house nearly untenantable; it was held, that the defendant was liable for such injury.
    This was an action on the case, to recover damages done, by the defendant, to the property of the plaintiff, by means of a carriage factory and blacksmith’s shop, erected and occupied by the defendant, on his land, in the immediate vicinity of a dwelling-house and lot owned by the plaintiff.
    The cause was tried, on the general issue, at New-Haven, October term, 1850.
    On the trial, it was proved and admitted, that the plaintiff was the owner of the dwelling-house and land, described in her declaration; and that the defendant was in the occupation of a lot of land adjoining the plaintiff’s land, upon which was a large carriage factory and blacksmith-shop, used only in the business of making and repairing carriages; that the blacksmith-shop was used for the purpose of making carriage springs and axletrees, and other work for carriages, and had several chimnies; and that the shop and chimnies were placed upon, or very near, the dividing line of the lands belonging to the plaintiff and defendant.
    The plaintiff introduced evidence to prove, and claimed that she had proved, that in consequence of the location and use of the defendant’s blacksmith-shop, the cinders, ashes and smoke, issuing from the chimnies of the defendant’s shop, were thrown, in large quantities, upon the plaintiff’s house and land, so that the water in her well had become colored, and rendered unfit for use; that when the wind in a direction from the defendant’s premises, it was impossible for her tenants, living in her house, to dry their clothes, when washed, upon her premises, without having them soiled and injured, by the cinders and ashes thrown upon them; nor could they keep open their windows next to the defendant’s premises, without having the house filled with smoke, and large quantities of ashes blown into the house from the defendant’s shop; that in consequence of these annoyances, she could find no respectable tenant to occupy her house; and that it stood empty, for a whole year, when the house had previously rented for 130 dollars a year, and would have continued to rent for that sum, had it not been for the injuries received from the defendant’s blacksmith-shop.
    She thereupon claimed, that she had been materially and essentially injured in the enjoyment of her property, by the location and use of the defendant’s shop, in this manner; for which she claimed to recover damages.
    But it was not proved, that the defendant had done the plaintiff any intentional wrong, except what might be inferred from his continuing to use the shop, in the manner claimed by the plaintiff; or that the defendant had used his shop for any other purpose, than to carry on his business of carriage-making and the blacksmith business, connected therewith; or that his shop was built in any improper or unskillful manner, except that it ought not to have been placed so near the dividing line of their lands, as that the natural use of it would necessarily produce the injuries of which the plaintiff complained.
    The defendant thereupon claimed, that he was not liable to the plaintiff for the injuries complained of, unless he had been guilty of some wrong which occasioned them; that he had a lawful right to erect and build the factory and blacksmith-shop, on his own premises; that he was not liable to the plaintiff for any injury, occasioned by the use of the factory and shop, provided due care and diligence had been used, by the defendant, to prevent the injuries complained of; and provided the factory and shop had been used by him, in a reasonable manner, without negligence, carelessness, or unskillfulness; and prayed the court so to instruct the jury.

      Upon this subject, the court instructed the jury, that the plaintiff could not recover, in her present suit, unless she proved, that the injuries complained of were occasioned by some wrongful act of the defendant, or some negligence or carelessness on his part. That an act might be lawful or wrongful, according as it affected the rights and property of others. That a man owning a tract of land, through which flowed a stream of water, might erect thereon a factory and dam, as large and as high as he pleased, and use the water in the stream, for the purpose of turning the machinery in his factory. Such acts might be perfectly legal and proper, provided he did not thereby injure the property of others. But if, by means of his dam, he raised the water of the stream so high as to overflow and injure the lands of an adjoining proprietor, the acts, so far as that proprietor was concerned, would be wrongful, although they might be beneficial to all the rest of the community. A similar principle applied to the erection and use of a blacksmith-shop. The defendant had a perfect right to erect, upon his own land, a carriage factory and blacksmith-shop, for the purpose of carrying on his business, and might place them where he pleased, and use them as he pleased, provided he did not thereby injure the property of his neighbour. But if he placed his shop so near the dwelling-house and land of the plaintiff, and used it in such a manner as to produce a material and substantial injury to her property, such as she claimed to have proved, then the defendant would become liable for such injury.
    The jury returned a verdict in favour of the plaintiff; and the defendant, claiming that the court erred in its instructions to the jury, moved for a new trial.

      C. A. Ingersoll and Bristol, in support of the motion,
    after remarking, that, in this case, the erection by the defendant of his factory, was lawful; and also, that the use of it, thus lawfully erected, was, in itself, lawful; contended, 1. That to entitle the plaintiff to a recovery, there must have been a careless or improper use of that which the defendant had a right to use in a proper way, in consequence of which careless or improper use, the plaintiff had sustained damage.
    The rules upon this subject are, first, where a party plaintiff sustains damage, either to his person or his property, by the act of the defendant, and which act the defendant had no right to do, and which it was unlawful for him to do, in such a case, the defendant is responsible to the plaintiff for which has been sustained. In such a case, the doing of the unlawful act, by the defendant, is a wrong; and for that wrong act he is responsible to any one injured by it. But secondly, where a party plaintiff sustains damage, either in his person or his property, in consequence of an act of the defendant, and which act of the defendant was not wrong in itself, and which it was lawful for him to do, and which he had a right to do; in such a case, the defendant is not responsible to the plaintiff, for the damage which has been sustained in consequence of such act, unless the act had been committed in an unreasonable mode, and without due care, skill and diligence. Parker v. Griswold, 17 Conn. R. 288. Wadsworth v. Tillotson, 15 Conn. R. 366. Burroughs v. Housatonuc Rail-Road. Co. Id. 124. Panton v. Holland, 17 Johns. R. 92. Callender v. Marsh, 1 Pick. 418. Com. Dig. tit. Action upon the case. Nuisance, C.

    2. That it should be left to the jury to determine whether the defendant has, or has not, exercised his rights, in an unreasonable and improper manner, or whether he has, in the exercise thereof, used due care, skill and diligence. It is a question of fact, for them to determine. 6 Shep. 32. 15 Conn. R. 368. and the other cases above cited.
    3. That the charge of the court was not in conformity with these principles. Although the court told the jury, that the plaintiff could not recover, unless the damage which she complained of, was occasioned by some wrongful act of the defendant, or by some negligence or carelessness on his part; yet the court erred, in telling the jury what would be such wrongful act. The charge is, in substance, if the act done by the defendant, in its consequences, operated injuriously to the property of the plaintiff, the defendant would be liable; i. e. that the use, in itself, would be wrongful, if the plaintiff was damaged thereby—that every act committed by one man, is wrongful, if, in its consequences, another is injured by it. This is not in conformity to the authorities.

      Dutton, contra,
    insisted, 1. That from the facts in the case which were not controverted, it appears, that the defendant used his land, in such a manner, as to injure the plaintiff. Under such circumstances, an action will lie. First Baptist Society v. Schenectady & Troy R. R. Co. 5 Barb. Sup. Ct. R. 79. Lansing v. Smith, 4 Wend. 32. The People v. Albany, 11 Wend. 543. Bliss v. Hall, 4 Bing. N. C. 183. (33 E. C. L. 315.) Flight & al. v. Thomas, 10 Adol. & Ellis, 590. (37 E. C. L. 182.) Aldred’s case, 9 Co. 57. Lodie v. Arnold, 2 Salk. 458. Burnham v. Hotchkiss, 14 Conn. R. 317. per Williams, Ch. J. Morley v. Pragnell, Cro. Car. 510. 1 Sw. Dig. 521.
    2. That a smith forge has been repeatedly held to be a nuisance, when so near the property of another as to annoy him. Fish v. Dodge, 4 Denio, 311. Jones v. Powell, Hutt. 135. Bradley v. Gill, 1 Lutw. 69.
    3. That the injurious effect upon the property of another, of what would otherwise be a lawful business, renders it unlawful. 4 Denio, 316. 5 Barb. Sup. Ct. R. 86. Elliotson v. Feetham, 2 Bing. N. C. 134. (29 E. C. L. 283.)
    4. That a new trial will not be granted, when, from the facts admitted, it appears, that on such new trial, the same verdict ought to be given.
   Church, Ch. J.

The maxim, that every man must so use his own property as not to injure another, is known to every lawyer, and approved by every moralist. There is sometimes found a difficulty in its application.

We do not understand, by this rule of law, that, if a man uses his own, without fault or negligence, he is responsible to others for the consequences. But many circumstances may conspire to determine what is a proper use of one’s own property. Some things are unlawful or nuisances per se; others become so, only in respect to the time, place or manner of their performance.

The trade and occupation of carriage-making, or of a blacksmith, is a lawful and useful one; and a shop or building, erected for its exercise, is not a nuisance per se. Nor was there any complaint, in this case, that the defendant’s business was not conducted in the usual way; but it was, that the shop was erected and the business pursued, in an improper place. If this was so, that was a fault, or want of proper care in the defendant, which should subject him, if it resulted in an essential injury to the plaintiff. The plaintiff in no fault; and the question submitted to the jury, was, whether the defendant was guilty of any.

Blacksmith's shops or forges have been classed by courts, among those erections, which, by their position and use, may become nuisances. The defendant knew, when he erected his factory and shop, what effects the use of them would produce upon the near adjoining buildings and their inmates; and he must be presumed to have intended that which he might reasonably suppose would follow, and to have assumed the responsibility.

The first object of society and of the laws, should be, to protect life, health and property, and the comfortable emjoyment of them; and whatever essentially, injuriously, and unnecessarily affects these, must be wrong. They are paramount to the mere convenience of pursuing a lawful calling, in a particular place; and so the common law has considered it from the earliest times; and so the judge, on the trial of this cause, treated it. He did not say to the jury, that the factory or shop of the defendant was a nuisance; but that the plaintiff could not recover, unless the injuries complained of by her, were occasioned by some wrongful act of the defendant, or some negligence or carelessness on his part.

The defendant assumes, that, as he erected his shop and pursued his business on his own land, there could be no wrong on his part, if the business was conduced with due care and caution. Herein, we think, is his mistake; and he will find no authority to sustain that position. He had a right to erect his shop on his own land; but he must so use it, even there, as not to injure his neighbour.

Indeed, as we have said, the erection of a building on one’s own land, with a purpose of its being so used that its use will probably result in an injury to others, is, of itself, a wrongful act. And whether such would be the effect, must depend much upon the nature of the business there done, and of its proximity to the residences and property of others. And therefore, it has been uniformly holden, that the placing of a swine-stye, slaughter-house, tannery, tallow-furnace, steam-engine, smith’s forge, or other erection, which, in its use, will infect the atmosphere, produce unhealthy vapours, or offensive smells or noises, so near the dwellings of others as to materially affect them, and render them either unhealthy or uncomfortable, as residences, is unlawful and wrong, and constitutes such erections, nuisances, although upon the builder’s own land. And from this it results, that of trades which are lawful, some may be nuisances in cities, which are harmless in the country. Fowler v. Saunders, Cro. Jac. 446. Regina v. Wigg, 2 Salk. 460. Aldred’s case, 9 Co. 57. Jones v. Powell, Hutton 135. Morley v. Pragnell, Cro. Car. 410. Rex v. White, 1 Burr. 337. Fish v. Dodge, 4 Denio, 312. Meeker v. Van Renselaer, 15 Wend. 398. Baptist Society v. Rail-Road Co. 5 Barb. Sup. Ct. R. 79. 3 Stephen's N. P. 2362. 3 Bla. Com. 217. 1 Sw. Dig. 530. Hay v. The Cohoes Co. 2 Comstock, 159.

In some books, it is said, that an action will not lie for consequences resulting from the reasonable prosecution of lawful business. Broom’s Maxims, 84 2 Sel. N. P. 1091. 1 M. & S. 95. But was it reasonable that this shop, which the defendant knew would produce serious injury to the plaintiff, in its use, should be placed so near to the plaintiff’s dwelling-house? And if it was not, how can it be said, that the business was either reasonably or lawfully conducted

there? Blackstone says, that even lawful trades, producing such results as the plaintiff complains of, should be carried on, in remote places. 3 Bla. Com. 217.

It does not appear from this record, explicitly, Whether the factory of the defendant was built before or after the erection of the plaintiff’s dwelling-house; but we infer from the course of argument and otherwise, that the plaintiff’s dwelling was first used and occupied; and we are not required to consider any questions which might be suggested, by a different state of facts than the record discloses.

We think the charge of the judge was right; and that there should be no new trial.

In this opinion the other judges concurred.

New trial denied.