author: Church, Ch. J.

text:
    Waller against Graves.
    To entitle a party to a new trial for newly discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial
    But where the party did not know the existence of the evidence, and was not put upon enquiry in regard to it, until the witness by whom alone it could be fully proved, bad gone beyond his reach ; it was held, that the non-production of this evidence on the trial, did not evince the omission of reasonable diligence in the party.
    Litchfield,
    July 1850.
    If the evidence claimed to be newly discovered, is merely cumulative, a new trial will not be granted, unless the effect of it will be, to render clear and positive that which was before equivocal and uncertain.
    By cumulative evidence is meant additional evidence of the same general character, to the same fact or point which was the subject of proof before.
    Evidence of distinct and independent facts, of a different character, though it may tend to establish the same ground of claim or defence, or relate to the same issue, is not cumulative, within the rule.
    Therefore, where the ground of defence to an action for a libel, brought by A against B, was, that the libellous writing, after it was signed by B, and before publication, was altered, by the insertion therein of material words, without the knowledge or approbation of B ; and on the trial, C, who drew up the writing, testified, that the writing, as published, was not like the paper written by him and signed by B, in that it did not contain the words in question; and it was afterwards discovered, that D, without the knowledge or consent of either B or C, inserted those words; on a petition for a new trial, brought by B, it was held, that the testimony of D, showing this fact, was not exceptionable as cumulative evidence.
    This was a petition for a new trial of a cause, which had previously come before this court. Graves v. Waller, 19 Conn. R. 90. For the nature of the action and the declaration, it is sufficient, for the present purpose, to refer to the report of that case.
    On the trial of the cause to the jury, it became a material question, and one on which the determination of the cause depended, whether the words “ rapacious creditor,” were in the original manuscript, when it was handed to the editor of the New-Milford Republican, the news-paper in which it was alleged to have been published, or were inserted in the manuscript or published in the news-paper, by some person, unknown to the petitioner, and without his knowledge ; the plaintiff in that suit claiming the former branch of the alternative, and the defendant the latter.
    The plaintiff introduced evidence tending to prove his claim. The defendant, on the other hand, introduced Sylva-nus Merwin, as a witness, who testified, that he drew up in part the certificate on which the action was founded ; that he asked Waller if he would sign it ? that Waller asked him what it was ? that he then read it over to him ; that he made no objection to signing it, and said it was true ; that the words “ rapacious creditor,” were not in it; that he did not tell
      Waller, that he intended to publish it; and that he, Merwin, sent it to the publisher of the news-paper, but did not authorize the continuance of it the second week ; that he saw the piece, soon after it was published, and discovered that it was different from the manuscript when sent to the publisher.
    On the hearing of the present petition also, Merwin was a witness, and testified, that he did not authorize any one to make any other alterations in the manuscript than such as were necessary to make its language grammatical.
    It was also proved, on the trial of the original action, that John Gaylord, at the request of the plaintiff in that action, went to the defendant Waller, with a paper containing the publication claimed to be libellous, and calling his attention to it, asked him if it was true, and if he signed it, and if he authorized its publication ? And the witness stated, that Waller answered these questions in the affirmative, and that in the course of the conversation, he read the piece to Waller.

    It appeared also, that Joseph K. Averill, referred to in the present petition as the witness who will testify, that the words “ rapacious creditor,” were inserted in the libellous publication, without the consent or knowledge of Waller, continued to reside in the town of New-Milford from the time of the publication to the fall of that year, (1846,) when he removed to the town of Litchfield, where he remained until about the 1st of May, 1847, previous to the trial, when he left Litch-field, without the knowledge of the petitioner, and has ever since, with the exception of a short residence in the city of Hartford, continued to reside without the limits of this state, and in parts unknown to the petitioner.
    The deposition of Averill as to the alteration of the original manuscript, was annexed, and made part of the finding of the court in the case. In that deposition, the deponent testified, that being the publisher of a weekly news-paper in New-Milford, entitled The New-Milford Republican, he published in that paper, in April or May 1846, a writing signed by Homer Waller of New-Milford, reflecting somewhat severely on the character and person of Jedediah Graves, father-in-law of Sylvanus Merwin; that this writing came to the deponent’s office in the hand-writing of said Merwin ; that the deponent was instructed, by a private note from
      Merwin, to make such alterations in the body of the writing, as he saw fit, to make it read grammatically, which he did accordingly ; that the words “ rapacious creditor,” and some others, were inserted by the deponent, without the consent or knowledge of Waller, or even his approbation ; and that the substance of the whole writing was materially changed from what it was when it was received by him for publication, without authority from Waller for so doing.
    The case was reserved for the advice of this court.

      J. H. Hubbard and Todd, for the petitioner,
    contended, 1.That the evidence was newly discovered and material. This appears from the finding of the court.
    2. That if the petitioner could have availed himself of such newly discovered evidence, the verdict would have been the other way.
    3. That the testimony of Averill is not obnoxious to the objection that it is cumulative; because it is of a different kind and character from any that was adduced on the trial.
    4. That there was no want of diligence, on the part of the petitioner.

      Seymour and H. B. Graves, for the respondent,
    contended, 1.That the petition did not, on its face, disclose a case entitling the petitioner to the relief sought; because, under the circumstances of the case, he was responsible for the libel-lous publication, even if the words “ rapacious creditor,” were inserted, without his direction or knowledge. Those who acted in this business, acted in his behalf. He set the ball in motion, and did not stop it, when he might have done.
    2. That the testimony of Averill is not a ground for a new trial, because it is merely cumulative. On the trial, Merwin testified substantially to the same facts as those stated in Averill’s deposition. Vernon & al. v. Hankey & al. 2 Term R. 113. Steinbach v. Columbian Insurance Co. 2 Caines, 129. Sawyer v. Merrill, 10 Pick. 16. Parker v. Hardy, 24 Pick. 246. Brown v. Stacy, 5 Arkan. R. 403. Commonwealth v. Flanagan, 7 Watts & Serg. R. 415.
    3. That the court will not grant a new trial for newly discovered evidence, unless the evidence is such that on a new trial, a different result would be produced; which does not appear in this case. Norwich and Worcester Rail-road Co. v. Cahill, 18 Conn. R. 484.
    4. That the petitioner is chargeable with negligence, in not obtaining the testimony of Averill upon the trial. The petitioner and Averill were residents of the same town, months after the libel was published, and the suit was brought.
    5. That the deposition of Averill is wholly unworthy of credit; he being a witness volunteering to publish his own disgrace. By his own testimony, he committed forgery, under an authority to correct bad grammar.
   Church, Ch. J.

The most aggravated portion of the libel complained of, is that by which the plaintiff, Graves, was exposed to public reproach and contempt, as having, in the character and spirit of a rapacious creditor, shamefully abused Sylvanus Merwin, his son-in-law, and his wife and children.

This charge was libellous, and, in a good degree, gave sting and character to the whole publication, and was the chief ground of the plaintiff’s claim to the recovery of damages at the trial, and upon which the issue of the cause was supposed much to depend, as we infer from the allegations in this petition, and found by the court to be true.

The ground of this application for a new trial, is, that from evidence newly discovered, the petitioner, Waller, can prove, that the language “ rapacious creditor,” was never used by him, in composing the article, nor approved by him, but without his knowledge, was inserted by the editor of the newspaper in which it was published, and for which unauthorized act, he ought not to be made responsible. If such is the real truth, and if the jury had so believed upon the trial, we think the result would and should have been a different one.

There is, and there should be, a reluctance in courts to disturb the verdicts of juries, unless in cases where it is most manifest, that either the law has been perverted or mistaken, or that the losing party has not had a full and impartial hearing. It is easy for a party to claim the discovery of new evidence, and it is hard that his opponent should be compelled to submit to the expence of a second trial, when such claim is either unfounded, or the result of negligence in the first preparation. We feel all this, in the present case, and with much hesitation have formed the opinion now declared.

To entitle a party to a new trial for newly discovered evidence, it is indespensable that he should have been diligent in his efforts fully to prepare his cause for a trial, at first; and if the evidence now relied upon could have been known before the trial, by great diligence, and was not, a new trial will not be granted. Here has been our greatest doubt, in this case. But it appears, that the libellous paper was drawn up chiefly by Sylvanus Merwin, and Waller cannot fairly be presumed to have known or noticed any peculiarity in its phraseology. In hearing it read, he was probably more intent on the narrative of facts, than on the language used in the composition, and therefore, was not put upon enquiry in regard to it, until Averill, the editor, had gone beyond his reach, Averiil had not disclosed the facts which he knew, to any body, and while in the vicinity, had every motive to conceal his knowledge of the matter. Under these peculiar circumstances, we cannot say, that Waller omitted any reasonable diligence in preparing his cause for trial.

So if the evidence now claimed to be newly discovered, is merely cumulative evidence, we cannot grant a new trial, unless the effect of it will he to render clear and positive, that which was before equivocal and uncertain.

By cumulative evidence is meant additional evidence of the same general character, to the same fact or point which was the subject of proof before. Watson v. Delafield, 2 Caines, 224. Reed v. McGrew, 1 Hammond, 386. Smith v. Brush, 8 Johns. R. 84. Pike v. Evans, 15 Johns. R. 210. The People v. The Superior Court, 5 Wend. 114. S. C. 10 Wend. 285. Guyot v. Butts, 4 Wend. 579. Gardner v. Mitchell, 6 Pick. 114. Chatfield v. Lathrop, Id. 417. Parker v. Hardy, 24 Pick. 246.

The fact in dispute, on the trial of this cause, was, whether the words, " rapacious creditor," were a part of the libellous writing, when it was signed by Waller. That they were not, was the most material ground of defence; and this ground was supported, by the testimony of Merwin alone, who wrote the article originally, and who swore that these words were not then in it.

From some of the cases on this subject, it may perhaps be inferred, that courts have supposed all additional evidence to be cumulative merely, which conduced to establish the same ground of claim or defence before relied upon, and that none would be available, for a new trial, unless it disclosed or established some new ground. But this does not seem to us to be the true rule, as recognized in the best considered cases.

There are often various distinct and independent facts going to establish the same ground, on the same issue. Evidence is cumulative which merely multiplies witnesses to any one or more of these facts before investigated, or only adds other circumstances of the same general character. But that evidence which brings to light some new and independent truth of a different character, although it tend to prove the same proposition or ground of claim before insisted on, is not cumulative within the true meaning of the rule on this subject : as in the present case, Merwin testified only, that the libel, as printed and published, was not like the paper written by him and signed by Waller, in the particular referred to. But now appears a new fact, entirely independent of the testimony of Merwin-one, which did not exist, at the time Merwin speaks of; which is, that another person, without the knowledge or consent of either Waller or Merwin, inserted the objectionable words into the article, which appeared in the newspaper.

Suppose a question on trial to be, whether the note of a deceased person has been paid, and witnesses have been introduced testifying to various facts conducing to prove such payment, and after a verdict for the plaintiff, the executor should discover a receipt or discharge in full, or had discovered that he could prove the deliberate confession of the plaintiff of the payment of the note. There could be no question, in such a case, but a new trial should be granted, although the new facts go to prove the former ground of defence.

But there is another reason, why we believe this new evidence is available. Merwin testified, that the words “ rapacious creditor,” were not in the paper signed by Waller; the testimony of John Gaylord conduced strongly to show that they were ; and probably from this conflict of proof, the jury disregarded this ground of defence. This new evidence would now come in, to render certain a turning point in the case, which had been left in doubt before. 1 Sw. Dig. 787. Watts, adm’r. v. Howard, adm’r. 7 Metc. 478.

We shall therefore advise a new trial.

In this opinion, Waite, Storrs, and Hinman, Js. concurred.

Ellsworth, J. concurred in the principles advanced in such opinion, but did not think them applicable to the present case ; and for that reason, would not grant a new trial.

New trial to be granted.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Smith against Scott’s Ridge School District.
    In an action on a building contract, brought by the builder, to recover the compensation provided by the contract, it is as necessary to show performance, as in actions on other contracts; but the law regards a substantial performance as sufficient. Therefore, unintentional and unimportant variations from the specifications of the contract, by which the building is not injured, will not defeat a recovery.
    In such action it was claimed, by both parties, that there was a special contract for the building of a district school-house, but they differed as to the terms of the contract, the plaintiff claiming, that he was to do only the carpenter and joiner work and furnish materials, while the defendants claimed that the contract included the mason work, as well as the carpenter and joiner work ; that the work and materials were to be in conformity to a certain list of specifications, and that the building was to be completed by a certain time; the parties differed also,as to the performance of the contract, except that the plaintiff admitted he had not done the mason work. The court thereupon charged the jury, in the first place, that if the contract was, as claimed by the defendants, a contract to complete the whole house, including the mason work, the plaintiff could not recover; but if the contract was as claimed by the plaintiff, then he could recover the contract price for his work and materials, if he had substantially performed his contract; but if he had not so performed it, then he could not, in any event, recover the contract price. The court then charged the jury, that if they should find, that the defendants agreed with the plaintiff to do the carpenter and joiner work only, and furnish materials, and that he had done the work and furnished the materials, [substantially] according to his contract, that he had built the house on the spot designated by the defendants, and they had suffered him to goon, without objection, in the building of the house until its completion ; and if the house was reasonably fit for the purposes for which it was erected; the plaintiff might recover what it was reasonably worth to the defendants, for such purposes, although there was a special contract, which had not been strictly performed, in regard to the quality of the work and materials. Held, 1. that the first part of the charge was wrong, because it did not meet the claims of the defendants, and might well mislead the jury ; 2. that the latter part of the charge was incorrect, in assuming that the building, un her the circumstances stated, was necessarily bene- ficial to the defendants ; 3. that the designation of the side by the defendants, Fairfield, equivalent to a recognition of it by them, as their land, would not make the building beneficial to the defendants. Where
    Fairfield,
    August, 1850
    the defendants, in such case, warned and held a school meeting, in such house, after its erection; at which meeting they voted not to accept of the budding, nnd voted also, to have a summer school; it was held, that such use of the building did not amount, loan acceptance thereof. This
    was an action of assumpsit for work performed and materials furnished, in the building of a school-house for the defendants. The general issue was pleaded, with notice of special matter to be given in evidence. The cause was tried at Fairfield, October term, 1849. On
    the trial, the plaintiff claimed to have proved, that he was employed, by the building committee of the district, to build a school-house, at a place selected by them for that pur- pose, under a contract with them, sanctioned by the district; by which contract the plaintiff was to do the carpenter and joiner work, and to furnish materials therefor, at the price of 200 dollars. The
    The defendants claimed, that the work done and materi- als found, by the plaintiff, were done and found under an agreement with the building committee to build the school- house according to the following specifications: 23 feet long, by 17 feet wide ; the sills to be white oak or white chesnut, 6 by 6 ; the posts to be 9 feet, 6 by 6; the end joists to be 5 by 7 ; the middle girt, 7 by 8 ; the studs to be 2 by 4, and 16 inches from centre to centre ; the sleepers to be 2 feet from center to center ; the plates to be 6 by 51/2; 12 bra- ces, 41/2 by 3 ; rafters, SO feet long, 21/2 by 4; the siding to be tally boards, free from shakes, knots and sap; the lap 11/4 inches, and rubbed down 11/2 inches ; the roof to be of first- rate pine shingles and jointed, to be laid to the weather 41/2 inches, with ridge boards; window frames 11/4 inches; win- dow sills and caps, 2 inches ; 6 windows, 2 on eachside, 2 on the end ; 12 lights, 7 by 9, each; the sash to have 2 coats of paint; 4 lights over the door; the floor to be yellow rock or white oak, one inch thick, and from 6 to 10 inches wide, and to be grooved ; to have window shutters to all the windows ; an entry, 4 feet in the clear, and ceiled up, all around ; the vol. 20. 40 the height between floor and wall, 8 feet; a pantry with shelves, 4 by 5 feet, parted off in the entry ; the cieling round to be as high as the writing desks ; 3 doors, made with batting, hung with butts and screws ; the outside door to have 3 four-inch butts, with lock and key, and all essential trimmings ; a frieze board, under the caves, from 10 to 12 inches, and a plain weather board ; to be done in a workman-like manner ; lath and plaster with two coats and white-wash.
    The defendants also claimed to have proved, that it was a part of the contract, that the school-house should be completed by the 1st of June 1847 : and that the plaintiff was to do the whole of the work for 220 dollars.
    All these claims of the defendants were denied by the plaintiff, who claimed, that by the contract, he was to do the carpenter and joiner work only, for 200 dollars ; and that one Wade was, by express agreement with the committee, to do the mason work, for 20 dollars.
    The plaintiff did not claim, that he had done the mason work, but claimed that he had done all that by his contract he was to do, in all essential particulars.
    The defendants claimed, that the rafters were not according to the contract; and it was proved, and not denied, that the floor was not grooved, but was battened ; and that the rafters were made of round sticks, hewed only on one side. They further claimed, that the carpenter work and materials varied, in many essential particulars, from the contract, as they claimed it to have been ; that the work was not done in a workmanlike manner ; and that it was not completed by the 1st day of June 1847 ; that the key of the house was never delivered to them; and that the possession of it had been retained by the plaintiff.
    The plaintiff then offered evidence to prove, that the rafters were sufficient for the purpose, and that a battened floor was in fact better than a grooved floor; that no particular time was fixed for the completion of the building, but that the committee only expressed a wish that it might be done about or near the 1st of June ; that he did in fact do all that by his contract he was to do, within four or five days of that time ; and that upon such completion of the building, he tendered the key thereof and offered the possession thereof, to the committee, which they refused to accept.

      On the 14th of June 1847, the committee of the district warned a meeting of the inhabitants, to be held “ at the new house built for said district,” on the 21st of that month, for the purpose of accepting such house; also, to make arrangements for a summer school, and to transact any other business proper for the meeting to do. A meeting was accordingly held, at the time and place appointed, when the following votes were passed : “A motion being made to accept of the house, it was lost. Voted, that we will not accept of the house. Voted, that we will have a summer school.”
    The plaintiff also claimed, that he was employed, by the building committee, and by the district, to build said house, on the spot on which it was erected ; and that these acts amounted to an acceptance of the house.
    He further claimed, that if he had, in all essential particulars, fulfilled his contract, he was entitled to recover the sum of 200 dollars, with interest; and that, if he had not, in all particulars, so completed it, yet if he had built for the defendants, a school-house suitable for the purposes of a schoolhouse for the district, which had been accepted by them, or become beneficial to them, he was entitled to recover what it was reasonably worth ; and he requested the court so to instruct the jury.
    The defendants claimed, that if the house never came into the possession of the district, in any other way than by being built on the spot where it was located, although the key had been tendered to them; and if it was not built essentially according to the contract, the plaintiff could not recover; and further, that if the house had not been done essentially according to the contract, and had been of no benefit to the defendants, the plaintiff could not recover.
    The court charged the jury, that if the contract was, as claimed by the defendants, a contract to complete the whole house, including the mason-work, the plaintiff could not recover, inasmuch as it was admitted, that the mason-work had not been done; but if the contract was, as claimed by the plaintiff, then he could recover the contract price for his work and materials, if he had substantially performed his contract; but if he had not performed it, then he could not, in any event, recover the contract price for his work and materials.
    The court further instructed the jury, that if they should find, that the district agreed with the plaintiff to do the carpenter and joiner work only, and to furnish the materials therefor, and that he had done the work and furnished the materials pursuant to his contract ; that he had built the house on the spot designated by the committee ; and that the committee and the district suffered him to go on, without objection, in the building of the house, until its completion ; and if they should find that the house was reasonably fit for the purposes for which it was erected ; the plaintiff might recover what the house was reasonably worth to the district for the purposes of a school-house, although there was a special contract, which had not been strictly performed, in regard to the quality of the work and materials; and that in such case, if the work and materials were inferior to such as were provided for in the contract, the damages should be reduced, to the extent at least of the difference between such inferior work and rnaterials,and the work and materials provided for in the contract.
    The court further instructed the jury, that if the house was reasonably fit for the purposes of a school-house, it would be beneficial to the district for those purposes ; but if it was so unskillfully erected, and was made of such inferior materials, as to be unfit for the use of the district, as a school-house, the plaintiff" could not recover.
    The jury returned a verdict for the plaintiff, with 190 dollars damages ; and the defendants moved for a new trial, for a misdirection.

      Dutton and N. L. White, in support of the motion,
    contended, 1. That the work done and materials furnished, having been done and furnished by the plaintiff, under a special contract, which, it is conceded, he has not performed, or shown an excuse for non-performance, he cannot recover, Londre-gon v. Crowley, 12 Conn. R. 558.
    2. That the charge of the court, that if the plaintiff had built the house on the spot designated by the committee, and it was reasonably fit for the purposes of a school-house, it would be beneficial to the district for those purposes, and the plaintiff would be entitled to recover, was erroneous. The plaintiff had a right to remove the building, and tire defendants were not bound to accept it. At any rate, the question whether they were bound to accept it, should have been left to the jury. The court could not say, as matter of law, that it was beneficial. Ellis v. Hamlen, 3 Taun. 52.
    3. That from facts in the case, either undisputed, or claimed and not submitted, it appears, that the house has been of no benefit whatever to the district. The plaintiff locked it and has the key in his possession ; and it has never, in any manner, been used by the district, except when they met in it to examine it, and refused to accept it.

      Hawley and Booth, contra,
    contended, 1. That the charge of the court to the jury, in relation to the right of the plaintiff to recover what the house was reasonably worth, was entirely unexceptionable. Bul. N. P. 139. Chitt. Cont. 451, 2. (in notis.) 569, 70. Leeds v. Burrows, 12 East, 1. Smith v. First Congregational Meeting-house in Lowell, 8 Pick. 178. Hayward v. Leonard, 7 Pick. 181. Hollingshead v. Mac-tier, 13 Wend. 276. Dubois v. Delaware and Hudson Canal Co., 4 Wend. 285. Rees v. Lines, 8 Car. & Pa. 126. (34 E. C. L. 324.) Linningdale v. Livingston, 10 Johns. R. 36. Van Deusen v. Blum, 18 Pick. 229. 231. Cook v. Munstone, 1 New Rep. 355. Tuttle v. Mayo, 7 Johns. R. 132.
    2. That the charge of the court relative to the amount of damages the plaintiff was entitled to recover, was correct. Hayward v. Leonard, 7 Pick. 187.
    3. That the district, by warning and holding the meeting of June 1847, in the school-house, virtually accepted it, and waived all exceptions to the non-performance by the plaintiff of the special contract.

       There were some other points discussed, by the counsel on both sides, which it is not necessary to mention.

   Hinman, J.

The plaintiff, in this case, claimed to recover for work and labour done, and materials furnished, in building for the defendants a school-house. Both parties claimed, that there was a special contract, under which the work was undertaken ; and, although they differed widely in regard to the terms of it, yet, it does not seem to have been questioned, that it was of such a character, as to make the plaintiff’s compensation to depend upon performance, on his part, of the agreement, such as it was,

The plaintiff claimed, that he had performed his contractS The defendants insisted, that he had not; but that the work and materials varied, in many essential particulars, from the contract, as they claimed it ; particularly, that the work was not done in a workman-like manner ; that the materials were not such as the contract called for ; that some of the ~vork was left wholly undone ; and that it was not completed within the time, when, by the terms of the contract, it was to have been done. The defendants, also, denied, that they had ever accepted of the house; or that it had ever, in any way, come into their possession or use. And they claimed, that if it had not been built essentially according to the contract, the plaintiff could not, under these circumstances, recover any thing for what he had done.

There is no real difficulty as to the law on such a subject as this.

There is no difference in regard to the duty of performance, arising from the fact of its being a building contract. Contracts of this description are as binding as any other; and where a builder's compensation is made dependent on his performance, it is both just and legal, that his non-performance should deprive him of it. Good faith requires the performance of all contracts. If it be said, that it is very difficult for a builder literally to comply with all the minute specifications in a contract of this description, the answer is, the difficulty, if there be one, the builder takes into consideration when he makes his contract; and if it is such that he cannot comply with it, it is his folly to enter into the agreement. But there is no real difficulty. The law looks at the substantial performance; and if in good faith, and unintentionally, he departs, in some trifling particular, from the literal terms of the agreement; if it appear that the variation is unimportant ; no doubt he would be entitled to his compensation. 1 Saund. 216, n. 2. On this ground, in this case, the shape of the rafters, which, the defendants claimed, varied from the specifications in the contract, and, perhaps, the neglect of the plaintiff to groove the floor, and in lieu thereof, battening it, might be overlooked, as vaiiations too small to be noticed, if it was found, that the building was not injured in consequence of them. But if he has voluntarily departed from the terms of the contract, in any material or essential particular, or has not performed it within the time stipulated; and performance in these respects is made a condition on which he was to receive his compensation; then, by the terms of the law, which he has voluntarily prescribed for himself-his contract-he has no right to call for any pay.

The judge who tried the cause, in one part of his charge, recognizes these principles fully. He told the jury, that as it was admitted the mason-work had not been done, if the contract was, as claimed by the defendants, a contract to complete the whole house, including the mason-work, the plaintiff could not recover. But it was not, alone, in regard to the mason work,that the parties differed as to the terms of the contract. And, although the court might not have intended to instruct tha jury, that they would be authorized to render a verdict for the plaintiff, if he had voluntarily abandoned the contract, and refused to complete it, in any material particular; yet, we think, the manner in which the whole case was presented to them, such, that they might rensonably so have understood the charge.

The defendants claimed, that the work and materials va ned from the contract, in many essential particulars; and that, if the house had not been built, essentially, according to the contract. and had been of no benefit to the defendants, the plaintiffcould not recover.

The court did not meet this claim, or sanction it, in any other way than in its instruction to them in regard to the mason-work. We think this was clearly wrong. The defendants were right in this claim; and the neglect of the court to notice it, especially when taken in connexion with the instruction given in regard to the plaintiff's omission to complete the mason-work, might well have led the jury to suppose, that his omission of other important parts of the work, or his imperfect and unauthorized completion of it, would not subject him, and his cause, to a like result.

But the court went further than this. The jury were instructed, that if they found, that the plaintiff's contract was to do the carpenter and joiner work only, and to finish the materials; and that he had done it, and had built the house on the spot designated and sanctioned by the district; and had been suffered to go on and complete the house, without objection ; and if the house was reasonably fit for the p~rpo~e for which it was erected ; the plaintiff might recover what the house was reasonably worth, although there was a special contract which had not been strictly performed, in regard to the quality of the work and materials. This part of the charge was no doubt intended to rest on the ground, that where a party has performed work and furnished materials for another, though not according to the terms of a special agreement exisling between them, he may, in certain cases, recover a quantum meruit for the work and materials thus done and furnished ; and if the work and materials, under these circumstances, have been accepted, or have been beneficial to the party, the principle seems to be correct. Smith v. First Congreational Meeting-house in Lowell, 8 Pick. 178.

The error of the court, in this part of the charge, was, in assuming, that, if the building was on the spot designated by the district, and the plaintiff had been suffered to go on and build there, without objection, the house was necessarily beneficial to the district, if it was reasonably fit for the purpose for which it was erected. So far as the charge recognized the plaintiff's claim, that the building, being on the spot designated by the district, it was the same as if it was on the district's land, it was, undoubtedly, correct. But it was incorrect to say, that the house was beneficial to the district, because it was upon the district's land, or, upon land on which they had directed it to be budt. If it had been accepted by the district, then, no doubt it would be beneficial to them and they ought to pay what it was reasonably worth; or, if they had interfered, or should interfere, to prevent the plaintiff from removing it, then, it would seem, they ought to pay for it, But, until they have accepted it, or made use of it, or,, at least, have made claim to it, as being on their land, and have interfered to prevent the builder from removing if, they ought not to be compelled to pay any thing. The buifding, under such circumstances, would be one which they had never contracted for, and which they had never agreed to take; and to compel them to pay, would be making a contract for them, contrary to their wishes.

The district committee warned a district meeting at the new school-house, for the purpose of accepting it; and the meeting, thus warned, was held, and voted not to accept it; and, at the same meeting, they voted, that they would have a summer school. The plaintiff claims, that these acts amount to an acceptance of the house. It is clear, that the act of the committee, in warning the meeting at the new house, was not intended to have that effect; because it was a call upon the district collectively to act upon the subject. The district as clearly did not intend to accept it; because they expressly voted they would not accept it.

If, then, there is any thing that can amount to an acceptance, it is, the use they made of the house in holding a meeting there ; but the meeting was held for the purpose of accepting, or of refusing to accept, as it might see fit. A meeting for this purpose, we see no impropriety in their warning and holding at the new house. It might well enough be, that they chose to have the meeting in the new house, for the reason that it would be more convenient for the members of the district, each, to examine the house, and determine for himself, whether it was proper to accept it, rather than to appoint a committee to make the necessary examination. We do not think this fact, of itself, sufficient for the court to say, that it amounts to an acceptance. At most, it seems to amount to nothing more than evidence to go to a jury on the question of acceptance.

This being so, it is impossible for the court to say, as matter of law, that there was such an acceptance as rendered the district liable to pay a quantum meruit for the building.

For these reasons, we think the court erred, in submitting the case to the jury; and a new trial is, accordingly, advised.

In this opinion the other judges concurred.

New trial to be granted.


text:
    Johnson against Belden and others.

      Fairfield,

    August, 1850.
    Questions of advanced portion are always questions of intention, and generally turn on the evidence by which such intention is to be proved.
    The mere relationship of parent and child, is not sufficient to decide a question of this nature.
    Nor is the mere fact that a parent has delivered chattels or advanced money to or for his child, sufficient for this purpose.
    Nor is equality of patrimonial estate sufficient; as in many families a judicious discrimination is equitable.
    Where a father furnished to his married daughter articles of household furniture to the amount of 538 dollars, and entered them on his account book, declaring, at the same time, that he did not do this, for the purpose of making a charge, but for his own gratification; and he afterwards expunged the entry thus made; it was held, that there was not sufficient proof of an advanced portion.
    Where a father advanced to his son the sum of 1100 dollars, to establish him in business, and afterwards declared to a friend, that what his son had had of him was a free gift; it was held, 1. that such declaration was admissible evidence on the question of advanced portion; 2. that no advanced portion appeared in the ease.
    This was an appeal from the decree of the court of probate for the district of Newtown, made in the settlement of the estate of John Johnson, deceased, who died intestate. At the time of his death, his only surviving child was David H. Johnson, the present appellant. He left, however, other heirs, viz. Susan J. Belden, the daughter and only child of Cornelia Belden, deceased ; also Cornelia J. Belden, Clarissa Belden, David Belden and John Belden, heirs at law of Susan Belden, deceased ; said Cornelia Belden and Susan Belden, being daughters of the intestate, who died before their father. By the decree appealed from, the sum of 538 dollars, 51 cents, charged as advanced portion, to Cornelia Belden, was disallowed; and the sum of 1100 dollars, charged, as advanced portion, to David H. Johnson, the appellant, was allowed.

      Cornelia Belden, at the time of her marriage to David H. Belden, Esq., received from her father, articles of household furniture of the value of 538 dollars, 51 cents, which then became the property of her husband. At the time of the delivery of these articles to her, the intestate entered them on his account book, as “ articles furnished for his daughter,
      Cornelia.” At the time of making this entry, he informed her husband, that he did not enter the articles for the purpose of making a charge, but for his own gratification. Some time previous to his death, he expunged this entry from his book, so that no trace thereof can now be found.
    The intestate, in his life-time, advanced to his son, the appellant, to establish him in business, the sum of 1100 dollars in cash; which sum has never been repaid or accounted for ; but it was not charged to him, by his father ; and there is not, nor has there ever been, any evidence of its having been paid to him, except his parol acknowledgment, that he received it from his father, for the purpose of establishing him in business.
    The intestate, in a conversation which he held with Jacob Beers, Esq., in the year 1843, when he was speaking upon the subject of making a will, said, that his son, David II. [the appellant] was all the child he had living; that he had got into business, and he hoped he would be able to get a living ; that whatever he had had of him was a free gift, and was not to be reckoned to him in the settlement of his estate. This evidence was objected to, by the appellees, but was received subject to the opinion of this court. If the evidence was admissible, then the superior court found, that it was never the intention of the intestate, that said 1100 dollars should be charged or reckoned to his son as advanced portion.
    The questions of law arising in the case were reserved for the advice of this court.
    Dutton and Sturges, for the appellant,
    contended, 1. That the furniture delivered and charged on book to Cornelia Belden, was advanced portion. It was property advanced, by way of “ settlement or portion,” and is to be reckoned as part of her share of her father’s estate. Stat. 357.§ 47. If they had been intended as a gift simply, they would not have been entered as they were; and it is apparent that the intestate did not expect she would pay for them. They constituted neither a gift nor a debt. Bulkley & al. v. Noble, admr. 2 Pick. 337. In re Ashley, 4 Pick. 21. The declaration made to Cornelia’s husband, is not inconsistent with the appellant’s claim. See 1 Williams on Exrs. 121. 124, 5.

      2. That the money delivered to the appellant, to establish him in business, was a mere naked gift, and not an advancement. 4 Kent’s Com. 413, 14. 1 Sw. Dig. 458.
    3. That the declaration made by the intestate to Jacob Beers, was admissible. Wallace v. Pomfret, 11 Ves. 547, 8. Clark v. Warner, 6 Conn. R. 355. 360.

      Hawley, for the appellees,
    contended, 1. That the articles furnished by the intestate, to his daughter, Cornelia, were not to be considered as advanced portion. In the first place, though he made a memorandum of them, he made no charge whatever. The entry did not show, that she was made debtor for them ; or that he intended she should account for them, in any way. But secondly, it appears clearly, that he did not intend them as part of his daughter’s inheritance. He declared, at the time, that he made the entry for his own satisfaction merely; and the act of expunging it afterwards, without making any entry elsewhere, is strong evidence that he did not intend they should be remembered at all against his daughter.

      2. That the testimony of Jacob Beers was inadmissible for the purpose for which it was offered. In the first place, the declaration was vague and indefinite, referring to no specific thing which the intestate had furnished his son ; nor does it appear, that the 1100 dollars was not furnished after that time. Anything furnished to a child already engaged in business, may properly be said to be for his establishment in business. Secondly, the declaration was made in reference to the making of a will, never executed, in which, it is to be presumed, if the design had been accomplished, he would have made a just distribution of his estate, and would have settled all these matters, by the terms of that instrument. Thirdly, if the declaration was made after the money was furnished, it could not be admitted, because it would affect the interests of third persons, and diminish the shares of his other children. Hatch v. Straight, 3 Conn. R. 31.
    3. That if the testimony of Mr. Beers was admissible, still, considering the circumstances under which the declaration was made, and the purpose for which the money was advanced, the law will treat it as an advanced portion. This will make the distribution more equal, and consequently, more equitable.
   Church, Ch. J.

Questions of advancement generally arise in the settlement of intestate estates. If an estate be testate, the will of the testator is the only law of distribution. But where wills exist, they sometimes dispose of the estate in reference to former advanced portions: in such cases, the law of advancements must also be consulted. Porter & ux. v. Collins, 7 Conn. R. 1. Coveil v. Thayer, 5 Metc. 250. Thompson v. Carmichael, 3 Sand. Ch. R. 120.

Questions of advancement, also, are always questions of intention; and the difficulties in solving them, are generally found in the kind of evidence, by which such intention is to be proved.

In some cases, it has been considered, that this intention, if not expressed, shall be inferred, as matter of law, from the character of the act; as where a parent conveys land to the child, from a consideration of love and affection only; and if a parent pay the consideration money for land or for stocks, conveyed by another to the child. In these, and perhaps other cases, the presumption of advancement may be rebutted. But in such cases, or in others, where the law, as in Massachusetts, requires this intention to be expressed, by the intestate, in writing, it has been held, that no subsequent parol declarations of the parent will con-troul the original intention. Straight v. Hatch, 3 Conn. R. 31. Sidmouth v. Sidmouth, 2 Beavan, 447. Bulkley v. Noble, 2 Pick. 337. Meeker v. Meeker, 16 Conn. R. 383. Partridge v. Havens, 10 Paige’s Ch. R. 618.

In this state, we have no statute regulations on this subject ; and whether a child has been advanced or not, is here often a very perplexing question in the settlement of estates, and one which creates no little family dissension.

The existence of the relationship of parent and child does not furnish sufficient ground to decide, that the delivery of a chattel or the advancement of money, by the one to the other, was intended as a child’s portion. Unexplained, this might as well be treated as a debt or a gift, as an advancement, as if it had been between other persons. A parent may be generous and liberal to his child, without placing him under future accountability, either to himself or to his estate; and he may discriminate in his favours, between his children, if he pleases. The law, to be sure, supposes, in ordinary cases of family arrangement, that equality is equity ; but no person so well as a parent, knows, how such equality and such equity can best be effected and promoted among his children. In many families, a judicious discrimination is equity.

Some have supposed, that in the case of Clark v. Warner, 6 Conn. R. 356. this court intended to say, that every con-, siderable gift from a parent to a child, must be treated as advanced portion, and be brought into hotchpot. We do not believe this was meant; and we do not recognize such a principle.

Where personal chattels are delivered, by a parent to a child, or moneys are advanced to him or for him, we think, there should be satisfactory evidence besides the mere delivery or advancement, to constitute them chargeable advancements or part portion. There must be evidence of such an intention beyond the unexplained act. And in such cases, the acts and declarations of the parent, either concurrent or subsequent, may be shewn, as evidence, as well of his original intention, as of his final purpose. And so we suppose the court, in the case of Clark v. Warner, intended by saying, “ Had the deceased explicitly declared, that they were not to be deemed advancements or part portion, the case might have been different;" referring here, as they do, to a subsequent declaration.

On this appeal from probate, it appears, that the intestate, John Johnson, furnished for his daughter, Cornelia, the wife of David H. Belden, Esq., articles of household furniture, to the amount of 538 dollars, 51 cents, and entered them on his account book, and, at the same time, said, that he did not do this, for the purpose of making a charge, but for his own gratification. This entry was not made on a book or paper where the intestate kept a memorandum or an account of children’s portions, thus affording evidence of his intention to make an advanced portion ; but upon his book of debtors’ accounts : no inference, therefore, can be drawn from this, in support of this entry, as a charge of an advancement. Nor is such an intention to be presumed from the fact, that the articles delivered, consisted of furniture for housekeeping ; as these are as proper subjects of gift as of advancement. But, as this entry upon the book, was accompanied by the declaration of the father, that he meant nothing by it, but his own gratification, it furnishes no proof of intention at all. We shall advise, therefore, that the decree of the court, disallowing said sum of 538 dollars, 51 cents, as a charge of an advanced portion against said Cornelia Belden, be affirmed.

The court of probate allowed the sum of 1100 dollars against David H. Johnson, a son of the intestate, and ordered that it be deducted from his distributive share of the estate, as advanced portion. As to this, the intestate never made any account, entry or memorandum whatever. He advanced the money to his son, to set him up in business, as he, the said David, acknowledged ; and this was the only proof of any such advancement; and this, we think, was altogether insufficient to fix that sum upon him, as a part portion of his father’s estate. But if there had been any doubt in regard to it, the subsequent declaration of the intestate to Jacob Beers, Esq., that this sum was intended by him as a gift-a free gift-was proper evidence, and sufficient to prove that it was not an advancement.

The decree of the court of probate, declaring the sum of 1100 dollars to be an advancement, should therefore be reversed; and we shall so advise the superior court.

In this opinion the other Judges concurred.

Judgment affirmed in part, and reversed in part.


author: Ellsworth, J.

text:
    Stratton and wife against Nichols.
    On the trial of an action of trespass, by a woman, for an assault upon her person, with intention to have illicit intercourse with her, the plaintiff introduced a witness, who testified, that at the time of the alleged trespass, he lived with the plaintiff, and one evening, between sun-down and early candle-light, the plaintiff was sitting in her bed-room, tending her child; that the defendant came into the keeping-room adjoining the bed-room, and asked for a paper ; that the plaintiff thereupon directed her daughter to go down into the basement story of the house, and get a light; that while she was gone for that purpose, the defendant went into the bed-room, and said something to the child; that soon afterwards, the plaintiff exclaimed, “ Let go of me ”-“ keep your hands off of me ”-“ keep your distance ”: that while her daughter was coming in from the basement with a light, the defendant left the bed-room, and soon afterwards, the house; that the position of the witness, during this transaction, was such, that he could not see either the defendant or the plaintiff, but he knew the voices of both. The defendant objected to the testimony of this witness, but it was received. On amotion for a new trial, it was held, 1. that the matters of fact involved in this statement were proper evidence to goto the jury; 2. that as the objection was taken to the whole testimony, the court did right in overruling it, even if the exclamation of the plaintiff was not admissible ; but 3. that it was admissible as an accusation of the trespass, which, though made to the defendant’s face, he did not deny.
    Fairfield,
    August, 1850.
    This was action of trespass, for an assault upon the person of Laurena Stratton, wife of Shelton B. Stratton. The cause was tried, on the general issue, at Danbury, October term, 1849.
    On the trial, the plaintiffs claimed, as one of the trespasses laid in the declaration, that some time in the autumn of 1844, the defendant entered the bed-room of the plaintiff's, and there assaulted Mrs. Stratton, one of the plaintiffs, and there en-deavoured to have illicit carnal connexion with her. In support of this claim, they offered William Platt, as a witness, who testified, that in the fall of the year 1814, he, the witness, lived with the plaintiffs, and one evening, between sun-down and early candle-light, he sat on the stairs in the plaintiffs’ house, and near the bed-room, but in such a position that he could not be seen from the bed-room, nor from the keeping-room ; that while he was so sitting there, Mrs. Strat-ton satin the bed-room, tending her child; that at that time, the defendant, whose voice he well knew, came into the keeping-room, where a daughter of the plaintiffs, aged fifteen or sixteen years, then was, and then asked either the daughter or her mother, (and the witness could not say which,) for a paper; that Mrs. Stratton then directed her daughter to go down into the basement story of the house, and get a light; that she went accordingly ; and that the defendant, (as he the witness knew by his voice,) went into the bed-room, which immediately communicated,by a door, with the keeping-room, and said something, (but what, the witness could not state,) to the child ; that soon thereafter, Mrs. Stratton spoke up, and said “ Let go of me”-“ keep your hands off of me”-“ keep your distance." And the witness testified, that this was all that was said, on that occasion; and he did not state, nor was it claimed, that he saw either the defendant or Mrs. Stratton, on that occasion, at all; nor that any thing was said by the defendant, on that occasion, except his speaking to the child, as above mentioned.
    The witness further testified, that while the daughter was coming in from the basement, with a light, the defendant left the bed room, and soon afterwards, the house. This was all of the testimony of Platt in relation to the affair, or alleged trespass, on that occasion.
    The defendant thereupon objected to the admission of this testimony, insisting, that it was not admissible to prove the defendant guilty of such trespass ; but the court admitted it, and it was given to, and heard by, the jury.
    Afterwards, on the argument of the cause to the jury, the defendant claimed, and requested the court to charge the jury, that the testimony of Platt could not be considered by them, as evidence, proper for their consideration, on the question of the defendant's guilt of the alleged trespass ; but the court did not so instruct the jury.
    The jury returned a verdict for the plaintifis, with 300 dollars damages; and thereupon the defendant moved for a new trial.
    Hawley and Belden, in support of the motion,
    contended, that the testimony of Platt was inadmissible. In the first place, no fact was proved, from which a legitimate iitference unfavourable to the defendant could be drawn. Circumstantial or presumptive evidence requires some fact proved, from which the presumption is to arise, or the inference to be drawn. Here, the foundation of the presumption is matter of conjecture only. Secondly, the words in question came from one of the plaintiffs, unaccompanied by any act what~ ever. Allow this, and a party may make what evidence for himself he pleases. rflhirdly, it was not shewn, that the words related to the defendant, if to any one. 1 Stark. Ev. 23, 4. 39. 73. 480. 501, 2. 3 Stark. Ev. 1235.
    Dutton and Loomis, contra,
    after remarking, that the only question here related, not to the sufficiency of the testimony, which it was for the jury to determine, but to its relevancy only ; for if it tended to prove the facts in issue, it was admissible ; contended, 1. that in connexion with the situation of the parties, it had this tendency. On the supposition of the defendant’s guilt, the exclamations in question were such as would naturally come from a virtuous woman ; but otherwise, they could not be accounted for.

      2. That it was admissible as a declaration accompanying an act. 1 Sw. Dig. 763. Thompson & ux v. Trevannion, Skin. 402. cited 6 East, 193.
    3. That it should be received as an admission by the defendant. Mrs. Stratton virtually charged the defendant with certain acts, which he did not deny. 1 Greenl. Ev. §197. 215.
    4. That if the testimony would, under any circumstances, be admissible, it is incumbent on the party seeking a new trial, to shew that those circumstances did not exist; for the presumption is, that the decision is right until the contrary appears. Toby v. Read, 9 Conn. R. 216.
   Ellsworth, J.

We think the testimony of Wm. Platt was admissible.

The point in dispute, was, whether the defendant did make an assault on Mrs. Stratton. Her assertion that he did, or her exclamation implying that he did, would not alone be evidence tending to prove the fact. But here the plaintiffs claim to have proved, that just at the commencement of the evening, the defendant entered, uninvited, into the bed-room of Mrs. Stratton ; as they claim, to meet her there alone in the dark ; and under pretence that he wanted to get a newspaper, induced her daughter to leave the room, and go below for a light; and further, that as she returned, and after the exclamations of Mrs. Stratton, he hastily fled, without apparent cause.

These facts are certainly admissible to the jury, and are highly important in their character. Now, in the first place, even if Mrs. Stratton's exclamation, implicating the defendant, be not admissible, still as all the evidence came in together, the objection should have been especially taken to the objectionable part, as then, the attention of the court would have been called to the precise question. A general objection after testimony is received, is not sufficient for a rejection of a portion of it, as we held in Merriam v. New-York & New-Haven R. R. Co. at the present term of the court, in New-Haven. But if it were otherwise, the words of Mrs. Stratton would be admissible. They are in the nature of an accusation of the defendant to his face. He was certainly there with Mrs. Stratton, alone in her bedroom, in the dark. She exclaimed or spoke up let go of me”-“ keep your hands off of me”-keep your distance.” To which the defendant made no reply, and immediately left, before the daughter returned to the room, and soon quit the house. He must have heard the words of Mrs. Stratton, for they were repeated, with great emphasis; and they were not unmeaning. He made no reply, and left abruptly, without any assignable cause; which would have been an unnatural course, if nothing improper had been attempted. The evidence clearly conduces to prove guilt. With other evidence, such as was introduced on the trial, it might be sufficient to satisfy the jury.

It is said, Mrs. Stratton cannot make testimony for herself: and that what she said is nothing more than this-no fact of the res gesta, nor qualifying any act ox declaration of his ; for it is said, none is proved and must not be assumed. We assent to the law ; but hold it not applicable to this case. The evidence is received as a charge of crime, which charge the defendant does not deny or resent, but flees from the accuser.

We advise no new trial to be granted.

In this opinion the other Judges concurred.

New trial not to be granted.


text:
    Crone against Daniels:
    IN ERROR.
    Where two persons are appointed, by the court, auditors, in a suit pending in that court, the parties are not bound to submit to the action of one alone.
    But where one of two auditors so appointed, assumed to act under the appointment, and having given notice to the parties, they appeared before him and were heard on the merits of the cause, in the absence and without the knowledge of the other auditor; after which the auditor so acting decided the matter in controversy, and made his report to the court; whereupon the unsuccessful party remonstrated against the acceptance of it, because it was made by only one of the auditors ; it was held, that the objection must be considered as having been waived, by consent of the parties, and the court might properly accept such report.
    Fairfield,
    August, 1850.
    This was an appeal from a decree of the court of probate for the district of Danbury, disallowing a claim on book, in favour of John H. Crone, against the estate of Mary Daniels, deceased.
    The superior court, at its term in February, 1849, appointed Daniel Blackman and Isaac H. Seeley, Esqrs. auditors, to examine and adjust the accounts between the parties. On the 19th of September, 1849, after notice to the parties, they appeared before said Seeley, and were heard, with their exhibits, evidence and arguments of counsel; and on such hearing, he, the acting auditor, found and awarded nothing due to the appellant. Blackman, the other person appointed auditor, was then living in the town of Danbury, but was not present at the hearing, and had, in fact, no knowledge thereof. The superior court, at its term in October, 1849, accepted such auditor’s report, and rendered judgment accordingly. The appellant thereupon, by motion in error, brought the record before this court for revision.

      Averill and Booth, for the plaintiff in error,
    contended, 1. That auditors act in a public capacity, and derive their power exclusively from, and the act of, the court appointing them. Patterson v. Leavitt, 4 Conn. R. 50.
    2. That where authority is conferred upon two or more persons, for public purposes, and especially for purposes of a judicial character, it may be executed by a majority, if all have been legally notified to act. Middletown v. Berlin, 10 Conn. R. 197. Patterson v. Leavitt, 4 Conn. R. 50. Green v. Miller, 6 Johns. R. 39. The King v. Beeslon, 3 Term R. 592. Ex parte Rogers, 7. Cowen, 526. Stat. 201. 369.
    3. That in this case, Seeley had no more power to hear and decide the matter in dispute, and make report, without Blackman, than if he had not been appointed. Alone, he had no jurisdiction of the cause.
    4. That the appearance of the parties before Seeley, added nothing to his power as an auditor. It was not a submission by rule of court. Stat. 108. § 208. A tribunal which has not jurisdiction of the cause, cannot acquire it, by the consent of the parties. Benton v. Mead, 6 Conn. R. 418. Denison v. Denison, 16 Conn. R. 34. Perkins v. Perkins, 7 Conn. R. 558. Mitchell v. Kirkland, 7 Conn. R. 229.

      E. Taylor, for the defendant in error,
    contended. 1. That Seeley, by appointment of the court according to law, had, as auditor, jurisdiction of the person, the process and the cause, and was invested with all the powers of the court to audit and adjust the accounts between the parties.
    2. That if otherwise, the appearance of the parties before him, and being fully heard, with their exhibits, evidence and arguments of counsel, without objection, is an admission of his jurisdiction, to which neither party can afterwards except. Gould Plead. 231. Or at least, it is a waiver of any exception to the jurisdiction, and neither party can afterwards insist on any want of jurisdiction. Newtown v. Danbury, 3 Conn. R. 553. 588. King v. Lacey, 8 Conn. R. 499. Smith v. State, 19 Conn. R. 493.
    3. That the plaintiff in error must be presumed to have had notice of the appointment of Blackman, as an auditor. He was a party in court, and the appointment appeared on the face of the record.
   Church, Ch. J.

If a power of a judicial character be conferred by law on three or more persons, a majority may legally execute the power, if all have been duly notified to act.

Here, a cause was referred to two only, as a board of auditors, of which there could be no majority, and the parties were not bound to submit to the action of one alone.

These auditors were appointed, by a public and recorded act of the court, of which, the parties to the action, of course, had notice. Only one of this board assumed to act under the appointment, and this without the knowledge of the other: he alone gave notice to the parties to appear before himself, to be heard on the matters referred. Upon this, the parties did appear, and submitted to him their respective claims, and voluntarily awaited his award. When this award was made, the unsuccessful party, for the first time, objects to the power of the acting auditor, and remonstrates against his report, because he acted alone. His objection comes too late. By a voluntary appearance and a submission to one auditor, and after a full hearing and an award by him, all objections must be considered as waived, and every thing to have been done as if by the mutual and express assent of both parties.

It was as competent for these parties to go to a trial and a decision before only one auditor, as it would be to submit to a trial and verdict by eleven jurors, or any number less than a full pannel-a common practice with us. And it was as competent for the court to accept and act upon the report of this one auditor, as it is to accept the verdict of a less number than twelve jurors, and render a judgment upon it.

There is nothing erroneous in the judgment of the superior court.

In this opinion the other Judges concurred.

Judgment affirmed.


author: Storrs, J.

text:
    Patch against Hoyt.
    On the trial of an action of trespass against B, an officer, who had attached the property, by direction of C, the defendant offered D, as a witness. It appeared, that C, being insolvent, had assigned his estate, under the statute of 1828 against fraudulent conveyances, to D, he being a creditor of that estate; that D had executed the trust, distributed the estate assigned to him, and settled with the court of probate; no claim having been presented by B: against such estate, on account of said attachment. Held, that D had no interest in the event of the suit, and was, therefore, a competent witness.
    This was an action of trespass de bonis asportatis ; commenced in May, 1846. The defendant pleaded the general issue, with notice of special matter justifying the taking, to be given in evidence. The cause was tried at Fairfield, February term, 1850.

      Fairfield,

    August, 1850.
    In the progress of the trial, the plaintiff claiming to have proved, that he, being the owner of the property, the title to which was in question in this suit, it was attached by the defendant, as an officer, by the direction of Starr Nichols & Son, on a writ in their favour against Blissard & Co., as the property of the latter, the defendant offered Lucius H, Boughton, as a witness, who, on his examination upon the voir dire, testified, that, after said attachment, Starr Nichols & Son, being insolvent, assigned their property to him, the said Boughton, in trust for their creditors, under the act of 1828 against fraudulent conveyances ; (Stat. ed. 1838. p. 300.)-that he, Boughton, was one of the creditors of the assignors ; that said trust had been settled before the court of probate having jurisdiction thereof; that the property received under such assignment by said assignee, and remaining in his hands, had been legally distributed by him to the creditors of said estate; and that no claim was ever presented, by the defendant, against said estate, for any claim growing out of the attachment. The plaintiff thereupon objected to the competency of Boughton, as a witness, on the ground that, if the defendant should be subjected in this suit, on the ground that the plaintiff, and not Blissard & Co., was the owner of said property when it was so attached, he would be entitled, as a creditor of Starr Nichols & Son, to claim indemnity against such attachment out of the estate in the hands of Boughton, as such assignee ; and that, as such claim would diminish the amount to which the witness would be otherwise entitled out of said estate, he was interested to defeat a recovery in this suit against the defendant.
    The court overruled the objection, and admitted the witness, who testified to facts material in the cause. The jury returned a verdict for the defendant; and the plaintiff thereupon moved for a new trial.

      E. Taylor and W. F. Taylor, in support of the motion,
    contended, That Boughton was an incompetent witness, by reason of interest in the event of the suit. The common law rule is, that where a person will receive a certain benefit, or be subjected to a certain loss or disadvantage, by the result, he is disqualified to be a witness. 1 Phil. Ev. 36. Sw. Ev. 55. Boughton was thus situated in this case. The defendant was the officer who served the attachment ; and he took the property, by direction of Starr Nichols & Son, who became liable for his acts, and liable also to indemnify him for any damages he may be subjected to, in consequence of such taking. Boughton, the witness, was the assignee, and a creditor of S. Nichols & Son, who were insolvent. He had a direct interest to prevent a diminution of the fund created for his benefit-an effect which a recovery by the plaintiff would produce. Stebbins v. Sackett, 5 Conn. R. 258. Phoenix v. Dey & al. 5 Johns. R. 412. 427.

      Hawley and N. L. White, contra,
    were prepared to maintain the following positions.
    1. That the interest which will disqualify a witness, must be legal, certain and immediate ; and it lies on the party objecting to the competency to show, that such interest exists at the time of the proposed examination. 2 Stark. Ev. 744, Henry’s lessee v. Morgan, 2 Binn. 497.

      2. That Boughton, at the trial, had no interest whatever in the event of the suit. The estate of S. Nichols Son had long since been settled and finished ; and Boughton had presented no claim against such estate on account of any thing growing out of the attachment in question. It was then too late to exhibit such claim, if it existed.
    3. That Boughton was not disqualified, by reason of his having been trustee ; for a mere trustee, if still in office, is competent to testify, without a release, 2 Stark. Ev. 786. 3 Stark Ev. 1690, 1. & n. Middletown Savings Bank v. Bates, 11 Conn. R. 519.
    But before the arguments on this side of the case were concluded, the counsel were stopped by the court.
   Storrs, J.

It is a familiar rule of evidence, that a person is not a competent witness to increase, or prevent the diminution of, a fund in which he has a right to participate ; but it is not applicable to the present case. If the defendant might, in case of a recovery against him, have claimed indemnity, and presented such claim against the estate assigned, so as to have entitled himself to participate in said estate in the hands of the assignee, yet It is very dear, by a reference to the statute on this subject, that, as no such claim bad been presented, and the avails of the estate assigned had been distributed to the creditors qf the assignor, snd the trust had been settled and dosed at the court of probate, such avails could not, in any mode, be recalled, by the assignee, from the creditors, whose claims had been allowed, and to whom they had been paid, or be made available to apply to the claims of any other creditors. Therefore, as the witness was entitled to retain what he had received from such avails, as a creditor of said estate, and the fund, in which he had a right to particle pate, could not be affected to his prejudice, whatever might be the event of the present suit, he had no such interest in the event as was claimed by the plaintiff, and the decision of the court below was correct.

A new trial, therefore, is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.


author: ELLSWORTH, J.

text:
    Bell and wife against Raymond and others.
    The testatrix bequeathed to her daughter B the one-eighth part of her real and personal estate, in cash, at a valuation made by the appraisers; to be paid to B, by the executor of the tentatrix ; subject to a deduction therefrom of the expenses which C, the testatrix's son, had sustained, or to which he might be subject, in the prosecution and defence of certain suits. It was also provided in the will, that such deduction, the amount being verified by the oath of C, and presenteu by the executor, should be made, before any payment should bc made to B. The real estate of the testatrix was appraised at 3225 dollars, and her personal estate at 1836 dollars; while the debts and charges against the estate amounted to 1696 dollars, leaving 3365 dollars to be distributed under the will, of which one-eighth part is 420 dollars, 621 cents. The ear-pauses of B's law-suits, referred to in the will, amounted to 588 dollars, 88 cents. Held, 1. that the share given to B, was a pecuniary legacy; 2. that it was one-eighth part of the estate after deducting the debts and charges; 3. that the qualification of the legacyto B, was not in the nature of a condition subsequent; 4. that if otherwise, it did not appear to be for an improper or forbidden purpose, and was not, therefore, on that account, invafld; 5. that the amount allowed to C for the expenses of litigation, having been ascer~ tamed in the mode prescribed by the will, must be considered as correctly allowed.
    Fairfield,
    August, 1850.
    Tuis was an appeal from a decree of the court of probate for the district of Stamford, passed on the 3d day of February, 1848.
    The appeal was brought by Andrew Bell and Betsey Bell, his wife, she being a daughter of Mary Raymond, deceased, named in her will. By this instrument, Mary Raymond gave to her daughter, Betsey Bell, the one-eighth part of her real and personal estate, in cash, at a valuation made by the appraisers of her estate ; said eighth part to be paid to her, by her (the testatrix's) executor; subject, however, to the deduction therefrom of all the costs, damages and expenses, of every nature and kind, which bet son, Stephen Raymond, had incurred, or to which he might be subject, in the prosecution and defence of sundry suits then pending in the superior court, between him and Andrew Bell, the husband of her daughter Betsey. It was further provided, in her will, that such costs, damages and expenses, so incurred by her son Stephen, or to which he might be subject, should, on the exhibition thereoC by her executor, verified by the oath of her son Stephen, be deducted from the part so given to her daughter Betsey, before any payment should be made to her. The residue of her estate, the testatrix gave to her other children and heirs at law; and appointed her son-in-law, Jacob Lockwood, executor. He did not accept the office; and Abram Clock was appointed administrator with the will annexed.
    By the decree appealed from, the court of probate found, that the real estate of the testatrix was, by the appraisement, approved by the court, 3225 dollars, and her personal estate, 1836 dollars, 56 cents, making in all 5061 dollars, 56 cents. The debts and charges against the estate amounted to 1696 dollars, 2 cents, which,deducted from the amount of the testatrix's property, left 3365 dollars, 54 cents, to be distributed under the will; one-eighth part of which is 420 dollars, 69 cents. The legacy to Mrs. Bell, the court of probate found charged, by the will of the testatrix, on her real estate; and whereas the personal estate, after the payment of the debts and charges, was not sufficient to pay in full the legacy to Mrs. Bell, with two small pecuniary legacies to persons named in the will, the court of probate ordered, that the last-mentioned legacies should be paid in full out of the personal estate, and directed a sale of the real estate of a sufficient amount to pay so much of the legacy to Mrs. Bell, (subject to the payment of Stephen Raymond's claim under the will,) as the remainder of the personal estate, after payment of the two small pecuniary legacies, should be insufficient to pay. The court of probate also found, that the costs, damages and expenses of Stephen Raymond, verified by his oath, and exhibited by the administrator, amounted to 588 dollars, 88 cents, which was ordered to be paid out of Mrs. Bell’s legacy, so far as it was sufficient therefor.
    The case, embracing these matters, was reserved for the advice of this court as to what judgment should be rendered on the appeal.

      Dutton and Carter, for the appellants,
    contended, 1. That by the terms of the devise, one-eighth part of the real and personal estate, vested in Mrs. Bell immediately upon the death of the testatrix ; and no power is given to the executor or the court of probate, to sell the land, for the purpose of paying Stephen Raymond. This is not a gift of an amount equal to one-eighth of the estate of the testatrix, but an absolute gift of one-eighth of such estate, subject to a certain deduction, The language of the will shows, that the testatrix never designed that payment should be made to Stephen Raymond, except from such personal estate as she foresaw would necessarily fall into his hands, and which she could not have supposed would be insufficient.
    2. That the court of probate erred in deducting any thing from Mrs. Bell’s share, on account of the debts of the testatrix, and the expenses of settling her estate. The will makes the inventory the rule to determine the exact amount of her share. As was said in another case, “the intent of the testatrix is so explicit, that there is no room left for construction.” Spalding v. Spalding, 2 Root 272. By declaring expressly to what deductions that share should be subject, the will excludes, by implication at least, any further deduction for debts or other cause.
    3. That the court of probate also erred in making or allowing any deduction from Mrs. Bell's share, on account of the claims of Stephen Raymond; because those provisions of the will, directing such payments to be made out of that share, are contrary to the policy of the law, and therefore void. They encourage him to invade the rights and claims of others, by force and violence,  instead of resorting to legal measures, and amount to maintenance of the worst kind. They also tend to deter Andrew Bell from asserting his just right, in a lawful way.
    Hawley and Ferris, for the appellees,
    contended, 1, That the legacy to Mrs. Bell was a pecuniary one. It was to be, not distributed, but paid; and by the execator, whose duty it is to pay pecuniary legacies, but who, as such, has nothing to do with the distribution of real estate; and it was, moreover, to be paid in cash. Being subject to the deduction of Stephen Lockwood's claims, it must be turned into money, to admit of such deduction-i. e. that it may be paid over to him.
    2, That the one.eighth part bequeathed to Mrs. Bell, was of the net estate, after payment of the debts and charges. The word estate, when used, not in its most general sense, but in reference to legatees and heirs, always means that estate, which can go to heirs and legatees; which is only what is left after payment of debts and charges. If otherwise, and the debts and charges should take seven-eighths of the estate, Mrs. Bell, the legatee of one-eighth, would take all the disposable estate. Briggs v. Hosford, 22 Pick. 288. Reed v. Addington, 4 Ves. 575.
    3. That the legacy, being payable in cash, was chargeable upon the real estate. Jackson &. Townsend & al. v. Bull, 10 Johns, R. 148. Doe d. Palmer & al. v. Richards, 3 Term R. 356. 358, Moor v. Denn d. Mellor in err. 2 Bos. & Pul. 247. Kidney v. Coussmaker, 1 Ves. jun. 444. Williams v. Chitty, 3 Ves. 545. Stat. 355. At any rate, if the legacy is pecuniary, Mrs. Bell cannot complain. The other devi-sees are the only persons, who, in that view, are aggrieved.
    4. That the court of probate had a right to find the amount due to Stephen Raymond; because it must, in some way or other, ascertain every fact which enters into a complete settlement of the administrator's account, and of the estate. Davenport v. Richards, 16 Conn. R. 317. & seq.
    5. That the bequest was, in all respects, valid. The testatrix had power to bequeath the property, on such terms, and subject to such deduction, as she pleased. It was, in substance, a bequest to Mrs. Bell, of what (if any,) should remain of one-eighth part of her net estate, after paying ~ut of it a bequest to Stephen Raymond, of the amount of his expenses in the prosecution and defence of certain suits. There is no bequest of any benefit to Mrs. Bell, until Stephen R. has received his pay. The residue, if any, and that only, goes to her.
    What reasons the testatrix had for making this disposition of her property, is immaterial. It is not improbable that her son had become involved in law-suits with Andrew Bell, while acting in her behalf; and that she considered herself bound to indemnify him.

       See Raymond v. Bell, 18 Conn. R. 82. to which allusion may here be made. B.

   ELLSWORTH, J.

We see no reason for reversing the decree of the court of probate.

The share given to Mrs. Bell is, we are satisfied, a pecuniary legacy. It is to be paid to her, by the executor, in money, after an appraisal of the estate, and after paying out of the one-eighth given to Mrs. Bell, certain sums due from Andrew Bell to Stephen Raymond. The executor cannot make a settlement of the estate, without first ascertaining what, is due to Mrs. Bell, as aforesaid, and raising the money, by sale, to pay her. This he has attempted; and has obtained an order from probate to raise the necessary funds. He could not have done otherwise.

The next question is, whether Mrs. Bell's one-eighth, is one-eighth of the gross estate, or of the net estate. We are satisfied it is the latter, The will should be read as if the testatrix had said, " after nt debts are paid, I give one-eight &c., to my daughter, Betsey Bell ;" for the will has to do with disposable property, and not at all with that which is lIrst paid out jo settling the estate, That is not disposable. True, she might have charged her debts, legacies and the expenses, upon specific parts of the estate, to the exclusion of all the rest; but this she has not done. In the absence of such a charge, the court can make no discrimination, but apply the general principle that the gross estate stands charged entirely, first, with that which is personal, and then that which is real, so far as the real estate is chargeable at all. This case is like Briggs v. Hosford, 22 Pick. 288. and Irenes v. Johnson, 4 fes. 588. Spaulding v. Spaulding, 2 Root 271. is not to the contrary. In that case, the testator charged his whole reat estate with the payment of a specific sum of money.

It is further said, that the allowance to be made Stephen Raymond, for certain debts, and certain future disbursements by him to Andrew Bell, is against the policy of the law, and void ; and that as the payment is subsequent to the vesting in Mrs, Bell of her one-eighth, the condition must be rejected, and her said share held discharged therefrom.

We do not assent to these propositions. The charge doe3 not, on its face, (and we see nothing else,) appear to be for an improper or forbidden purpose. Nor is the deduction of said debts and disbursements, of the nature of a subsequent condition. We cannot know but this provision was highly proper. Mrs. Raymond might wish to indemnify her son Stephen from all injury or loss, which he had or might experience, from the conduct of said Bell. She may have given him a deed of the property with covenants, and therefore be bound to save him harmless. She may have been the principal, and her son the agent, in what was done, out of which the controversy has arisen.

Nor do we feel the objection, that this provision may tempt to illegal and violent acts, or unnecessary litigation: the will shows nothing of this. The struggle may have been bona fide; and we are not at liberty to assume what does not appear, in order to disappoint the testatrix in this apparently just and reasonable indemnity.

Besides, this is not a subsequent condition. The share of Mrs. Bell is not to become hers until the said sums to be allowed as aforesaid, are first deducted and retained. If Mrs. Bell claims under the devise, she must take according to the terms of the devise ; and therefore, she cannot object to the testatrix’s first deducting what she pleases from the one-, eighth, and giving her the remainder.

Nor is there any objection to the amount allowed to Stephen. It was ascertained, in the first place, according to the will, by the executor, and after that, approved by the court of probate. The will expressly directs the executor to allow what Stephen shall attest by oath. This is the rule. If there were fraud or mistake in this proceeding, the court would give relief; but the court itself has allowed the amount; and having the requisite jurisdiction, we must hold that judgment proper and conclusive.

We advise that the decree of probate be affirmed. ¡

In this opinion the other Judges concurred.

Decree affirmed.