author: Storrs, J.

text:
    Babcock and another against Porter.

      Windham,

    July, 1850.
    On the trial of a scire facia=a fo attachment, wherein A was plaintiff, the original debtor, and C, the trustee of D, under an assignment for the benefit of his creditors, the garnishee, the defence was, that the effects in the hands of C, which A sought to recover, belonged to E, and not to B. In support of this claim, the principal witness was W} a partner of E. His credibility was assailed, on the ground of his interest in the event of the suit; on account of the exceptionable mode in which he had caused the claims against D's estate to be presented to the commissioners ; by reason of his management in procuring an order from B, for the dividend on D's estate; by reason of the entries in the books of the company, of which he was a member; his want of recollection as to facts which it is presumable he would remember ¿ and some other circumstances, unfavourably affecting his testimony; while his credibility was supported, by his general good character for veracity, shown by the absence of any attempt to impeach it; the want of any evidence directly contradicting him ; the character of the facts relied upon against his .credibility, as being susceptible of explanation ; and the explanations given by him. These topics, with others bearing upon his credibility, were fairly submitted to the jury, and considered by them. After averdict in conformity to his testimony, it was held, that although the court would have been better satisfied with a different result, yet the verdict was not so manifestly and palpably wrong, as to induce the court to disturb it.
    This was a scire-facias, in a process of foreign attachment, under the statute of 1846, wherein Amasa C. Hall was proceeded against as the principal debtor, and James Porter, as garnishee. The. service of the writ in the original suit, was made on the 17th of December, 1846.
    The defendant pleaded the general issue; on which the cause was tried, at Brooklyn, January term, 1850.
    On the trial, it was admitted, that the plaintiffs, in their action against Hall, recovered a judgment against him, at the term of the superior court held in January, 1848, for 1102 dollars, 5 cents, damages, and 37 dollars, 53 cents, costs. It was also admitted, that on the 2d of March, 1846, Daniel Warner made an assignment of his property, under the statute of 1828, in trust for the benefit of all his creditors ; that James Porter, the defendant in this suit, was, by the court of probate, appointed trustee, to execute the trust; that he gave bonds for the faithful performance of his duties, and immediately took into his hands the property assigned ; that commissioners were appointed to receive, examine and allow the claims of creditors ; that at a meeting of the commissioners, on the 6th of October, 1846, four promissory notes, and a book account in favour of Hall against Warner, were pre-. sented to them for allowance ; that on the 27th of October, 1846, the commissioners made their report to the court of probate, allowing such claims in favour of Hall against Warner, amounting to 2740 dollars, 51 cents ; which report was accepted, by the court of probate ; that on the 2Sth of April, 1847, the court of probate, from the avails of such estate in the defendant’s hands, declared a dividend of 27⅜⅜ cents of the dollar of the claims allowed ; that the amount of the dividend upon the claims allowed in favour of Hall against Warner, was 766 dollars, 5 cents ; and that on the 27th of Octo-her, 1846, the defendant received a written order from said Hall, dated at New-York, the same day, directing him to pay to Horace Whitaker, the dividend on his, (Hall’s) claims ; which, in May, 1847, was accordingly paid by the defendant.
    The plaintiffs claimed, that they were entitled to recover of the defendant the whole amount of the dividend on the several claims allowed against Warner’s estate, in favour of Hall, with interest thereon.
    The defendant claimed, that the plaintiffs were not entitled to recover of him the whole, or any portion, of such dividend, because Horace Whitaker, and not A. C. Hall, was the owner of the claims in question, at the time when the original writ was served. And he claimed further, that if the jury should find, that those claims did not belong to Whitaker, but were actually the property of Hall, at the time of the service of the original writ, then the plaintiffs were not entitled to recover, because, in the first place, the only effects in the defendant’s hands belonging to Hall, were held by him as trustee of Daniel Warner, and not in his individual capacity only ; and secondly, because the statute of 1846, under which the original process of foreign attachment was commenced, was repealed, before this suit was brought, and the lien created by the service of the original Writ, was thereby destroyed.
    In opposition to these claims of the defendant, the plaintiffs claimed, that the defendant was the trustee of Hall, to the extent of the dividend declared upon Hall’s claims ; and that the description of him in the original writ, was therefore sufficient. They also claimed, that the repeal of the statute re? ferred to by the defendant, did not take away from the plaintiffs the right of bringing and maintaining this action.
    The principal witness on the part of the defendant, was H. Whitaker, who testified as follows. Two of the notes-one for 1347 dollars, 97 cents, and the other for 400 dollars-belonged to Whitaker, Hammond & Co., of which firm the witness was a member. These notes, Whitaker, Hammond & Co. received from Hall, shortly after their dates. At maturity, they were not paid, and Whitaker, Hammond & Co. took them up. The note for 1347 dollars, 97 cents, was discounted at the Windham County Bank ; and the note for 400 dollars, he, (the witness,) thinks, was discounted at the Quinebaug Bank; but this he cannot state positively. The two other notes were handed over to Whitaker, Hammond & Co. to receive the dividend upon them, in part payment of a claim which they, Whitaker, Hammond & Co. had against Mr, Hall. After Whitaker, Hammond & Co. heard that Warner, the maker of these notes, had failed, 1 went up to Woodstock, and saw him, and made inquiries in relation to his circumstances. I told him, that Whitaker, Hammond & Co. had discounted the notes which he gave to Hall, and that they had a joint interest with Hall in one of them. At one of the meetings of the commissioners, I went up to adjust a claim which I held individually against Warner, and found, that the commissioners had entered the claims in favour of Hall upon their memorandum, in the name of Whitaker, Hammond & Co. I requested the commissioners to change the entry to A. C. Hall, as suits upon the notes had previously been commenced in the name of Hall, and I did not know but those suits might be affected, in some way, if the notes were proved in the name of Whitaker, Hammond & Co. The suits were commenced by Edmund Perkins, Esq. At the time the notes were handed to him, I asked him in whose name the suits should be commenced, Whitaker, Hammond & Co., or Hall’s ? He said, it would make no difference ; and I told him to commence them in the name of Hall, as I did not wish to have it known that I was so large a creditor of Warner. I am unable to state when I received from Hall the notes for 600 dollars, and 277 dollars, 45 cents.

      On cross-examination, he testified, that he had never examined the books of Whitaker, Hammond & Co., containing their accounts with A. C. Hall, more than one hour; and that was after he received notice from the plaintiffs’ counsel, to produce them, on this trial. After Whitaker, Hammond & Co. went into partnership, Hall went to New-York, and they agreed with him to pay him a commission for purchasing goods for them; they also gave him the privilege of buying certain goods, and charging them to Whitaker, Hammond & Co. in joint account with him ; they agreeing to share with him the profits and loss upon their sale.
    [The witness here introduced the books of Whitaker, Hammond & Co. containing their accounts with A. C. Hall. A transcript of such portions of said accounts as are material in this case, was exhibited.]
    The witness then proceeded as follows. There are four accounts with Hall, on the ledger; a cash account, a joint account, a cotton account, and a general account. The cash account commenced March 4th, and closed May 30th, 1846. A settlement of this account was made, and a balance struck, on the 10th of April, 1845. The amount due Hall, was 639 dollars, 63 cents, which was credited to him in new account. Another settlement of this account was made on the 29th of May, 1845, and there was then a balance against Mr. Hall, of 364 dollars, 19 cents, which, on the 30th of May, was charged to him in new account. The only additional item in this account, is a charge of 55 dollars, May 30th, 1845, which, with the balance of 364 dollars, 19 cents, making 414 dollars, 19 cents, was transferred to the general account.
    The general account commenced May 30, 1845. The first balance of this account was struck, on the day it commenced. The amount was only 127 dollars, 88 cents. The second balance was struck June 11, 1845. There was then 254 dollars, 90 cents, due to Mr. Hall, which was paid in cash. Another balance was struck, June 26th, 1815. The amount then due Hall, was 195 dollars, 76 cents, which was paid in cash. Another balance was struck August 4, 1845. The amount then due Hall, 178 dollars, 34 cents, was settled by our note at six months. We settled again, August 25, 1845, and found due Hall, 393 dollars, 71 cents, which was paid him in cash. There was another settlement, on the 8th of December, 1845. There was then due Hall, 833 dollars, 99 cents, which was credited to him in new account. To make this balance, there is a credit of 1142 dollars, 14 cents, for a -note of J. C. Hayward, which was left with us, by Hall, to be discounted. On the 2d of February, 1846, the account was again balanced, and an amount of 346 dollars, 61 cents, found due to Hall, which was settled, by our note at 4 months from January 27th. The account remained open from that time until the 29th of February, 1848; when it was again settled, and a balance found due to Whitaker, Hammond & Co. of 539 dollars, 27 cents, which is transferred to the books of Hammond, Warren & Co. On the 2lst of March, 1846, Whitaker, Hammond & Co. paid Warner’s note for 1347 dollars, 97 cents, and charged it to Mr. Hall, in account; and on the 19th of May, 1846, they paid the 400 dollar note, and charged that to Mr. Hall. There are two of the notes which were allowed in favour of Mr. Hall, against Warner's estate. I have never looked over these books with Mr. Hall. I never made an examination with him of his books. Hall was a witness at the former trial of this case. He came at my request. I have said nothing to him about being a witness on this trial. He was at Norwich, last week ; but I am not able to say when he arrived there. I saw him in the office of the steam-boat company. I don’t know but my counsel said something to me about Hall. But I had no conversation with any one, either with my counsel or partners, about his attending this trial. Mr. Edmund Perkins might have sug- gested to the, whether it was important that Hall should be here, though I cannot say as he did, I left the matter alto- gether with my counsel. I cannot say, whether I have had any communication with Hall about this suit, or not. I sent to him an order to sign, directing the trustee on the estate of Daniel Warner, to pay to me the dividends on his claims against that estate. I sent a verbal communication to him, at the same time, that some process was on foot,-but what did not know. [The
    [The order referred to by the witness, was here exhibited by him, and read. He then continued his testimony as fol- lows.] This order was written by me, in Norwich, and sent by Mr. O. D. Day, to Mr. Hall, who was then in New-York, to sign. Mr. Day was, at that time, in the employ of Hall, He came down from the North, in the evening train of cars and I asked him, if he would take the order to Hall, that night, night, and get him to sign it, and return in the Long-Island train of cars, the next morning, and carry it to the commissioners on Warner’s estate. He said he would, and did so. I did this, by the advice of my counsel, Mr. Perkins. I heard, that a copying process was on foot; and I did not know but there might be some informality about it, as the claims were proved in Hall’s name. I therefore consulted Mr. Perkins, and he advised me to have the order drawn. I do not recollect whether I paid Mr. Day’s expenses in going to New-York, to get the order signed, or not.

      Whitaker, Hammond & Co. have credited Mr. Hall with the dividend on the whole amount of the claim proved in his name against Warner’s estate, under date of May 10, 1847. The amount of the dividend was 766 dollars, 5 cents. Two of the notes allowed against Warner’s estate in favour of Hall, the one for 600 dollars, and the one for 277 dollars, 45 cents, are not credited on my books. As I have stated before, those notes were handed to Whitaker, Hammond & Co. to receive the dividend upon them. I am unable to state when or where the arrangement was made, that I should receive the dividend upon these two notes; but it was about the time the notes were sued. The notes for 1347 dollars, 97 cents, and 400 dollars, are entered to Hall’s credit on the books, but the entry of the large note is not carried on to the ledger. The 400 dollar note is credited in the cotton account. There are some entries on the journal, which show, that the transaction respecting the large note was closed at the time, by my remitting to Hall the amount that was due to him for it, after deducting my share of the profits on the sale of the cotton for which it was given, and sundry expenses.

      Daniel Warner, also a witness for the defendant, testified, that Horace Whitaker was present at one of the meetings of the commissioners on my estate, and told them, that as there was a suit pending upon the notes in Hall’s name, they might as well be put down in Hall’s name in their report. .
    On cross-examination, he testified, that these notes were given for cotton, which he bought of A. C Hall, in New-York. The bills of the cotton were made out in the name of Hall alone. They were written-" Daniel Warner bought of A. C. Hall." I compromised these claims with Mr. Whitaker, who had a power of attorney from Hall for that purpose. I think I have the power of attorney, but it is at home. It speaks of the claims as belonging to Hall, and gives Mr. Whitaker power, in Hall's name, to settle and discharge them.

      Oliver Morse, a witness for the defendant, testified, that he was one of the commissioners on Daniel Warner’s estate. Mr. Whitaker, or E. Perkins, Esq., presented the claims that were allowed in favour of A. C. Hall. They were entered in the memorandum of claims to Whitaker, Hammond & Co. Mr. Whitaker stated to the commissioners, that the claims were his, but a suit had been commenced upon them, in the name of Hall, and on that account, he said, he thought they had better be allowed in Mr. Hall's name ; and that is the reason why they were so entered in the commissioners’ report.
    The defendant here laid in sundry documents, referred to by some of the witnesses, but which it is not necessary, for the present purpose, to detail. He then rested.

      Orange D. Day was then called as a witness, by the plaintiffs, and testified, that he took the order, before-mentioned, from Mr. Whitaker, in the evening, and went to New-York with it, and got it signed by Mr. Hall, and returned the next morning, by the Long-Island train of cars, and carried it to the commissioners on Daniel Warner's estate. The reason that Mr. Whitaker assigned for wanting me to go, was, that Mr. Brewer had trusteed the debt due from Mr. Warner to Mr. Hall; and he thought it might have been done too early, as the process was served before the commissioners had made their report; and he wanted, he said, to get the transfer made and put into the hands of the commissioners, before they made their report; so that in case of any informality in the proceeding, he could hold the debt. He assigned no other reason. He told me to get my expenses of Mr. Hall, and Mr. Hall paid them to me. I was then in the employ of Mr. Hall. I called on Mr. Hall, at the Western Hotel, as soon as I reached New-York, which was early in the morning, and told him my business ; that Mr. Whitaker had requested me to bring the order, and get him to sign it, in consequence of a copying process, which was on foot, to get hold of the dividends on the Warner debt; and that he wanted me to get back as soon as possible, so that the order could be placed in the commissioners' hands before they made their report. Hall took the order and signed it. While signing it, he said it was too late-it was no use for me to go back with the order-it was too late-the debt was gone.
    The defendant recalled Daniel Warner, who testified, that he had a conversation with Mr. Day, (the praintiffs' witness,) on board of the cars, or steam-boat, he did not recollect which. In that conversation, Day spoke about Hall's cheating him in business-said he meant to come up with him-and when the cause was tried, they expected him to come on and testify; but he, (the witness,) could not state precisely what Mr. Day said about the matter.
    Upon the evidence above stated, and the claims of the parties respectively, the court charged the jury, pro forma, as requested by the plaintiffs and the jury thereupon returned a verdict in their favour, for a part only of the sum claimed by them. They thereupon moved for a new trial, on the ground that the verdict was manifestly against the weight of evidence in the cause.
    The court reserved the case, for the advice of this court, on the questions arising thereon.
    Strong and J. A. Hovey, in support of the motion,
    contended, 1. That it was not necessary to set forth, in the original process, the special character or right, in which the defendant, in this suit, held the property of Hall, the absconding debtor.
    2. That the repeal of the statute of 1846, relating to foreign attachment, did not divest the plaintiffs of the right to recover, in this action, the amount due to Hall, from the estate held by the defendant for the benefit of Warner's creditors.
    3. That the verdict of the jury in respect to the amount of damages, is manifestly and palpably against the weight of evidence, and does great injustice to the plaintiffs. They were entitled to recover the amount of the dividend declared in fa-vour of Hall, not upon the book debt only, but upon the several notes that were proved and allowed in his name. [To this point, the arguments of counsel were principally directed, examining and commenting on all the evidence; but the decision of the court renders it unnecessary to follow them, except upon the credit due to Whitaker’s testimony ; as to which they remarked to the following effect.]
    The only evidence offered to sustain the claim set up by the defence, that the notes proved and allowed in the name of Hall, were not in fact his property, was that of Horace Whitaker. He swore, that the notes for 1347 dollars, 97 cents, and 400 dollars, belonged to the firm of Whitaker, Hammond Co., of which he was a member ; and that the two other notes were handed to that firm to receive the dividends upon them, in part payment of a debt due to them from Hall. Neither Hall, nor any member of the firm of W. H. & Co. except Mr. Whitaker, was, for some reason, called to the stand. Hall knew all the facts in the case, and his testimony might have been had by the defendant, if he had deemed it important; but he did not probably so deem it.
    The uncorroborated testimony of a witness, standing in the relation of party to a suit, is not, under the law of. 1848, which allows him to testify, entitled to full credit. The testimony of Whitaker, in this case, was not only uncorroborated, but was utterly irreconcilable with some of his own acts, and opposed to the whole current of evidence introduced by the plaintiffs. It ought not, therefore, to have received that degree of consideration, which it did, at the hands of the jury.

      Foster and E. Perkins, contra,
    contended, 1. That the plaintiffs were not entitled to any verdict in this case, for the simple reason that they never attached the debt in question. The original writ held only such debts as James Porter, at that time, owed A. C. Hall. The statute of 1846, contemplates only an attachment binding on the trustee in his official capacity.
    2. That if the copy left with Porter, was an attachment of funds in his hands, in his capacity of trustee, the lien created by it,was terminated, when the statute was repealed in 1848. The attachment was created by, and perished with, the statute.
    3. That the verdict in this case was not so manifestly and palpably against the weight of evidence, as to authorize the court to set it aside, for that reason. Bacon v. Parker, 12 Conn. R. 212. Lafflin v. Pomeroy, 11 Conn. R. 440. In this case, the question submitted to the jury was, whether, at the time of the attachment, the dividends on the four notes mentioned in the motion, belonged to Whitaker, Hammond. & Co., or to A. C. Hall. Upon that question the jury have passed ; and there is nothing in the evidence requiring the court to interfere with the verdict. The only evidence that these dividends belong to Hall, is, the fact that they were reported in his name, by the commissioners. Had they been reported in the name of Whitaker, Hammond & Co., the plaintiff's would have had no evidence. This report is a proper subject of explanation ; and, as explained, by the testimony of Whitaker, Morse and Warner, and the conduct of Hall, and W. H. & Co., stood before the jury, and now stands before the court, precisely the same as if the commissioners had reported their claims as they originally entered them, in the name of W. H. & Co. The motion of the plaintiffs rests on the claim that the title of Whitaker, Hammond & Co. is fraudulent, and the testimony of Whitaker false. The jury have found the title good, and the testimony true. The question is one peculiarly for the jury, never for the court.
   Storrs, J.

The plaintiffs move for a new trial in this case, on the ground that the verdict is against the evidence. They claimed, on the trial, to recover the whole amount of the original indebtedness from Warner to Hall; but the jury gave them only a part of it.

The claim of the defendant, (that the remainder of such indebtedness was due to Whitaker, Hammond & Co., at the time of the service of the process, in the original suit by the plaintiffs, against Hall, on the defendant,) and which constituted the defence, rested mainly on the testimony of Whitaker alone. It is conceded, that if Whitaker was not entitled to full credit, the defence was not made out; and the question before us, therefore, depends on the credibility of this witness. His interest in the event of the suit; the mode in which he caused the claims to be presented to the commissioners on the estate of Warner; his conduct respecting the order on the defendant, procured by him from Hall; the entries in the books of Whitaker, Hammond & Co.; his want of recollection as to some facts which it is presumable-he would remember ; and some other circumstances of less weight, affecting his testimony, which it is unnecessary to detail; constitute proper topics of consideration in estimating the credit due to him, and undoubtedly tend to detract from it. On the other hand, his general good character for veracity, which we have a right to infer, in the absence of any attempt to impeach it; the want of any evidence directly contradicting him; and his explanations of the most material facts which appeared to militate against the truth of his testimony ; furnished evidence in his support. And it is to be considered, that several of the facts stated by him, which have been much commented on, by the plaintiffs’ counsel, for the purpose of discrediting him are not of a decisive character, but are susceptible of an explanation, compatible with the truth of his testimony as to the main fact which was the subject of enquiry, the title of Whitaker, Hammond & Co. to the claims in question. We refer to the presentation of the claims to the commissioners in the name of Hall, rather than of Whitaker, Hammond & Co.; the manner in which the transactions between Hall and W. H. & Co., were entered on the books of the latter, and the procurement of the order, by Whitaker from Hall. These topics, and all the others suggested by the evidence bearing on the credibility of the witness, were fairly submitted to the jury, and considered by them ; and although we might have come to a contrary conclusion, on this point, and have been better satisfied with a different result, we do not think that we are authorized to say, that their verdict was so manifestly and palpably wrong, that it should be disturbed.

This conclusion renders it unnecessary to consider the questions of law presented by the defendant, whether he was so described in the original writ of foreign attachment, that he could be subjected in the suit, as the trustee of Warner ; and also, whether the repeal of the act of 1846, (ch. 23. p. 22.) extending the process of foreign attachment, in suits against assigning insolvent debtors, to their trustees, (by virtue of which act alone said original suit was brought,) destroyed the remedy of the plaintiffs, in the present action. These questions have been raised, by the defendant, not for the purpose of obtaining a new trial on his own behalf, which he does not move for, but only for the purpose of defeating this motion of the plaintiffs, in case the verdict should be considered as not sustained by the evidence.

A new trial si not advised.

In this opinion other Judges concurred.

New trial not to be granted.


source: Caselaw Access Project

author: Storks, J.

license: Public Domain

text:
    West against Howard.
    Where a bill in chancery stated, that an antenuptial agreement was entered into between A and B, that certain personal property then owned by her, consisting of promissory notes, should, after the marriage, remain her sole and separate property ; that the avails of a part of such property were delivered by her to him, after their marriage, to be invested by him in certain land, for her and in her name ; that land was purchased accordingly, but the conveyance thereof was taken to him, and the legal title was vested in him; it was held, that if there was such an antenuptial agreement, it would constitute her, in equity, a feme sole, in regard to such property; and any contract respecting it, between her and her husband, or any disposition of it by her, which would, were it not for the intermarriage between them, create any right or obligation in her favour against him, would be enforced ; but, 2, that the proof of the existence and terms of such agreement, ought to be clear and satisfactory; and 3. as it was found only, that there was some agreement between A and B before marriage, respecting the property of B, and that, by one of the terms of that agreement, B was to retain the sole use and controul of certain notes belonging to her, it was held, that the alleged agreement was not found, with sufficient clearness and definiteness, to warrant a decree founded thereon.
    Where the report of a committee, to whom a bill in chancery was referred, stated certain circumstances, as evidence of the existence and terms of an ante-nuptial agreement between A and B, regarding certain moneys, the avails of her property, which he received from her during the coverture, but did not state the facts which those circumstances were stated to prove; it was held, that it was the duty of the committee to find and report the facts proved, and not merely to present the evidence, and that it was not the province of the court to find the facts from such evidence.
    Where it appeared, that the husband had purchased land, with funds claimed to be the separate property of the wife, and had afterwardssold and conveyed it to a purchaser having no notice of any trust; on a bill in equity, brought by the heir of the wife, after her death, against the husband, for relief; it was held, 1. that the plaintiff’s claim constituted only a pecuniary indebtedness of the defendant, to be recovered by an action at law, and a bill in equity was not only unnecessary, but an inappropriate remedy; 2. that the right of the wife, on her death, vested, not in her heirs, but in her executor or administrator, by whom alone it could be prosecuted.

      Tolland,
    August, 1850.
    This was a bill in chancery, stating an antenuptial agreement between the defendant and his wife, and praying for a decree which should compel him to convey to the plaintiff, one of her heirs, certain real estate, purchased with money belonging to her. A committee appointed by the court, to find the facts in the cause, made a report, in substance, as follows : “That Joseph Howard, the defendant, being about forty-six years of age, and Ruby West, named in the bill, about forty-two years of age, were united in marriage, on the 18th of December, 1823. She was, at that time, possessed of certain promissory notes, given by William Babcock, for property then recently sold to him by her,amounting to 436 dollars, and due the 1st of April, 1824, without interest. She was also possessed of certain household furniture, live stock, hay, grain, &c. of the value of about 200 dollars. He was a widower, having seven children, from six months to fifteen years of age. He had a small interest in some real estate, where he now lives, not exceeding 50 dollars in value. He was reported to be poor; but was then, and for some twelve or fifteen years afterwards, town-clerk of the town of Tolland, and clerk of the probate district of Tolland; and by his writing and other personal efforts, supported himself and family comfortably, both before and after the marriage. She died in March, 1846, without children, leaving two brothers and two sisters, her sole heirs, who still survive her. One brother, and the two sisters, before the bringing of this suit, voluntarily, and without consideration, relinquished all their interest in the estate of said Ruby, to their other brother, the plaintiff, who prosecutes this suit for his sole benefit. Before the commencement of this suit, the plaintiff requested the defendant to surrender to him the title to the dwelling-house and land, where he now lives, and all the property in his possession, belonging to said Ruby, at her death.”
    The committee further found, that on the day of their marriage, an agreement in writing, drawn up by him, was entered into between him and her, by which she was to retain the possession and controul of some portion, or the whole, of her property, for a longer or shorter period. The writing was delivered, at the time it was executed, to one Israel Luce, for safe-keeping; but his house, together with the writing, were destroyed by fire, in the year 1830. From the lapse of time since its execution; the loss of the instrument; the fact that it was drawn up by a person having no professional skill in drafting such instruments ; that it was never read to any witness; that during sixteen years between its destruction by fire, and the death of Mrs. Howard, he was never requested by her, or her friends, to execute a counterpart, or certify the contents of the writing ; the infirmity of human recollection ; and the difference of opinion or recollection between those who were present, as to the declaration made by him at the time ; these facts, were there nothing else in the case, as the report said, might well create great doubt as to the contents or legal operation of the writing in question.
    The committee further found, that a short time before the marriage, and after their marriage contract had been entered into, she delivered said notes to Israel Luce, to be kept for her ; that within a year after the marriage, he returned them to her, at or about which time, Babcock paid her about 200 dollars, on those notes ; which payment was made in the presence of her husband, and the money was received by her, with his approbation ; that payments were subsequently made to her, from time to time ; that some of said notes were renewed after the marriage, and the renewal notes made payable to “ Ruby Howard;"that she occasionally loaned money, in sums from 10 to 80 dollars, and took notes to herself, and placed them in the hands of different persons, for safe-keeping, and occasionally gave small sums to an indigent sister ; that her husband, having a knowledge of these facts, never interfered, or made any claim to said notes, or to the money received thereon, but spoke of it, as his wife’s money ; and in one instance, in 1826, he advised his wife to let him invest a portion of the funds so received on said notes, in real estate, as being more useful to the family, and equally secure for her. From these facts the committee found, as a legitimate inference, subject however to the opinion of the superior court, that in respect to said notes, the writing was intended to give her the sole use and controul of them, as a feme sole ; that in respect to the rest of the personal estate, it went into the hands of her husband, by her consent, and was used for their joint and mutual benefit; and it did not appear that any portion of it remained, at the time of her decease.
    The committee further found, that on the 18th day of No
      vember, 1826, said Joseph received of the said Ruby, 313 dollars, avails of said notes, and invested the same in real estate, under a just expectation, on her part, that the deed was to be taken in her name; but that he should cultivate the land for the use of himself and family. But said land being, at the time of such purchase, capable of great improvement from labour and cultivation, and in expectation of making such improvement, he, fearing that if a deed was taken in her name, as she had no children, he and his heirs would lose the benefit of such improvement, took the deed to himself; and the title so remained, until the land was sold, in March, 1844, when the avails were appropriated, by him, to pay debts contracted by him in building the house he now occupies, or in the purchase of other lands, or in some other way to his use, and was never repaid to said Ruby: that between the purchase and sale of said land, said Joseph did greatly improve, and thereby add to the value of said land ; and the value thereof was further enhanced, by the rise of land during that period; and said land, with the addition of five acres subsequently bought by him, and added to it, was sold, March 28th, 1844, for 675 dollars; but how much or what proportion of the increased value of said land was to be attributed to either of the causes referred to, the committee did not feel authorized to find from any testimony before him.
    The committee further found, that the land connected with the dwelling-house now owned and occupied by said Joseph, was in part owned by him, at the time of his marriage; and that he cut a portion of the timber to build his house, from the land purchased by him in 1826; that said house, and the land connected therewith, were owned and occupied, by said Joseph and Ruby, from the time the house was built, in 1827, until her death, in March, 1846 ; that a note of 30 dollars, made by said Babcock, payable to Ruby Howard, with interest, dated May the 23d, 1839, and still due and unpaid, was left by her, at her death, in the hands of said Joseph, and is now in his possession; but the committee did not find, that any money arising from said notes of 436 dollars, went into the hands of said Joseph, except said sum of 313 dollars.
    On this finding of the committee, in connexion with the bill, the case was reserved for the advice of this court, as to what decision should be made thereon.

      T. C. Perkins and Storrs, for the plaintiff,
    contended, 1. That from the finding it appears, that in contemplation and in consideration of marriage, an agreement in writing was drawn up and entered into, purporting, and believed to be sufficient, to secure to the intended wife, the property she then had, to her sole and separate use. In the first place, without some arrangement of this sort, the property would have become the husband's, by the marriage, or at least subject to his disposal; and had it been their intention to leave it so, they would have entered into no stipulation, whatever, in regard to it. Secondly, in respect to the notes, the fact is distinctly found, that the writing was intended to give her the sole use and controul of them, as a feme sole. Intention is to govern, in the construction of contracts; and no precise form of words is requisite. In this case, it is sufficient, if it appears, that it was intended that the husband should have no interest, 4 Kent's Com. 304. 2 Sw. Dig. 122. 126. Vil-liers v. Villiers, 2 Atk. 72. Fisher v. Fields, 10 Johns. R. 495. Thirdly, from the facts found as to the conduct of the parties, after the writing was executed, and after their intermarriage, it is apparent, that the intention was, to protect her estate from the rule of law which makes it the husband's. There can be but one opinion as to the intent.
    2. That antenuptial contracts are favoured in equity, and will receive such a construction as will carry them into effect according to the intent of the parties. Brown v. Slater & al. 16 Conn. R. 192. Andrews v. Andrews, 8 Conn. R. 80. Selleck v. Selleck, 8 Conn. R. 85. n. 2 Sw. Dig. 123. 2 Kent's Com. 163. 165. And where there is no trustee, the husband himself will be considered as trustee. Baldwin v. Carter, 17 Conn. R. 208. 2 Sw. Dig. 122.
    3. That if one purchase land with the money of another, and take a deed in his own name, there will be a resulting trust in favour of him who furnished the money. 4 Kent's Com. 305, 6. 2 Sw. Dig. 128. Methodist Epis. Church v. Jaques, 1 Johns. Ch. R. 450. Boyd v. McLean & ux. Id. 582. Where trust money can be traced into land, the land in general is liable. 2 Sw. Dig. 117. Lench v. Lench, 10 Ves. 517. Taylor v. Plumer, 3 Mau. & Selw. 562. Murray V. Lylburn, 2 Johns. Ch. R. 442.
    4. That real estate vests immediately in the heir or devisee. on the death of the owner, and the executor or administrator has no controul over it, unless it is wanted for the payment of debts. Goodrich v, Thompson & al. 4 Day, 215, Peck v. Botsford, 7 Conn. R. 178. 1 Sw. Dig. 444. Roorbach V. Lord, 4 Conn. R. 349. Wattles v. Hyde, 9 Conn. R. 14.
    5. That there having been no administration granted on the estate of Mrs. Howard, and there being no debts against it, so far as appears, the heir is now entitled to the real estate; and the remedy resorted to is the appropriate one. Andrews V. Andrews, 80 Conn. R. 80. Selleck v. Selleck, Id. 85. n. 2 Sw. Dig. 115. 4 Kent's Com. 306. Hill v. Bishop of London & al. 1 Atk. 618.
    Brockway and Hyde, for the defendant,
    contended, 1. That the facts found by the committee did not warrant the legal inference by him stated, conditionally, viz, that in respect to the notes, the writing was intended to give Mrs. Howard the sole use and controul of them as a feme sole. Clancy on H. & W. 362. Jarvis v. Prentice, 19 Conn. R. 262. Fourth Eccles. Soc. in Middletown V. Mather, 15 Conn. R. 587.
    2. That if the facts found by the committee do warrant the inference that the notes were intended to be the sole and separate estate of Mrs. Howard, yet they also warrant the further conclusion, that as to the 313 dollars, this sum, by her act, became the property of her husband ; the antenuptial contract having been abandoned. 2 Sw. Dig. 128. Reeve's Dow. Rel. 166. Jaques v, Methodist Epis. Church, in err. 17 Johns. R. 548. Powell v. Hankey, 2 P. Wms. 82. Clancy on H. & W. 547. & seq.
    3. That if there are merits in the application, the wrong person has come for relief: it should be the administrator of Mrs. Howard's estate, not her heir at law. 1 Sw. Dig, 444, 5. Roath v. Smith, 5 Conn. R. 133. Travis v. Waters, 1 Johns. Ch. R. 85. Baldwin v. Carter, 17 Conn. R. 208. 2 Sw. Dig. 219. 223. Reeve's Dom. Rel. 167.
    4. That the plaintiff is seeking his remedy before a wrong tribunal. If he is entitled to the property in question, he may recover it in an action at law. Bailey v. Strong, 8 Conn. R. 278. Beach v. Norton, 9 Conn. R. 182. Stannard v. Whittlesey, Id. 566.
   Storks, J.

The plaintiff in this bill alleges, that an agreement was entered into between the defendant and his wife before their intermarriage, that certain personal property, then owned by her, consisting of promissory notes, should remain her sole and separate property after her marriage ; that the avails of a part of said property were delivered by her to him, after their marriage, to be invested by him in certain land, for her and in her name ; and that land was purchased accordingly ; but that the conveyance thereof was taken to him; and that the legal title is now in him; and therefore, seeks to compel a conveyance from him to the plaintiff, who is one of her heirs, and claims an assignment from her other heirs of all their interest in her estate, of the legal title to such land, or the payment by him to the plaintiff, of the amount so received by him from his wife.

If there was such an antenuptial agreement, it would constitute her, in equity, a feme sole, in regard to said property; and any contract respecting it, between her and her husband, or any disposition of it by her, which would, were it not for the intermarriage between them, create any right or obligation in her favour, against him, would be enforced.

On the question, which appears to be referred to us, by the committee, as to the admissibility of the evidence received by them to prove the loss, and also the terms, of the agreement, we perceive no objection to its relevancy for that purpose ; nor has any question been made before us, on that subject.

But we are not satisfied, that any antenuptial agreement between the defendant and his wife is found, in this case, with sufficient clearness and definiteness, to warrant a decree founded on its supposed existence. That there was some agreement between them, before marriage, respecting the property, is indeed found ", but of the precise terms or substantial import of it, the report of the committee leaves us in entire doubt, excepting that it finds, as one of the terms of the agreement, that she was to retain the sole use and controul of the said notes, as a feme sole. As the husband, but for such contract as is set up here, would, by virtue of the marriage, become entitled to all the personal property ofhis wife, and, in our state, arrangements by which the latter shall have separate and independent interests in property during cover-ture, are not favoured, the evidence of an agreement, depriving the former of what would otherwise be one of his rights, acquired by the marriage, ought to be quite clear and satisfactory ; and as the effect of it depends on the whole of its stipulations taken together, it would be quite unsafe to pronounce on the rights acquired by it, upon such a partial knowledge of its terms as is furnished by this report.

The view, however, which we have taken of the other claims of the plaintiff, renders it unnecessary for us to decide upon the effect of the finding of the committee, as to the terms of said contract, because, supposing its terms to have been sufficiently shown, the report finds no such agreement between the defendant and his wife, respecting the moneys, the avails in part of the note against Babcock, which the defendant received from his wife during the coverture, nor any such circumstances attending the reception or subsequent investment or disposition by him of those moneys, that he can either be now treated as a trustee for her heirs of the land purchased by him with those moneys, and therefore decreed to place the legal title to said land in those heirs, or in the plaintiff representing them,-to be directed, on this bill, to pay to those heirs, or the plaintiff, the amount of said moneys.

In the first place, no agreement that the amount, which the defendant so received, should be invested in land, in the name or for the use of his wife, is found by the committee ; although circumstances are found, which conduce to show such an agreement; but it is not the province of the court to find the facts in this case, from the evidence presented to us, by the committee. It is the duty of the committee to find and report the facts which are proved before them ; and it is only on the facts so reported, that a decree can be based, unless, indeed, additional facts are found by the court, which is not the case here. The finding that there was a just expectation, on the part of the wife, that the money received by the defendant, would be invested in land, in her name, is quite too loose, to justify us in proceeding, on the ground that there was any specific agreement between them on the subject; much less, to enable us to determine what were the precise terms of the agreement, if any was made. Especially is this so, where, as in this case, the circumstances reported to us, would lead us strongly to infer whatever may have been the original agreement between them, a subsequent acquiescence, by the wife, in his disposition of the money, and of the land purchased with it. and an abandonment by her of any trust upon which said money was received by him, which it would be competent for her to make. Imlay & al. v. Huntington, ante, 146.

But, in the next place, it appears, that the land purchased by him, ha# been sold and conveyed by him ; and that, therefore, it is out of his power to vest the legal title to it in her heirs, or the plaintiff; and it is not found, nor is there any reason to infer, that the purchaser from the defendant ever had any notice that the land, while held by the latter, was clothed with any trust for his wife, whereby it would pass to such purchaser, subject to such trust. `We are therefore of opinion, on the facts reported to us, that whatever claim the wife of the defendant had, during her life, or her heirs now have, against him, arising out of the reception by him of a part of the avails of her separate property, such claim constituted only a pecuniary indebtedness, for the recovery of which, by her heirs, a bill in equity is not only unnecessary, but an inappropriate remedy, and which should be enforced by an action at law against the defendant, in favour of the administrator of his wife. Although the remedy 1w hci , during the coverture, on a claim of this character against her liu~band, must have been in a court of equity, by reason of their legal unity, which would prevent theni from suing each other iii a court of law, such reason ceases, on her death, when an administrator may be appointed on her c~tate, ~rho may prosecute and recover of her husband, any debt due from him to her, at her decease. See Baldwin v. Carter, 17 Conn. R. 201. The legal title to all personal property, then owned by her, vests, not in her heirs, but in her c~eeutor or admmistrator ; by whom only, as a general rule, can it be recovered and the distribution of what remains of her estate, on a settlement of it in the ordinary mode, is to be made to those entitled to it, through the instrumentality of the court of proi ate, according to the general provisions of law br that purpose. The reason of this course is obvious, when it is considered, that other persons. besides heirs, may have an interest in the estate ; and that their rights can he ascertained or protected, only by means of such a regular settlement as the law requires. There may indeed be peculiar circumstances, where relief will be granted to those ultimately entitled to the estate of a deceased person, without the formality of a regular administration in a court of probate ; but in this case, no such circumstances are claimed to exist. On the ground, therefore, that the plaintiff, representing the heirs of Mrs. Howard, has no legal title, and it does not appear that he has any equitable title, to the debt which is claimed to have been due from the defendant to his wife, at her decease; and that it can only be recovered through her administrator; the plaintiff is not entitled to a decree on this bill, for the amount of such debt.

We therefore advise, that the bill be dismissed.

In this opinion the other Judges concurred.

Bill dismissed.


author: STORRS, J. Church, Ch. J.,

text:
    The Boston Turnpike Company against The town of Pomfret.
    It is competent for a town-clerk to rectify any error which be had made in re- cording the proceedings of the town, by amending the record, so that it should state those proceedings truly.
    And an application for a writ of mandamus, in such case is generally unnecessary.
    The law attaches much less sanetity and importance to the entries of the votes and proceedings of towns and other municipal corporations, than to judicial records; and the rules which govern the amendment of the latter, are not applicable to the correction of the former.
    The power of a town-clerk to amend his records, is confined to the individual whose duty it was originally to make them, and is allowed to him only while he is in office.
    Against the abuse of this power. the law has provided safe-guards, not only in the selection of the officer, and the sanctions it imposes upon him, but in the provisional remedy it affords, by writ of mandamus.
    Where an amendment of the record of a town vote, was made, some years after the original entry, by the town-clerk, not on his own personal knowledge, but on the information of others; it was held, that such amendment was not invalid.
    Where the vote of a town may have the effect ofa contract with another party; this does not affect the power of the clerk to amend his record.

      Tolland,
    August, 1850.
    This power is derived solely from his official character, and does not depend on the permission of the court, in which the record is offered as an instrument of evidence, nor on an enquiry into the truth of it, as originally made, or as amended.
    An amended record, when offered in evidence, is, like an original record, conclusive evidence of its own truth. [As to most of these positions, and the result, two judges dissenting.)
    This was an action on an agreement, alleged to have been made by the defendants, in 1843, to assume the turnpike road of the plaintiffs, which passed through the town of Pomfret ; and alleging a breach, by the defendants, in not keeping said road in repair according to their contract, by reason of which an injury was sustained by a passenger.
    The cause was tried at Tolland, October term, 1849.
    On the trial, it appeared, that the accident causing the injury, happened on the 17th of January, 1844. The plaintiffs claimed, that the undertaking of the defendants covered this time ; in proof whereof, they offered in evidence a writing, purporting to be a copy of the record of a vote, passed at a legal meeting of the inhabitants of the town of Pomfret, on the 2d day of October, 1843, duly certified by Job Williams, clerk of said town. According to this document, the liability of the defendants commenced on the 1st of January, 1844.
    The defendants objected to the admission of such writing in evidence, on the ground, that it was not a correct copy of the record of the original vote, but materially variant therefrom; and in support of this claim, they offered in evidence the original record book of the town; according to which the liability of the defendants commenced on the 1st of April, 1844.
    The plaintiffs claimed, that the book had been altered, and did not contain a true record of the vote, but that the writing which they offered, contained the only legal evidence of the vote actually passed.
    Upon these conflicting claims of the parties, the court permitted the plaintiffs to proceed with their evidence, and to read the copy which they had offered, as prima facie evidence of the vote passed.
    After the plaintiff had closed their evidence, the defendants reverted to said record book, and called Mr. Williams, who was clerk of the town when said vote was passed, and had ever since continued to hold that office, to prove, that the book before the court was the record book of the town, and then read therefrom the vote in question, as it there appeared. Upon enquiry made by the plaintiffs, he testified, that he was present at the meeting when the vote was passed, and shortly after recorded it upon the town records, in conformity with the copy shown by the plaintiffs, supposing, at the time, that he had made a true record of the vote ; and under that impression, he made and delivered to the plaintiffs the copy produced by them. But he afterwards discovered, that he had made a mistake in recording the vote, and thereupon, in the month of March, 1849, he altered the record to make it as it now appears. This alteration he did not make from any memorandum which he had previously made, nor from any recollection of his own as to the terms of the vote; but upon enquiry of the moderator of the meeting, and other respectable persons then present, he became satisfied, that the record, as originally made by him, was erroneous, and therefore altered it to its present form, He was perfectly satisfied, that the record, as it now stands, was a true record.
    The defendants thereupon claimed, that the record as it now stands upon the book, was the only legitimate evidence of the vote; that no parol evidence could be received to contradict it; and that if such record be erroneous, the plaintiffs remedy is by a mandamus, or some other appropriate process.
    The court decided, that it was competent for the plaintiffs to show, by parol evidence, that the original record had been falsely and improperly altered, by the clerk, and so was not a true record.
    To show that the record had been rightfully amended, by the clerk, and made in conformity to the vote, as it was actually passed, the defendants offered the testimony of Charles Chandler, the moderator of the meeting, that the vote was passed in the form in which it stands recorded in the amended record.
    The plaintiffs objected to the admission of this evidence, claiming that no parol evidence was admissible to prove what vote had been passed, or to contradict the record as originally made ; and that, if it were competent for the clerk to alter his record. after it had been made, he could do it only from memoranda previously made, or at least from his own personal recollection, and not from information derived from others. But this objection was overruled, and the evidence received.
    The jury returned a verdict for the defendants; and the plaintiffs moved for a new trial.
    Welch and Toucey, in support of the motion,
    contended That the vote of the town of Pomfret, as originally re- corded, is the only proper evidence of what was done in the town meeting, Stat. 628. 1. (ed. 1838.). 2.
    That if, under any circumstances, the record may be amended, still the facts in this case did not warrant the altera- tion. There was nothing to amend by-no memorandum-no personal recollection-nothing but the information of others, out of court, and not under oath. This, instead of making a record, as the law regards it, of the highest sanctity, importing absolute and unimpeachable verity, would open a door for the introduction of the weakest and loosest of all evidence-nay, the instrument of fraud, whenever a town-clerk could be found, if honest himself, yet simple enough to be satisfied with the statements of others. They referred to and com- mented on Avery v. Butters, 9 Greenl. 16. Welles & al. v. Battelle, 11 Mass. R. 477. Thatcher v. Miller, in err. Id. 413. Hartwell & al. v. Littleton, 13 Pick. 229. 232. Cham- berlin & al. v. Dover, 13 Maine R. 472. Wilkie v. Hall, 15 Conn. R. 32. 3.
    That the vote of the town was, in this case, a contract between the parties; and no act of one party, without the censent of the other, could vary its terms. 4.
    That if there was an error in the record, as originally made, it could be rectified, by virtue of a mandamus, after a judicial investigation. 1 Sw. Dig. 563,4. T.
    C. Perkins and H. Johnson, contra, contended,
    1. That a town-clerk has power to alter the record of a town previ- ously made by himself. Welles v. Battelle & al. 11 Mass. B. 477. Hartwell v. Littleton, 13 Pick. 229. 232. Cham- berlin & al. v. Dover, 13 Maine B. 472. Baldwin v. Mar- shall, 2 Humph. 116. 2.
    2. That a town-clerk, in making his record, acts at his peril; and if he wakes a false record, he may be punished for for his misconduct. Welles & al. v. Battelle & al. 11 Mass. R. 481. Chamberlin & al. v. Dover, ubi sup.
    3. That in this case, there was no necessity for a mandamus. That is brought only to compel an officer neglecting his duty, to perform it; and the writ must state a refusal to do the act. 1 Sw. Dig. 564,
    4. That if the record is wrong as-it now stands, and a mandamus is the appropriate remedy, it is open to the plaintiffs. But if, on the other hand, the record now is right, there is ne occasion for resorting to it; the court will sustain the verdict. If, on the whole, the cause is rightly decided, no new trial will be granted.
    5. That towns have no power to contract to repair the roads of other corporations. The town of Pomfret did not take this as a town road. The turnpike company still remain liable to travellers for injuries resulting from defects in their road. This is, at most, a mere contract of indemnity; which a town has no power to make, unless specially authorised; and no special authority has been shown or claimed.
   STORRS, J.

The first question presented on this motion, is, whether the entry of the vote of the town of Pomfret, as originally made, by the clerk of that town, and as evidenced by the copy produced by the plaintiffs, or the entry of it as amended by him, and as it now appears on the record book, is to be deemed the true record of the proceedings of the town; and this depends on the question, whether the clerk had the legal power to make that amendment. A majority of the court are of opinion, that beth on principle and authority, it was competent for him to rectify any error which he had made in recording the proceedings of the town, by amending the record, so that it should describe those proceedings truly.

Our statutes expressly require town-clerks to keep the record books of their respective towns, and to enter truly all the votes and proceedings of the town. Tit. iii. ch. v. 58 p. 147. This duty is not performed, by an erroneous entry of those votes and proceedings; and unless we are to adopt the technical idea, that, as to any particular proceeding of the town, the clerk isfunctus officio as to his power of recording it, when he has once made an entry of it, however untruly, on the record book, we can perceive no good reason why it may not be rectified by him. We know of no authority which requires so narrow a construction of his powers: and it would, in many cases, work great inconvenience and injustice, not only to the town whose proceedings are thus recorded, but to others who are interested in those proceedings. If, when the entries of them are once made, it is beyond the power of the recording officer to amend them, it would be necessary, in every case of error, for those who might be affected by them, to resort to the dilatory and expensive remedy by mandamus, in order to have them corrected; and in many cases, there would be reason to fear, that such remedy would be quite inadequate, from lapse of time, or the death of the clerk, whose official position furnishes him the best means of knowing or ascertaining what was done by the town, or the conflict of memory among the spectators, to whom it would be necessary to resort for proof of the proceedings. Nordo we perceive any propriety in requiring this remedy to be resorted to, where the clerk is ready to correct his error. By amending the record himself he only does what the court would direct him to do, on the ground that his duty required it. An application for a mandamus, in such case, is generally unnecessary. To require it, would be to adopt a rule more strict than that which prevails in regard to amendments of judicial records.

But the law attaches much less sanctity and importance to the entries of the votes and proceedings of public corporations in their books, which are not technically records, but are termed public writings not of a judicial character, than to records properly so called, although the former are considered to be in the nature of records, and indeed are called such in our statutes, and have a like force and effect, when adduced in evidence.

Courts, however, have never adopted, and from their nature it would not be practicable to adopt, those strict, technical and peculiar rules as to their correction, which apply to the amendment of judicial records. On the contrary, it is deemed of so great importance to uphold the proceedings of our municipal corporations, that courts are disposed to be as indulgent in allowing entries of their proceedings to be amended, as is consistent with the safety of those whose in- terests would be affected by them. From carelessness, on the part of the clerks of our towns and other municipal corporations, or their not sufficiently appreciating the importance of fully and precisely describing their proceedings, they are frequently entered on their records very loosely and irregularly; and it is not to be expected that those officers will always be competent to perform their duty, in this respect, with the correctness which is desirable: to hold, therefore, that their entries, as first made, are beyond the reach of their subsequent correction, would produce the greatest confusion,

It is urged, that the sanctity of our records, and the security which they are designed to furnish, would be destroyed, and that they would be subject to constant mutilation and change, if, when once made, any alteration of them is to be tolerated.

We think, however, that while the amendment of them is confined to the officer whose duty it was originally to make them, and is allowed even to him only while he is in office, there is no serious ground for apprehension.

In the first place, there is every practicable security furnished to ensure a faithful discharge of the duties of these officers. They are selected, by the inhabitants of the towns, presumably for their integrity and capacity for the office; they are under an oath faithfully to execute its duties; their records are open to public inspection; and their entries, in the first instance, as well as any alteration of them, are made at their peril, as they are personally liable for all injuries arising from a violation or neglect ofduty. These coustituteas strong safeguards against falsehood in amendments to the original entries, as in those entries themselves.

But, lest these securities should prove insufficient, the law further provides a most effectual remedy for any errors in their records, whether arising from design, mistake, or accident, by the writ of mandamus, by means of which these errors may be corrected, on the application of any person interested; so that whatever may be the conduct or disposition of the clerk, it is not at his option, either as to his first entries or subsequent alterations, to determine how the record shall ultimately stand.

The authorities fully establish the power of clerks of towns and other municipal corporations, to amend their records, while they continue in office.

In Welles & al. v. Battelle & al. 11 Mass. R. 477. the record was made by the town-clerk, when in office, under a former election, and was amended by him, by adding to it words, showing by whom the oath of office was administered to him, when he was formerly elected to the office, and also to assessors chosen at the same meeting; and the amendment was made several years after the original entry of their appointment, and after the suit was brought against said assessors, in which it was necessary for them, in order to sustain their defence, to show by whom the oath to them was administered; and the amendments were held to have been legally made.

The correctness of this decision was recognized, by the same court, in Hartwell v. Littleton, 13 Pick. 229. in which, however, it was decided, that one who was formerly a town-clerk, could not, after he had ceased to be such, amend a record made by him while he was in that office.

In Bishop v. Cone & al. 3 N. H. Rep. 516. it was held~ that a town-clerk, while in office, might amend his record of a vote of the town to raise money by a tax, under which vote the defendants justified, as select-men of the town~in an action of trespass de bonis, brought against them for issuing a warrant for the plaintiff's proportion of said tax, where the vote, as amended, would constitute a justification to the defendants in issuing said warrant, but as originally recorded~ would be no defence.

In Chamberlain v. The Town of Dover, 13 Maine R. 466. which was an action of assumpsit on a contract alleged to have been made with the plaintiff, by certain persons assuming to be authorized, by the defendant, to coptract on their behalf, a vote of the defendants was, at the instance of the plaintiff, allowed to be amended, after the commencement of the suit, by the present clerk, who made the original record, so as to show such authority, which did not appear from the vote, as originally recorded. The court say: "It is the duty of the clerk to record the doings and proceedings of the town; and if through inadvertence or misapprehension, the record has been defectively made, it is competent for him, while in office, to complete it according ~o the truth. He acts at his peril, and will be liable, if he falsifies or mistakes what it is his duty to record." This case shows the invalidity of the objection made to the amendment, in the present case, on the ground that it respects the terms of a contract between the parties. The vote is only an act of the town which furnishes evidence of the contract; and in regard to the propriety of allowing it to be amended, we perceive no difference between such a vote, and any other by which its own interests, or those of others, may be affected.

Nor is the amendment invalid, in this case, because it was made, by the town-clerk, not on his own personal knowledge, but on information derived from others. An amendment of a record stands on the same ground, in this respect, as the original record; and neither can be impugned, by an enquiry into the sources of knowledge on which it was made. It is not unusual that entries in our public records, even in those of a judicial character, are made by the recording officer, without any personal knowledge of the truth of what is recorded: but, when thus made, has it ever been supposed, that they were not to be deemed records, on that account? It is sufficient, that the fact recorded is ascertained by him, by whatever means, and that it is recorded by him, or by his authority.

Nor is his power originally to make, or afterwards to amend, a record, to be determined, by an enquiry into the truth of it, as so made or amended, Such power is derived solely from his official characterr and does not depend on the permission of the court in which the record is offered as an instrument of evidence. The only enquiry then, is, whether it is a record. Being shown to be such, it imports absolute and uncontroulable verity, and is, therefore, conclusive evidence of the facts which it states. It would be obviously absurd to make its admissibility or effect, as a record, depend on previous proof of its truth.

We attach no importance to the testimony adduced, in this case, as to the truth of the facts stated in the record as amended, as it was not claimed, that the amendment, if erroneous, was made fraudulently. The town-clerk having legal authority to make the amendment, and having exercised it honestly, the amendment was, like an original record, conclusive evidence of its own truth; and it was the duty of the court to receive it as such. If it was in fact false, the remedy was a suit, by the party injured, or an application for a mandamus.

We think, therefore, that the amended record offered by the defendants, on the trial, is to be deemed the true record of the vote of the town; and that, as it did not support the contract declared on, the plaintiffs are not entitled to a new trial. Hence it is, unnecessary to determine, whether the defendants had authority to make that contract.

In this opinion, Waite and Ellsworth, Js. concurred.

Church, Ch. J.,

dissented. The plaintiffs offered in evidence, a certified copy of the vote of the town of Pomfret, in support of their claim. This was the proper evidence of the fact intended to be proved by it. The defendants attempted to repel its effect, by introducing what purported, on its face, to be the original record, but which was not in truth the original, but on the contrary, was one which the town clerk had mutilated, and essentially altered from its original shape and substance, into the condition in which it appeared on the trial. And the real question is, whether the town-clerk had a legal right to alter the record of the votes of the town of Pomfret, under the circumstances set up in the motion.

The vote was passed, at a town-meeting, on the 2nd day of October, 1843, and was then recorded. This record was altered, in March, 1849, six months after this suit was commenced ; and it was altered without the aid of any written memorandum to aid the memory, and without any recollection by the clerk of the new and different fact inserted into it, and only upon the verbal representations made to him, by the moderator of the meeting, and of other respectable persons, nearly five years after the meeting was holden.

I cannot acquiesce in the views expressed by the court; and I am persuaded, if the principle and the practice, now sanctioned, shall prevail and be applied to other cases, that they must have the effect of extensively disturbing titles, derived not only from the acts of corporations, but also from deeds and judicial records. Our public records have, hitherto, been supposed to furnish the best evidence of the facts stated by them, and to be a safe reliance. If a town-clerk may, without any reliable memorandum, and even unaided by his own memory, thus alter a record of a town vote, he may, depending alone upon the distant and uncertain recollection of others, as well change the certificate made upon a deed of land when left for record, and overturn the titles of purchasers. And so too, the clerk of a court, who like a town-clerk, is only a ministerial officer, may, in the same ex parte manner, essentially alter the records of the court. In this way, the uncertainty of representations is substituted for recorded and sworn truth.

Since the decision of the case of Wilkie v. Hall, 15 Conn. R. 32. I supposed it'was considered settled, in this state, that the record of a court could not be altered by the clerk, after the expiration of the term at which the cause had gone into judgment ; because then he was the mere keeper of the record; and then, it riquired the interference of the court itself, to justify as alteration in a material part. The same salutary principle is equally applicable here, so far as the cases are analogous. And here, after such a lapse of time, and without memorandum or memory to aid the clerk, application should have been made, by proper process, to a proper court, to correct a mistake in the record, if one existed, and thus give to the opposite interested party, an opportunity to show that the record was already right.

Cases in other states have been relied upon here, in which town-clerks have been permitted, under certain circumstances, to alter town records; but none of them compare with this; and I believe none can be found, where an ex parte alteration has ever been sanctioned, unless upon what courts have believed to be equivalent to the certain recollection of the clerk.

A record of a municipal corporation, certainly when made under the influence and sanction of an official oath, imparts as much truth and certainty, as a simple contract in writing, and as much as a deed under seal; but these cannot, in a collateral way, be altered or impaired, by any parol evidence or representations of witnesses, not even when such representations are made by witnesses under oath, much less by the mere unattested representations of even respectable men.

But this alteration is justified, because it is said to be ac- cording to the truth. Non constat, This is the very thing in dispute; and the plaintiffs complain here, that these parol representations have been permitted to controul the true original record, of which they had been furnished with a certified copy. Parol evidence is often offered to controul a written contract, in the same collateral way; and is always offered to change or alter it, as in this case, according to the truth but it is always rejected. Suppose a party, or a stranger, had altered a written contract; and, in an action upon it, should offer evidence that it was only altered according to the truth, and should offer parol evidence to prove it; would it be admitted, on this ground, or any other? Nobody will claim this. But, in the present case, witnesses were offered, and admitted, to prove, that this record was altered according to the facts of the case ; and as well may they be admitted in all cases where a party seeks to break down written securities, by parol evidence, He has only to alter them, and then prove they were altered according to the truth.

To prove the acts of municipal corporations, acts of legislation, &c., we require a certified copy of the records; but why do we require this, if verbal declarations are of equal certainty, and indeed controuling proof?

Suppose, in the present case, the contract in question, instead of assuming the form of a corporate vote, had been executed by the plaintiffs, on one part, and an authorized agent of the town of PoMfret, on the other; would parol declarations, or parol proof, have been admitted, to show what the defendants now claim to prove?

If, then, a corporate vote, duly recorded by a sworn clerk, is of equal verity with a simple contract in writing, the declarations of witnesses, made to the clerk, without oath, and the parol testimony of witnesses admitted in court, were improperly received and heard.

The defendants have referred us to authorities, which prove, that an alteration cannot be made in a town record, by a former clerk, not now in office. But why not, if the propriety of the alteration depends upon the fact whether it conforms to the truth of the case? It can then make no difference, whether the alteration be made by a clerk in or out of office, or even by a stranger.

I am persuaded that a material alteration cannot be made in any record, by the mere ex parte act of the clerk, unless it be made under the sanction and influence of his official oath; an oath, if I mistake not, which requires him to make a true record, not of what he has heard, and therefore believes, but of what he knows officially; and this principle, I think, is very clearly recognized, by the court, in the case of Hartwell v. Littleton, 13 Pick. 229. cited by the defendants.

The question was put in argument; must a party suffer by a mistake, or the neglect of a clerk, and is there no remedy? Yes, there is a remedy, a plain one, and such an one as is resorted to every day, in cases of mistakes or omissions in deeds, or other written instruments, and where they do not express the truth of the case ; but this is not by permitting a party, or any body else, to alter them, but by an application to a court of equity, or in cases of records, by mandamus, in which the parties in interest can be heard upon the very question, and the deed or the record be set right, by authority of law, and not by any unauthorized individual. This is the only way, as it seems to me, in which justice can be done, titles and rights protected, and the analogies of the law preserved.

In the case of Wilkie v. Hall, it was said, that the amendment was made too late, because nearly five years had elapsed from the time the officer had made his return, which he attempted to alter. In the present case, the same thing is true.

HINMAN, J. was of the same opinion.

New trial not to be granted.


author: Ellsworth, J.

text:
    Mix & al. v. Cowles & al.

      New-Haven,

    July, 1850.
   Ellsworth, J.

I cannot concur in this opinion of my brethren. It is with great diffidence that I dissent. Nor would I give my views in detail, did I not believe that a dangerous precedent is about to be established. Unless I am mistaken in the features of this case, it cannot be reconciled with numerous adjudications of this court.

Brown, the mortgagor, carrying on business in Meriden, wished to purchase goods in New-Haven, as he might need, from time to time. The plaintiffs expressed a willingness to open an account with him, but as they doubted his credit, and the account might run indefinitely, he was to keep them secure for any future balance, to an amount not exceeding 200 dollars, to which extent they would trade. On this footing, the parties concluded to open an account. Thereupon Brown gives the plaintiffs his note of hand, for 200 dollars, and secures it, by mortgaging the land in question, “ as a basis for credit.” After this, the account is opened, and a bill of goods of about 100 dollars, is taken, the same day, and with the exception of 3 dollars, no more goods are taken, for some months; when Brown makes a payment of 67 dollars, and takes more goods. So the account runs on, varying, from time to time, as payments are made and credited, and when the 200 dollar note falls due, a new note is given in lieu thereof; which latter note, when due, is taken up by Brown, who borrows of the plaintiffs therefor, in part, 110 dollars, 12 cents. Long after this, when Brown comes to sell the premises to Mrs. Cowles, in order to ensure a perfect title, he hands her the said second note, then in his hands, paid and extinguished, as aforesaid.

Now, in the first place, my conclusion from the facts found, is, that this is nothing more than the common case of an arrangement for afuture running account, as shall be mutually convenient; or, in other words, whenever the parties are agreed, from time to time, upon the goods to be taken, the price and credit. Brown does not actually bind himself to take any goods at all, much less at any particular time, or amount, or price, or credit. Nor do the plaintiffs enter into any legal obligation to sell him goods; not to say, there is no written promise to do it, there is none at all. They were not bound to have on hand the particular goods asked for; they might ask a higher price and a shorter credit than he would consent to ; and he might prefer trading elsewhere. So they might have stopped business entirely. Hence there is no absolute compact on either side; nothing in the shape of a sale or debt; nothing, indeed, more than a preliminary arrangement to trade, as the parties shall agree. Neither felt hound beyond their convenience, except that nothing more was expected to be said about the solvency of Brown, if the balance did not exceed 200 dollars during the trade, the mortgage securing that amount. True, both parties expected to trade with each other; but there was nothing more than an expectation, and certainly nothing which the law would enforce. Now, this expectation is converted into a perfect obligation-a sale-a debt, and a note of hand is given, assuming the utmost limit of that expectation as the amount of the true indebtedness, while every thing is optional and contingent, as in running accounts generally.

If in such a case, Brown can lay an absolute debt on his farm, to the extent of this expectation, what becomes of the statute, requiring incumbrances on real estate, to appear truly on the records of the town? And what, of the numerous decisions of this court, none of which allow less to appear than the amount and nature of the indebtedness intended to be secured. In North v. Belden, Ch. J. Williams, in giving the opinion of the court, says: " One principle seems to be definitely settled, that the real nature of the transaction, so far as it can be disclosed, must appear on the record with reasonable certainty; and if the deed does not actually give notice of any condition, or other circumstances, which might be important, it should, at least, point out a track, which the enquirer may pursue, to obtain it. Thus, it has been considered as settled, long since, that if an absolute deed is given with intent to secure a debt, such deed will be void, as respects bona fide creditors, as it does not disclose the real nature of the transaction. It places the parties in a false position, as it respects the public. It holds out the grantee for the real owner, when in fact the grantor is, or may be, the owner. It tends to full the creditors of both parties, (as the case may be,) into false security, and to conceal from them the real condition of their debtors.” So in Sanford v. Wheeler, Ch. J. Church, in giving the opinion of the court, says: “ But what have we here? A mortgage given to secure the payment of a note of 2,601 dollars, 16 cents, due from the mortgagor to the mortgagee, payable absolutely and unconditionally, and on demand; and without any intimation that any other than an absolute and bona fide debt, of the description mentioned, was in the contemplation of the parties.”

Suppose it is mutually agreed between a person in Hartford, and merchants in New-York, that they will open an account, and carry on trade with each other, but the balance must never exceed 5000 dollars. Is this any thing more than an arrangement to trade, as the parties shall agree ? And can the trader in Hartford, at once, give his promissory note for 5000 dollars, payable in ninety days, and secure it against his bona fide creditors, by mortgaging his farm ? If he can, then hereafter an honest intention is all that will be required for incumbering one’s estate, to its full value.

Inno case, from Griswold & al. v. Pettibone, down to Merrills v. Swift, has a less rigid rule been allowed, than that already stated, viz., that the condition of the deed shall show the nature and the amount of the obligation or indebtedness. Do these appear here? Not at all. Does it appear that this note is a mere “ basis of credit ?” Quite otherwise. Who will say, this record gives correct information ? It declares there is a debt of just 200 dollars, due in ninety days from date, when perhaps there is not a dollar due. Nor is the enquirer put upon a “track,” to receive further information ; his eyes rather are filled with dust, to stop enquiry. The fact is, the record is all false ; and it must be so, while an absolute note may be given to secure the balance of a future account, shifting from time to time, or perhaps not commencing at all.

Let me ask, if a person can give a present note and mortgage for future loans, as and if the sums shall be wanted from time to time, and the lender shall have the money by him? Nor would his promise so to loan the money, if wanted, make any difference. In the mean time, how utterly untrue and deceptive is the record? The borrower may not call for the money; and if he does, he may not retain it any time; he does not obligate himself to take it, or to keep it. The mortgagee may have failed, before lending the money-any part, or the whole of it; he may have removed from the state, or died; he may refuse to do as was expected, or as was agreed to be done. All this while, the mortgagor's farm appears to be under a heavy debt, which deceives and defrauds creditors. In Griswold & al. v. Pettibone, the court held a mortgage to secure "all future indorsements," was void as to creditors, though this was stated in the deed. Here, it is not stated even, but the contrary. The language of the court in North v. Belden, when speaking of a promise to do future things, is exceedingly appropriate: "Consequently, a person may convey all his estate to a friend, who shall promise bone fide to indorse for him, and these indorsements may fluctuate from time to time, in such a manner, that no one can tell the state of the property, except as the parties may choose to disclose it; and thus the real state of the title, instead of appearing upon the record, could only be found in the memory of the parties."

But it is said, at all events, the mortgage is good for the first bill of goods ; for that is a part of the transaction. Were this indeed so, it would not render proper a judgment for the whole indebtedness. But of what transaction, I ask? Why, the giving of an absolute note for a future contingent account which cannot be done, to affect bonafide creditors, The note is the thing objected to, not the bill of goods-that is well enough-but it does not reach the difficulty, since the note is given for double the debt, and any future debt, or in analogy to the case last cited, for any "future indorsements."

Besides, I see no difference, whether the first bill of goods purchased, was purchased on the same, or any other day, after the note was given and secured. It was after it was given, and that is enough; it was a part of the future credit.

It is again said, Mrs. Cowles has no better right than Brown himself; for she is not a purchaser-she paid nothing. Why not? Brown owed her 1200 dollars; and she took for this debt, a clear title to the land in question, in payment. The land belonged to Brown; and why could he not pay the debt in land? Her havinga lien on it makes no difference.

So too, before Brown sold to Mrs. Cowles, he took up and cancelled the second, the renewal note himself and handed it to Mrs. Cowles, as cancelled, to assure her the land was free and clear. Had she not been satisfied that it was so, she would not have given up her debt, or taken the farm in payment.

Decree reversed,

ELLSWORTIJ, J. dissenting.