text:
    Giddings and others vs. Emerson.
    On the hearing of a bill in chancery against A. B. C. D. E. F. and G., to establish and protect, in the plaintiff, a right to maintain a dam, it appeared that in 1845, A. and B. erected a manufactory upon land then owned by them, and also, upon adjoining land, then owned by C. and D., for the purpose of creating a water power for said manufactory, they erected the dam in question, by means of which the land of A. B. C. D. and E. was flooded, it being mutually agreed that said dam might be maintained so long as the parties could agree, on the payment of seven dollars annually. G. afterward purchased of B. one acre of the land so flooded, and in April, 1853, A. and B., by a warranty-deed, with the usual covenants, conveyed to F. by exact lines, the land, with said manufactory standing thereon, and verbally represented that the dam was appurtenant thereto, and could be maintained for ninety-nine years, at its present height, and that the several owners of the land flooded by means of it would lease the same to him. And G. and D. executed leases for that purpose, reserving therein a stipulated annual rent. In 1854, F. conveyed said land and manufactory to the plaintiff, adding to the description the words “being the same land, and all the same, and none but the same that was deeded to me by A. and B.” The plaintiff immediately, and with the knowledge of all the defendants, and without objection from any of them, commenced, and for three months continued to make repairs upon the dam. No rent for the land flooded had ever been paid, either by F., or by the plaintiff, and the time limited for its payment in the leases, having expired, A. and G. removed the dam. Held 1. that G. E. and F. ought not to have been made parties to said bill. 2. That the other defendants were not estopped from denying the plaintiff’s right to maintain said dam. 3. That the only right of the plaintiff in the land of G. and I). was acquired by their leases to him. 4. That the plaintiff, having neglected to pay the rent reserved in such leases, the lessors had a right to remove said dam.
    This was a bill in chancery, brought by Daniel Emerson, against William W. Giddings, Alden Giddings, Jabez W. Giddings, Wooster B. Seymour, Michael Seymour, Sylvester Seymour, and Horace Johnson, praying the court to establish and protect, in the plaintiff, a right to keep and maintain a certain dam, upon the land of two of the defendants.
    At the term of the superior court, holden in 1855, the cause was referred to a committee,'whose report embraced the following facts:

      In the summer of the year 1845, the defendants, William W. and Alden Giddings, erected a sash and blind factory, consisting of one building, with the machinery therein, and a small building for a paint shop, upon the premises described in the plaintiff’s bill, and at or about the same time, erected, of wood and stone, in a substantial manner, upon land of the defendants, Michael and Wooster B. Seymour, lying east of, and adjoining, said first named premises, a large dam across a stream of water, which flows by said factory, and contiguous thereto. The dam was erected for the sole purpose of ponding the waters of said stream, and making the same available for propelling the machinery of said sash and blind factory, and was used for that purpose, from the summer of 1845 to the spring of 1850.
    The waters of said stream, when so ponded, flowed back upon land of the said William W. and Alden, covering land of said Michael and Wooster B., and land of said Sylvester Seymour, one of the defendants, and so continued to cover the same, down to the time when said dam was partially destroyed, as hereinafter stated; with the exception of a portion of the time after the year 1850, and before the purchase of the premises aforesaid, by Horace Johnson, on the 5th day of April, 1853.
    The dam was erected with the consent of said Michael and Wooster B., with their full knowledge that the same was to be used in ponding the waters and flowing the lands aforesaid, for the purpose of making said water available for said factory.
    Immediately after the erection of the dam, buildings and machinery, William W. and Alden agreed with Michael and Wooster B. verbally, for the privilege of flowing so much of the land of said Michael and Wooster B. as said dam would then flow, at an annual rent of seven dollars, so long as the parties could agree; and at the same time, made a similar verbal agreement with the defendant, Sylvester Seymour, aforesaid, so long as they could agree on the payment of an annual rent of seven dollars; conditioned that the said William W. and Alden should erect, for said Sylvester, on a portion of his land flowed, a bridge, and should also keep the same in repair, which they afterward did erect.
    After the erection of said dam, and before Johnson purchased said premises, Jabez W. Giddings purchased of said Alden about one acre of the land so flowed, and has ever since owned the same.
    On the 5th day of April, A. D. 1853, said William W. and Alden sold and conveyed the premises upon which said factory and buildings are situated, to Horace Johnson, by a warranty deed, in the usual form, without any exception or reservation. At the time said sale was negotiated, William W. represented to Johnson that said dam belonged to said William W. and Alden, and was connected with and appurtenant to said premises and buildings, and they had good right to convey the same ; that there would be no difficulty in Johnson’s flowing all the land which they had flowed, and all which said dam, at its then present height, would and did flow, on the annual payment by Johnson to the several parties owning said land, of a sum amounting to twenty-two dollars; that he, the said William W., had seen all the owners of said land; that said owners were willing to sign and execute leases, confirming said right in said Johnson, his heirs and assigns, and that said William W. would procure from each of said owners, to wit, Jabez W. Giddings, Wooster B., Michael, and Sylvester Seymour, leases, for that purpose, for a period of ninety-nine years therefrom. In pursuance thereof, William W. on the 11th day of April, 1853, caused to be executed two leases; one from Jabez W- and one from Wooster B., which were to be void on the non-payment of a stipulated rent.
    At the time of the purchase by Johnson, the pond was full, and the waters flowed back upon the lands of the several owners aforesaid, to the same extent as they had continued to do, from the time of the erection of the dam to the 7th of April, 1854.

      Said Johnson entered into the possession of, and used, the premises described, conveyed to him by said William W. and Alden, in manufacturing in the same manner, and to the same extent they had formerly been used, until the 4th of October, 1854, when he sold the premises, dam and water power, and conveyed the same to the plaintiff, by warranty deed of that date, in the usual form, and the plaintiff immediately entered into possession of the same, the descriptive portion of which was as follows: “ A certain piece or parcel of land situated in said Hartford, bounded as follows, to wit: north and west by highway, south by land of Martha Giddings and Sarah Clark, (said boundary being a straight line, running due west, from a point one rod south of the southeast corner of a certain paint shop, standing on said land, to the highway,) east on land of Michael L, Seymour, (said boundary being a straight line, running south from the northeast corner of a sash and blind factory, standing on said premises, to the southern boundary,) containing one quarter of an acre, more or less, together with the buildings thereon standing. Being the same land, all the same, and none but the same, that was deeded to me by William W. Giddings and Alden Giddings, by their deed of April fifth, eighteen hundred and fifty-three.”
    After taking possession of the premises, said factory continued to be, for a considerable time, operated in the same manner, and by means of the same power, that it had been, during the ownership of said Johnson.
    When the last named sale of said premises was in process of negotiation, Johnson represented to the plaintiff that the dam was part of the property to be conveyed by him to the plaintiff, and that the right to flow said land and to use said water, in connection with said factory, was appurtenant to the premises and buildings to be so conveyed ; that he purchased said premises of said William W. and Alden, and sold the same to the plaintiff, including said dam, to be used in connection with said water power.

      The plaintiff, immediately after his purchase, commenced repairing the dam, buildings, water wheel and machinery, and put the same in good order for manufacturing purposes, at an expense of one thousand dollars. During a period of three months, while such repairs were going on, all the defendants, except William W. and Alden, saw the repairs, as they were made by the plaintiff, and knew that he made them with the intention of using the premises, buildings, wheel and machinery, in connection, and only in connection? with, said power,. and for manufacturing purposes ; and during all the time the plaintiff was so engaged in making said repairs, he supposed that he had a right to keep the dam where it then stood, and to use the premises, buildings, water wheel and machinery in connection with said water power, all which was well known to the defendants, agreeably to the contracts and agreements entered into by said Johnson and the other defendants, or either or any of them, and said Johnson and the plaintiffs ; neither of the defendants ever objected to such use of the same, or informed the plaintiff that he had not the right so to use them, or that the defendants, or either of them, had any rights, or claims, inconsistent with the rights and claims of the plaintiff, except as is hereafter stated.
    In the month of January, 1854, William W. Giddings informed the plaintiff that there was a mistake, in the description of the premises, in the deeds of said William W. and Alden to said Johnson, and of said Johnson and the plaintiff, by which mistake, more land was included in said description than was intended by the parties to the first named deed, and requested the plaintiff to give up said land, so included by mistake, and that unless he, the plaintiff, surrendered so much of said land, as was thus included by mistake, he should not be permitted to flow that portion of the land covered by said pond of water, which belonged to said William W.
    The plaintiff continued in the use and occupation of the premises and water power, and continued his repairs upon the dam, buildings and machinery, and kept said dam at the same height it had been previously kept by William W. and Alden and said Johnson, till the 6th day of April, A. D. 1854, when Michael Seymour, in the presence of William W. Giddings, requested the plaintiff to give up the land, which was, by mistake, included in his deed, and informed the plaintiff that if he did not surrender all right to the land so included by mistake, he, said Michael, would give said William W. authority to pull down the plaintiff’s dam. The plaintiff declined to give up the land, as required, claiming that the same belonged to him. On the morning of the 7th day of April, said William W. and Jabez W. proceeded to tear down said dam, or so much thereof as was necessary to draw off the waters of said pond, and prevent the same from accumulating therein, so as to be available for any use whatever, in connection with said factory and premises of the plaintiff; and the said Jabez, Michael, Wooster B. and Sylvester, afterward occupied and used the land, formerly covered by the waters of said pond, for agricultural purposes.
    On the morning before said dam was thus torn down, and after the time limited in said lease, within which said rent was to be paid, said Jabez W. told the plaintiff that said lease was forfeited, by reason of the non-payment of rent, and the plaintiff replied that he would have nothing to say to him.
    The premises are of little value, except for manufacturing purposes in connection with said water power.
    Said Johnson, after he conveyed the premises to the plaintiff, informed him for the first time, that there was an annua rent to be paid to the owners of the land, amounting in all to the sum of twenty-two dollars each year.
    The annual rent, which Johnson agreed to pay to the several owners of the land aforesaid, for the privilege of flowing the same, was twenty-two dollars, to be paid as follows, to wit: eight dollars to said Sylvester Seymour, seven dollars to Michael and Wooster B. Seymour aforesaid, and seven dollars to Jabez W. Giddings, which sums, the committee found, were a reasonable rent therefor.
    No demand was ever made of the plaintiff for rent, and none ever paid, either by said Johnson or the plaintiff, to said Jabez W. or Wooster B. under the leases aforesaid.
    The superior court, at the term holden in December, 1855, accepted said report, and decreed that said dam and water power, and the right to use said water power appurtenant to, and annexed to, said premises, conveyed by said William W. and Alden Giddings, to said Johnson, by their deed of April 11, 1853, and by said Johnson to the plaintiff; and also the right to keep, restore, maintain, and continue said dam, at the height it was at the date of said respective deeds, viz.: the 11th day of April 1853, and the 4th day of October, 1853, and the right to pond and flow, and to continue to pond and flow, all the lands, which were, or might have been, or might be, ponded and flowed by keeping and maintaining said dam at its then height, and also the right to repair, renew and strengthen said dam, as might be reasonably necessary, and to enter on the lands of the defendants, so far as might be necessary reasonably to make said repairs, all which said rights, so decreed and declared to be appurtenant to said premises, were decreed to vest in the plaintiff as owner of the same, and in all those who should hold from, or under him, for the period of ninety-nine years from the 11th day of April, 1853, at and after which time all such rights, so decreed to be appurtenant, should cease.
    The court further decreed that the plaintiff, and all who should hold said premises from, or under him, should pay the rent provided for, in the several leases from the aforesaid Michael, Wooster B., and Jabez W., in pursuance of the stipulations in said leases; that the plaintiff should keep and maintain a sufficient bridge upon land of said Sylvester Seymour, and also enjoined the defendants, and each of them, from, in any manner, molesting or disturbing the plaintiff in his right to pond and flow the land of the defendants, and the right to maintain said dam at its former height, and decreed that the plaintiff recover of the defendant his costs.
    To obtain a reversal of this decree, the defendants, by motion in error, brought the record before this court for revision.

      Hubbard in support of the motion.

      Welles and Eaton against the motion.
   Ellsworth, J.

This is a bill in chancery to establish in the plaintiff a right to maintain a certain dam upon the land of two of the defendants; likewise to flow their land, and the land of others of the defendants. The case discloses that the plaintiff owns a quarter of an acre of land, and a shop, which he purchased of Horace Johnson, by deed, dated the 4th day of October, 1853, which land and shop, Johnson purchased of William W. Giddings and Alden Giddings, in the April preceding ; both deeds make use of the same language in describing the premises. It is worthy of note, that the deed to the plaintiff has in it the further words, “ being the same land, all the same, and none but the same, that was deeded to me by William W. Giddings and Alden Giddings, by their deed of April 5th, 1853.” Both deeds give the exact lines and visible boundaries of the grant, with unusual minuteness and particularity; and it is obvious, that when the plaintiff purchased, and when his grantor, before him, purchased, the premises were examined, or were already well known and understood by the parties. There is not a word in the deeds about drain, or right of flowage, and as these easements were, and must have been seen to be, without the limits and boundaries mentioned, it would seem that the plaintiff must have seen, that he did not acquire, by any specific description in the deed, the rights he now demands, but that he expected to obtain them, from some other quarter. The deed, too, is with easements, but the land and shop alone are specifically mentioned. The word appurtenances, is in the subsequent and printed part of the deed, and may have its proper effect, and were it agreed as correct in law, that this word was enough to carry, along with the land, the artificial easements enjoyed at the time, in connexion with it, it is by no means certain, that it would include any more, or other easements, than the grantor was legally entitled to, as connected with the thing specifically granted. The word, appurtenance, does not necessarily define the exact measure or extent of the thing, said to be appurtenant; and as under the leases, there existed legal appurtenances, we are not prepared to say that the word appurtenance, merely, following a specific grant, as in this instance, can be construed to embrace any thing' more than that legal appurtenance. Manning v. Smith, 6 Conn. R., 291. 3 Cru. Dig., 47, § 51. Whaley v. Thompson, 1 B. and P., 371. Grant v. Chase, 17 Mass., 443.

The dam stood on the land of Michael Seymour and Wooster B. Seymour, and it set back water upon their land, and the land of Sylvester Seymour, and Jabez W. Giddings. The question now is, how have these persons lost the use of their land, and by what means, and principles of law, has the plaintiff acquired the easements he claims. The statutes of the state prescribe a mode of acquiring such rights, to which we naturally look, when such rights are claimed, but no deeds, or leases, are set up, or pretended by the plaintiff, nor a title by possession, nor any title whatever by conveyance, but only that these land owners are estopped from claiming their own property; not that they have been paid any thing, but such are the circumstances in the case, such the acts of the plaintiff and the silence of the defendants, that it would be a fraud in the defendants now to come forward and claim their lands, after what has openly taken place. Such a right to another man’s farm, all will agree, should be clearly and satisfactorily made out or be abandoned ; every presumption of law, and of fact, is against it, especially when mere silence is the circumstance to conclude the party, as in this case. Silence, at the best, in relation to the use and occupation of real estate, as a ground of title by estoppel, is very unsatisfactory, and objectionable, if the doctrine of estoppel be allowed in such case at all. The rale is laid down in Pickard v. Sears, 6 Adol. and EL, 469, in a manner as satisfactory as in any other case, or in any treatise. In substance it is this: if a party wilfully misrepresents a state of things, and induces another to act upon a belief in the truth of his representation, and that person does so act upon it, to his prejudice, the party who makes the representation is estopped from proving the truth; it is a bar to the evidence being received and acted upon. But this, as has been said of all estoppels, is odious, and the conditions, which warrant its application, must be clearly proved. The misrepresentation must be, if not absolutely wilful, grossly careless and culpable, and intended to induce the other to act upon it to his prejudice, and the other must have acted upon it to his prejudice. We refer further to Howard v. Hudson, 20 E. L. and Eq., 52. Freeman v. Cook, 2 Exch., 654, and the numerous cases in our own reports, where this doctrine has been most largely discussed, and repeatedly decided.

Let us now turn our attention to the facts and circumstances which are claimed to justify the application of this doctrine to these defendants. At the time William W. Giddings and Alden Giddings made the dam in question, knowing they had no right to use the land lying without the limits of their said quarter of an acre, they got leave of Michael Seymour and Wooster B. Seymour, who owned, and still own the land, where the dam was placed, to build their dam there, and flow their land,-during the pleasure of the parties, by paying them the annual sum of seven dollars ; and a like agreement was made with Sylvester Seymour, for the use of his land, at the same rent. When William W. Giddings, and Alden Giddings, sold to Johnson, the plaintiff’s grantor, in April, 1853, they distinctly told him, under what leases they had enjoyed their water power, and informed him that he could have the same rights renewed to him, by paying the same rent, and William W. Giddings said that he would himself get leases from them for ninety-nine years, and likewise from Jabez W. Giddings, who had now become a proprietor of some of the land which was flowed. Leases were given for ninety-nine years, by said Wooster B. and Jabez W., to Johnson, bearing date the 11th of April, 1852, and whether Michael Seymour, or Sylvester Seymour, gave leases, does not appear, nor whether they objected to Johnson’s flowing their lands, under the verbal agreements with William W. Giddings, and Alden Giddings, and they had never expressed a wish to put an end to those parol leases. When, after all this, Johnson came to sell the premises to the plaintiff, he described the entire subject matter with the exactness and particularity already mentioned, saying not a word in the deed about a privilege on other persons’ lands. Now, the record finds, that whatever the defendants knew of the plaintiff’s view, or belief, (upon which he now claims the estoppel,) as to his title or rights when he bought, or afterward, while he was expending his money, it was known by the defendants, in the language of the report, as follows: “ All which was well known by the respondents, agreeably to the contracts and agreements entered into by, or between, the said Johnson and the other respondents, or either, or any of them, and said Johnson and the petitioner, as found in their report.” Our interpretation of this language of the report is, that the plaintiff, at the time he purchased the premises of his grantor, Johnson, was informed of the character and limit of Johnson’s right, as one in fee only of the land described in the deed, with the leases to flow other lands, at an annual rent. At any rate, we see nothing here, upon which to build the doctrine of estoppel. And we are more inclined to this opinion, from what we have already stated, that the plaintiff must have known that his deed was a barren grant of a specific piece of land, or quarter of an acre, and no more, so far as the lines and boundaries are to speak of the things granted. We are by no means satisfied that, during all the time, the defendants did not truly believe, that their leases were binding and operative, and that the plaintiff wished it to be so, and so understood it, and hence knew of no occasion to speak to the plaintiff, when they saw him repairing his dam, and fitting the shop and machinery for his uses.

Much has been said about an equitable estoppel in this case; that it would be unjust, and fraudulent, in the defendants, after what the plaintiff has done for them, to insist upon their legal rights by removing the dam. This whole doctrine of equitable estoppel by matter in pais, when applied to real estate, the title to which is matter of public record, is to be considered, and applied, with extreme care, and caution. It may be applied, we allow, in a perfectly clear case, as where, to let in the truth would operate as a palpable, if not a meditated fraud, but it must be a clear case indeed, much more so than the one now before the court, for here the application of the rule would only protect the careless, the indolent and the presumptuous, to the injury of those who were fairly and justly relying upon their clear and undoubted rights. The very decree, itself, shows the misapplication of the doctrine contended for, for wherein is it inequitable, and fraudulent, for the defendants to assert their rights to their lands, if it be true that the plaintiff was flowing their lands by license, or under leases, which the plaintiff will not keep, but repudiates, and by so doing, has brought on himself the destruction of which he complains,— which leases the decree establishes as correct, and requires the plaintiff to conform to, and pay the annual rent for ninety-nine years.

The decree is inconsistent on its face, since it confirms the leases, and it finds matter for an equitable estoppel against the defendants, as if they had no existence.

Under these circumstances, we are satisfied that the plaintiff ought to be considered as holding no rights over the lands of the defendants, but what he holds under, and according to, the leases, and as he refused to pay the rent when it was due, and demanded, and this refusal was continued after the time allowed for payment, the lessors and owners of the lands had a right to resume possession of their own, and had full right, themselves, or by the assistance of others, to remove the dam, which was a nuisance.

We do not see the propriety of making Sylvester Seymour, and Wooster B. Seymour, and Johnson, defendants, under any view of this case. Since the first two have done nothing to injure the plaintiffs, and have threatened nothing, there can be no decree, of course, against them. Nor has Johnson any connection with the controversy whatever, nor is he liable to any one, so far as we perceive; if he is, the remedy against him would be at law, for damages.

There is manifest error.

In this opinion, the other judges, Storrs and Hinman, concurred.

Decree reversed.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Potter vs. Mather and another.
    Personal property, situated upon land occupied by two persons in common, may be in the exclusive possession of one of them.
    A., who occupied a tenement adjoining that of B., and adjacent to both of which was a yard, occupied by them in common, claimed title to a wagon which C. attached as the property of B. On the trial of an action of trespass against C„ it appeared that, both at the time of said purchase, and of said attachment, the wagon was standing in said yard, though A. claimed that after the sale, he immediately took and thereafter retained possession of the wagon, until the attachment by C. The court refused to comply with a request of the defendant to charge the jury as matter of law, that there was no change of the possession of said wagon, and, that as against the defendants, the sale was fraudulent and void, but submitted to them, as a question of fact upon all the evidence, whether there had, or had not, been a change of possession. Held, that such course was correct.
    This was an action of trespass against Talcott Mather, and Seth L. Tinkham, for the taking of a wagon, claimed by the plaintiff, as his property.
    The cause was tried before the superior court, at Hartford, October term, 1856.
    On the trial, the plaintiff offered evidence to prove that he purchased of his son, Josiah Sanford Potter, the wagon in question, about the 20th day of Dec., 1851, and that it had, until about that time, been kept on the west side of Connecticut river, at a stable occupied by said Sanford, but during the negotiation for its sale to the plaintiff, had been brought over to the other side of the river, and placed in the yard of a house, which contained two distinct tenements; one of which was occupied by the plaintiff and his family, and the other was occupied by the plaintiffs said son, and his family. It was agreed that the house and yard belonged to the plaintiff’s said son, that the garden was divided between them, and each occupied his part in severalty, but the yard was occupied in common, so far as the plaintiff had occasion to use the yard, in connection with said tenement. The plaintiff claimed, that upon the completion of said sale, he took possession of said wagon, and offered evidence to prove that he used the same as his own, and that said - Sanford was not suffered to retain possession of, or use, said wagon in any manner, and that said Sanford did not, in fact, after the sale, exercise any act of ownership over the same, and that, when not in actual use by the plaintiff, it was left near said house, in the yard occupied by the plaintiff, and his said son in common, as aforesaid.
    Upon cross examination, the plaintiff could specify only one occasion, on which the wagon had been used by him ; and that was the day after the sale. It was also admitted that the wagon, at the time of the sale, and also at the time of the attachment by the defendant, on the 10th of January, 1852, was in said yard, occupied by the parties in common, as aforesaid. The plaintiff also offered evidence to prove that, shortly before the attachment, the said Mather, in answer to enquiries made by him, was informed, by the plaintiff, that he had purchased the wagon of his son, and claimed it as his property, and that the wagon was received by the plaintiff for a debt, due by his son to him; to which the said Mather replied, that he guessed the plaintiff had got pay for his debt, otherwise. It was admitted, that the wagon was attached by the defendant, Tinkham, upon a writ duly issued in favor of the defendant, Mather, and that for such taking, this action was brought.
    Upon the foregoing facts, the counsel for the defendants requested the court to charge the jury, that if the wagon, at the time of the attachment, was upon property in the joint possession of the plaintiff and his said son, and in the same place where it was when the sale was made, and during the intermediate time had been left there, except when in actual use by the plaintiff, then there was no change of possession, and the sale was, in point of law, fraudulent and void, as against the defendants, who were attaching creditors, and also that upon all the facts, as admitted and claimed to be proved by the plaintiff, there was, in point of law, no change of possession.
    The court did not so charge the jury, but instructed them that the sale to the plaintiff was not valid, unless accompanied with change of possession, and that the want of such change was, in law, conclusive evidence of fraud, but whether such change had taken place, or not, was a question of fact for the jury to decide, upon all the evidence in the case. The jury returned a verdict for the plaintiff, and the defendants filed a motion for a new trial, and the case was reserved for the advice of this court.

      Welles 8f Strong, in support of the motion.
    1. The motion shows that there was no change of possession whatever; certainly none which was obvious and apparent. The wagon, on the day of the sale, stood on land belonging to the vendor, the son of the plaintiff, over which the plaintiff had a mere right of passage. It stood in the same place, when taken on the attachment by the officer, the right of the son to the land remaining as at the time of the sale. 2. The possession of the vendor must be exclusive ; here, it was a joint possession. The vendor was apparently as much the owner as before the sale. The sale must be followed by a visible, open, substantial change of possession, to hold against attaching creditors. 5 Verm., 54. 5 Verm., 234. 16 Verm., 435. 17 Verm., 271. 3. The facts, being given, it was a question of law, and the court should have charged the jury as requested.

      Chapman and Robinson, contra.
    I. The doctrine has been long established, in this state, that the want of change of possession, as between vendor and vendee, is not fraud per se, but is, unless satisfactorily explained, conclusive evidence of fraud; as the court below laid down this proposition, omitting the qualifying clause, the charge was favorable to the defendants. Ingraham v. Wheeler, 6 Conn. R., 277. Talcott v. Wilcox, 9 Conn. R., 134. Toby v. Reed, 9 Conn. R., 216. Carter v. Watkins, 14 Conn. R., 240. Osborne v. Tuller, 14 Conn. R., 529. Crouch v. Carrier, 16 Conn. R., 505. Kirtland v. Snow, 20 Conn. R., 27.
    II. The question of a change of possession was a mere question of fact, and the court properly refused to dictate to the jury what their conclusion ought to be. Potter v. Payne, 21 Conn. R., 362. Kendall v. Fitts, 2 Foster, (N. H.) 1.
    III. If the court had taken jurisdiction of the question of fact, the judge would have been bound to find that the plaintiff furnished abundant evidence of a change of possession.
   Hinman, J.

The plaintiff claims title to the wagon, for taking which this suit is brought, under a purchase from Ms son, and the defendants claim it under an attachment against the son, made subsequent to the purchase. The plaintiff and his son occupied, in severalty, adjoining tenements, but there was a yard in connection with the tenements, occupied by them in common, so far as they had occasion to use it. The wagon, at the time of the purchase, and also at the time it was attached, was standing in this yard, though the plaintiff claimed to have taken immediate possession of it after the sale, and to have used it, and to have remained in the exclusive possession, up to the time of the attachment. The defendants claimed, as matter of law, that there was no change of possession after the sale, upon the facts admitted and claimed by the plaintiff, and requested the court to charge the jury, that if, at the time of the attachment, the wagon was upon property in the joint possession of the plaintiff and his son, and in the same place where it was when the sale was made, and during the intermediate time, had been left there, except when in actual use by the plaintiff, there was no change of possession, and the sale was, in point of law, fraudulent and void, as against the defendants, who were attaching creditors. The court submitted to the jury, as a question of fact, upon all the evidence, whether there had been a change of possession. We do not see what other course could have been adopted. It appears to us that a man may have the exclusive possession of personal property, which is upon land, occupied by him and another in common, and if so, then it seems to follow that, whether he has such exclusive possession, must ordinarily be a question of fact for the jury, under all the circumstances.

We do not therefore advise a new trial.

In this opinion the other judges, Storrs and Ellsworth, concurred.

New trial not to be granted.


author: Ellsworth, J.

text:
    Davis and another vs. Benton.
    Where A.fgives to his creditor, for a part of his indebtedness, his note, payable to the defendant, or his order, and the defendant endorses it to the plaintiff, and the maker of the note, when it is given, places in the endorser’s hands, property to be by him disposed of, and applied to the payment of the note, and said property is sold by him, and the proceeds thereof received by the endorser, the plaintiff is entitled to recover the amount of said proceeds of said endorser, not exceeding the amount of the note, under the common counts for money had and received; although such note was given to induce the plaintiff to sign a composition deed with the other creditors of A., extending the time of the payment of his debts, said deed having failed to be perfected and to take effect.
    This was an action brought by Davis and Aubin, against-Nelson K. Benton. The declaration embraced a count upon a promissory note, executed by Bezaleel Sexton, and endorsed by the defendant, and also the common money counts.
    The defendant pleaded the general issue, and the cause was tried at the term of the superior court holden at Hartford, in December, 1855.
    On the trial, it was admitted that the note, in the plaintiffs’ declaration mentioned, was duly executed by Sexton, and endorsed by the defendant, and at its maturity was duly protested for non-payment, of which the defendant had due notice. It was also proved that, before the making of said note, on the 9th day of June, 1851, Sexton failed in business, largely indebted to sundry persons and firms; and on the 17th day of July, 1851, a large number of his creditors met and agreed upon terms of compromise, which were embodied in a deed of composition of that date.
    The plaintiffs offered evidence to prove, that before Sexton’s failure, they had sold to him a large quantity of wool, on credit, and had received therefor a bill of exchange, drawn by Phelps, in favor of one Holkins, upon, and accepted by, Sexton, for about the sum of $4,745, and endorsed by said Holkins to the plaintiffs; that the plaintiffs had endorsed, and procured said bill to be discounted for their accommodation, by a bank in Boston; that said bill, at the time ’ of said failure, was not due, but that the plaintiffs, hearing of said failure, took up and held said bill until its maturity, and placed it in the hands of one Scoville, for collection.
    The defendants offered evidence to prove that, before the expiration of the time in said deed limited for the execution thereof, Sexton applied to Scoville, and requested him to sign it, which he refused to do, but proposed that he would sign it, and give up said bill, in consideration of the note in suit; and that, in order to obtain Scoville’s signature, and thereby to enable him to procure the execution of the deed by his other creditors, Sexton assented to said proposition, and that said note was made, and by the defendant, for said Sexton’s accommodation, endorsed, and delivered to Scoville; and that, in consideration thereof, Scoville executed said deed, and gave up said bill, that this was intended to be, and was, a secret arrangement, made for the purpose of enabling Sexton to procure the execution of said deed by some of his other creditors, and was known and understood by Scoville so to be; and that after the execution of said deed by Scoville, and within the time limited in said deed for its execution, other creditors of Sexton executed the same; although it was admitted that said deed finally failed to take effect, by reason of the failure of Sexton to comply with some of the conditions contained therein.
    The defendant also claimed that said note, after its delivery, was assigned, and delivered by Scoville to the plaintiffs, and that the plaintiffs, before and at the time of such assignment and transfer, were fully informed of the arrangement between Scoville and Sexton.
    The plaintiffs offered evidence to prove, that no such arrangement, either open or secret, was ever made, but that the note was given for the agreed price of said bill, and for no other consideration whatever, and without any agreement, or expectation, that Scoville should at any time execute said deed; but that, after delivery of the note to Scoville, the attorney of Sexton requested Scoville to execute said deed, and represented to him that he could then execute it without impropriety, and without doing any wrong or injury to himself or others, while it might be of some service to Sexton to be able to show the name of Scoville affixed to said deed; and that Scoville, relying upon these representations, signed said deed as an act of kindness to Sexton, but without any consideration whatever therefor, and that the execution of the deed was entirely independent of the sale of the bill, and the giving of the note, and had no connection therewith.
    The plaintiffs further offered evidence to prove, that if Scoville had executed the deed in consideration of said note, as the defendant claimed; that he had so executed it without their knowledge or consent, and that they had received said note from Scoville as their agent, and not as his assignee; and that at the time they received it, they were informed by him, and believed, that it was given and endorsed in consideration of a bona fide sale of said bill, and upon no other consideration; and that they had not, at any time, any notice whatever, that it was given upon any other consideration, and that until long afterward, they had no knowledge of the execution of said deed by Scoville.
    The plaintiffs offered evidence to prove, that after the making of the note and before the commencement of the present suit, in order to provide for the payment of the note, Sexton had placed in the defendant’s hands, a large amount of property to sell, the proceeds thereof to be applied to the payment of the note, and that the defendant sold said property and received the money therefor, and held it for that purpose; and they requested the court to charge the jury, that, if they should find as the plaintiffs claimed, then they ought to find for the plaintiffs, on the count for money had and received, to recover the money so held by the defendant, not exceeding the amount of the note, although they might also find that the note was originally given and endorsed, in the manner, upon the agreement, and for the consideration, claimed by the defendant; and although they should find that the plaintiffs had full notice thereof, at the time they received the note from Scoville.
    The defendant denied that any money, property, or funds, had ever been placed in his hands by Sexton, for the payment of the note, or that he ever held any property or money for that purpose, and he requested the court to charge the jury, that, if they should find that said note was made, endorsed, and delivered in the manner claimed by him, the transaction was a fraud upon the other creditors and upon Sexton, and that therefore the plaintiffs were not entitled to recover on the count for money had and received, even though they should find that Sexton had placed said property in the

      defendant’s hands, to be sold for the payment of said note, and that the defendant received the same for that purpose, and had sold said property and received the money therefor, and held the same, at the time of the commencement of the suit, as claimed by the plaintiffs.
    The court charged the jury, upon this point, in conformity to the claim of the plaintiffs; and the jury having returned a verdict for the plaintiffs, the defendant moved for a new trial.

      Hungerford Sf Gone and Wright, in support of the motion.
    I. If the note in suit, as the defendant claims, was made by Sexton and endorsed by the defendant, as an additional benefit, and further security for the payment of Scoville’s debt than that provided for the other creditors in the deed of composition, it was void in its inception, both as against Sexton and the defendant, as a fraud on the other creditors, and a moral duress upon Sexton and his friends. Leicester et al. v. Rose, 4 East., 372. Steinman v. Magnus, 11 East., 390. Case v. Gerrish, 15 Pick., 50.
    II. If Sexton had actually paid this money to the plaintiffs to induce them to sign the composition deed; or if he had been compelled to pay this note by a bona fide holder, he might, in either case, recover it as money paid by compulsion. If the plaintiffs can recover in this case, Sexton may have his action to recover it back. Smith v. Cuff, 6 M. & S., 160. Towney v Bourdieu, 2 Doug., 472. Smith v. Bromley, 2 Doug., 697. Horton v. Riley, 11 M. & W., 492. Bradshaw v. Bradshaw, 9 M. & W., 29. If the note, as claimed by the defendant, is fraudulent and void in its inception, everything connected with it is illegal, and the court will no more aid the plaintiffs to recover on the common counts, than on the note itself. Langton el al. v. Hughes et al., 1 M. & S. 593. Philadelphia Loam Co., v. Towner, 13 Conn. R., 249. Phalen v. Clark, 19 Conn. R., 421. If a recovery can be had, it is only by virtue of an implied promise by the defendant to pay; and the only consideration of the implied promise is the void note. The note is distinctly recognized as the consideration of the implied assumpsit, and the plaintiffs’ claim upon Benton, is traced through the fraudulent and void note. Money, deposited to secure a wager on the event of an election, cannot be recovered by the winner. Wheeler v. Spencer, 15 Conn. R., 28. Hastelow v. Jackson, 8 B. & Cres., 221. Nor money deposited as a bribe to influence a judge in his official character.

      Ghapmcm Sf Drake, and Fellowes, against the motion.
   Ellsworth, J.

We are not able to discover any error in the ruling of the judge below.

The motion shows, that, at the time of the failure of Bezaleel Sexton, on the 9th day of June, 1851, he was indebted to the plaintiffs, to the amount of the note in question, for wool before that time sold. At the time of the sale, he gave them a bill of exchange, which is dishonored and remains unpaid. Sexton, having numerous creditors, they undertook to compromise their respective debts, and according to the defendant’s claim, one Scoville, who had the dishonored bill in his hands, in some capacity or other, was, it is said, present and active in bringing about the compromise, as the representative of the plaintiffs’ debt. It does not appear that Sexton was able to fulfil the compromise on his part, or that it ever took effect, as to any of the creditors. However, before the deed, designed as the instrument of compromise, was executed by Scoville, it is said he refused to sign it, until Sexton, by a secret promise, gave him an advantage over the other creditors, securing to him an earlier payment of the seventy-five cents on the dollar, which the creditors had agreed to take, than to the others. The note is said to have been given to carry out this preference, or favoritism, with the full knowledge and concurrence of the plaintiffs. This is claimed to render the note fraudulent and void, as unfair and unequal.

We have no occasion to decide what is the precise principle of law, contended for by the defendant, nor whether any principle of the kind could benefit the defendant, because we are of the opinion that the defendant, under the circumstances, may not avail himself of such a defence. The maker of the note had a right to have it paid, if it was his pleasure, even if he could have repudiated it. Sexton had never paid the plaintiffs for the wool they sold him. He owed the protested bill of exchange on the note given Scoville, and in order to take it up, having placed funds in the hands of the defendant to pay it, it would be strange indeed if the defendant could refuse to apply them as directed. Whether the defendant is not estopped from making such a defence to the note, we need not say, for he is liable on the common counts, for money had and received.

We do not advise a new trial.

In this opinion, the other judges, Storrs and Hinman, concurred.

New trial not to be granted.


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    Chadsey vs. Greene.
    A vendor, who refers a purchaser to a third person for information, in regard to the property to be sold, is bound by the declarations of the person referred to, in the same manner as if he had made them himself.
    On the trial of an action on a false warranty, and for a fraud in the sale of a horse, it appeared that the plaintiff, who had declined to purchase such horse, because he was ignorant of the defendant’s character and responsibility, was referred, by the plaintiff, to N. for information. Held, that such declarations of ET., as were designed to induce the plaintiff to confide in the defendant, were admissible, although made when the defendant was not present.
    The reason for the rule, that a general warranty does not extend to visible defects, ceases when the vendor uses art to conceal, and succeedsin concealing, such defects from the purchaser.
    Where, on the trial of an action on the case, for a false warranty, and for a fraud in the sale of a horse, it was proved that the plaintiff, on one occasion, observed a lameness in the horse which the defendant remarked was slight and temporary, and caused by weariness and exposure to the cold, and the court instructed the jury, that the plaintiff was not precluded from recovering, unless such limping indicated that the horse was unsound, and not merely laboring under a temporary infirmity; it was held, that such instruction, taken in connection with the circumstances of the case, was correct.
    The defendant, in his plea to the count on a general warranty of soundness, having alleged that the horse was not otherwise unsound except that he was lame, and his lameness was obvious to the sight, and the plaintiff saw and knew it, the replication traversed said plea, and further alleged the horse to be otherwise unsound, and, on the trial, the defendant requested the court to instruct the jury, that if they were satisfied that the facts, therein set up, were true, it would be their duty to find, on that issue, for the defendant, although he gave said warranty, which reque'st was refused. Held, that the defendant could prove nothing under said plea, which he could not prove under the general issue, and that the charge, which was given, being .applicable to both issues, was correct.
    This was an action on the case, brought by Euclid Chadsey against Joel T. Greene., The declaration contained two counts; one for a breach of warranty, and the other for a fraud in the sale of a horse.
    The defendant pleaded first, the general issue. Secondly, that the contract of warranty, referred to in the first count of the plaintiffs declaration, was as follows, viz: “ Euclid Chadsey bought of Joel T. Greene, one bay horse, seven years old, warranted sound, blanket and halter included, $320. Received payment in full, Joel T. Greene, Hartford, July 6,1853,” and was not other, or different. And that said horse, at the time of such sale and warranty, was not otherwise unsound, except that he was lame; and that the said lameness of said horse, being the unsoundness mentioned and complained of in said count, was, at the time of said sale of said horse to the plaintiff, and the execution of said warranty to the plaintiff, plain, open and obvious to the sight; and that the plaintiff saw and well knew that said horse was lame, and that he examined said horse and travelled with him, and had full notice that said horse was lame, before and at the time of such sale and warranty ; and so the plaintiff was not deceived and defrauded by means of said warranty.”
    Issue was joined upon the first of said pleas. To the second, the defendant pleaded that “ said horse, at the time of said sale and warranty, was not only lame, but otherwise unsound, and that said lameness was not, at the time of said sale and the execution of said contract of warranty, plain, open and obvious to the sight; and that the plaintiff did not, before or at the time of said sale or warranty, know that said horse was lame or unsound.”
    On the trial of the cause to the jury, it was admitted that the plaintiff bought the horse, halter and blanket, described in his declaration, on the 6th day of July, A. D. 1853, at and for the price of $320; and that the defendant, at the time of said purchase, executed and delivered to the plaintiff the following written bill of sale and warranty, viz :
    “ Euclid Chadsey, Bo’t. of Joel T. Greene, one bay horse, seven years old and warranted sound, blanket and halter included, ..... $320

      The above horse I purchased, yesterday, in New York city, of Charles De Wolf, for $300.
    Rec’d payment in full,
    Joel T. Greene.
    Hartford, July 6th, 1853.”
    The plaintiff offered evidence to prove that, atthetime ofthe purchase, said horse was, and for a long time before had been, incurably unsound, by reason of a permanent lameness in his fore shoulders. It was admitted that the plaintiff and the defendant, up to the time when the negotiation for said purchase commenced, were strangers to each other; that they met, for the first time, on the steamer “ City of Hartford,” then on her passage from New York to Hartford, on the evening of the 5th of July, 1853, when such negotiation commenced, (said horse then being on board said steamer,) and was continued up to the time of the final conclusion of said purchase and sale.
    The plaintiff offered evidence to prove and claimed, that, in order to induce the plaintiff to purchase said horse, the defendant, on the evening of the 5th of July, stated and represented to the plaintiff, that he had been to New York for the express purpose of buying a fine horse for his own use, and for his wife to drive, and for that express purpose had that day bought the horse in question of one Charles De Wolf, and paid $300 for him; that he had given the horse a thorough trial, had driven him nearly all day on the pavements in New York before he bought him, and was satisfied that the horse was sound, fast, and safe for any person to use, that he was just such a horse as he wanted to keep, and he could not be induced to sell him.
    And the plaintiff further claimed and offered evidence to prove, that afterward, during the same evening, the defendant applied to the plaintiff, referred to their former conversation, and informed the plaintiff that he had concluded that he would sell the horse, with his halter and blanket, for $325; that he intended to leave the steamer at Rocky Hill, and let the horse go on to Hartford, and if he did not sell the horse, should send his servant up to Hartford for him the next morning; that if the plaintiff would buy the property, it should be delivered to him, at Hartford, without any expense for its transportation on said steamer, and that, in order to save the trouble of sending to Hartford for the horse, he was desirous to close the bargain, if they made one, before their arrival at Rocky Hill; and that the defendant then repeated, in substance, all that he had before said to the plaintiff regarding said horse, assured the plaintiff that his recommendation might be depended upon, and that he was willing to give to the plaintiff a satisfactory warranty of said horse; to which the plaintiff replied, that he would not buy the horse upon such recommendation, nor even with such a warranty, because the defendant was a stranger, and the plaintiff had no information regarding his character, standing, or responsibility; that the defendant then introduced to the plaintiff one Neff, as a neighbor of the defendant, and referred the plaintiff to Neff, for information regarding the defendant, and his character and responsibility; and that thereupon said Neff informed the plaintiff, that the defendant was a farmer, residing at Rocky Hill, a man of wealth, a large owner of stock in the company on whose steamer they were passengers, and therefore travelled on said steamer free of expense, that he was not a horse dealer, was a highly respectable man, that his representations regarding said horse or any thing else might be relied upon, that his word was as good as his note, and his note as good as any man’s; that the defendant had been to New York to buy a nice horse or two, had bought only that one, and he did not suppose he would sell that, as he supposed he had bought him for his own use.
    It being admitted that the aforesaid declarations of Neff to the plaintiff, were not made in the presence, or hearing, of the defendant, the defendant objected to the evidence of such declarations, on the ground that the pecuniary ability of the defendant- was not in issue, and that said declarations, if made, were made in the defendant’s absence and not in his hearing; but the court overruled said objection and admitted the evidence.
    The plaintiff claimed, and offered evidence to prove, that, at the time of said purchase, he was very little acquainted with horses, having had but little to do with them, and was quite unskilled in all that related to their soundness or unsoundness, and in everything relating to the discovery of their maladies or defects ; that he had no knowledge of any unsoundness in said horse, and neither discovered nor was informed, nor knew of any sign or indication of any unsoundness, malady, or defect in said horse, except that in a single instance, just before the conclusion of said bargain, while the plaintiff and the defendant were riding together in a wagon drawn by said horse, he observed that said horse, when he turned a corner, seemed to falter or limp on one foot; but that the plaintiff, although he afterward, and before the conclusion of said bargain, drove said horse and saw him driven by other persons, yet did not see or have any information of a recurrence of that, or any other indication of unsoundness whatever; and with respect to that indication, or limp, which the plaintiff noticed, that he mentioned it to the defendant at the time he noticed it; that the defendant admitted that he also observed it, but told the plaintiff that he did not wonder at or care for it, that it was a mere slight and temporary stiffness, occasioned by weariness, hard usage, and exposure to the cold, on the steamer, the night before, and that the horse had come from the west, about five hundred miles, to Albany, in the railroad cars, and thence to New York on a steamboat, without stopping at Albany, and without having any opportunity to lie down on the journey; that he had arrived in New York in the morning of the 5th of July, had been taken from the boat and driven hard on the pavements in New York all day, until put on board the steamer to come to Hartford, about four o’clock in the afternoon; that when he was put on board the steamer he was in a profuse perspiration, and had probably taken a slight cold, but that he was perfectly sound, and only needed a little rest and care.
    And the plaintiff claimed, and offered evidence to prove, that, by the aforesaid statements and suggestions of the defendant, regarding the aforesaid indication of unsoundness, and the character and cause of it, and of the treatment which said horse had received, his apprehensions regarding said horse’s unsoundness were entirely dispelled, and he concluded to buy and did buy said horse, verily believing him to be entirely sound.
    The plaintiff offered no direct and positive evidence that the defendant, at the time of said negotiation or said sale, knew that said horse was unsound; but he offered evidence to prove, and claimed that some of said statements, especially as to the price paid by the defendant for said horse > as to the driving of said horse in New York on the 5th of July, and as to his condition when put on board the steamer for Hartford, were untrue in fact, and were known to be so by the defendant; and the plaintiff claimed, that, from all the facts and circumstances proved upon the trial, regarding said negotiation and said statements and suggestions of the defendant, the jury were authorized to infer, and ought to infer and find, that atthe time of the negotiation of said sale, the defendant knew said horse to be unsound, and made said statements and suggestions, with a fraudulent intentto induce the plaintiff to buy said horse, and to defraud the plaintiff thereby ; and that the plaintiff was thereby deceived and defrauded in said purchase.
    The defendant claimed, and offered evidence to prove, that all the statements and suggestions made by him to the plaintiff, regarding said horse, were substantially true; that he bought said horse for a sound horse, and sold and warranted him sound, believing him to be so, and having no knowledge that he was not; and that said horse was, at the time of said sale, sound, in fact; and that, as to his lameness, the plaintiff had just as much knowledge and information as the defendant, and that whatever it was, the plaintiff was well informed, and knew of it, at the time of said purchase.
    The defendant also claimed, that if said horse was unsound at the time of the sale, by reason of such lameness, it was, in fact, known to the plaintiff, and was so obvious and visible as not to be covered by a general warranty of soundness.
    And that whatever he had said to the plaintiff, regarding the cause, character, or continuance of the horse’s lameness, was the mere expression of an opinion, honestly entertained by the defendant, and was so understood by the plaintiff, at the time.
    The plaintiff offered evidence to prove, that the unsoundness of said horse was not a slight or temporary defect, occasioned in the manner stated by the defendant, but was an organic and incurable difficulty, or malady, of longstanding; that it was not, at the time of said sale and warranty, visible to, or discoverable by, a common, unskilled person, but wras discoverable only by skilful judges of horses and their condition.
    The defendant requested the court to charge the jury that, under the issue joined upon his - second plea, if the jury should find that the facts set up in that plea were proved and true, it would be their duty to render a verdict on that issue for the defendant, although the defendant gave the warranty set up in that plea. And further claimed, that, under the first count in the declaration, the gist of the action was the deceit of the defendant upon the plaintiff, by means of a false warranty; that the action was for a deceit, and that if, in fact, the plaintiff saw, or was informed of, the horse’s lameness, and discussed with the defendant its cause and probable continuance, then -he was not deceived by the warranty, and could not recover under the first count.

      That the mere expression, by the defendant, of an opinion that the lameness observed was a temporary and not a permanent lameness, would not render the defendant liable, under either count, unless the jury should find that the defendant knew that the fact was otherwise, and that said horse was permanently unsound.
    And that the general warranty given by the defendant in this case, could afford the plaintiff no remedy for any defect or disease in the horse which was visible, or of which the plaintiff knew, or had reasonable notice.
    The court charged the jury, that in order to justify them in giving a verdict in favor of the plaintiff, they must find the express warranty set up in the first count of the declaration, or that the defendant, at the time of the sale, falsely and fraudulently represented said horse to be sound, and sold him as sound to the plaintiff, knowing him to be unsound, as charged in the second count, and that the horse was in fact unsound, and that the plaintiff did not know it, and was defrauded and deceived by such representations.
    That a mere temporary injury, occasioned by an accident, is not unsoundness J but that if the horse, at the time of the sale, had any disease which diminished his natural powers for usefulness or convenience, or if he had, from disease or accident, undergone any alteration of structure, which, at the time of the sale, did, or which in its natural and ordinary effect, would diminish his natural powers for use or convenience, then he was unsound.
    That the general warranty of soundness did not extend to defects plainly discoverable by the eye and obvious to the senses ; but that if the horse, at the time of the sale, was unsound, within the definition already given, the plaintiff was entitled to a verdict, unless he knew of such unsoundness at the time of his purchase, or unless that unsoundness was so plain and obvious to the senses as to require no experience or skill for its discovery or detection; that it was no answer to the plaintiff’s claim, to show that he was informed of a mere temporary injury, for that was not unsoundness. Nor was it an answer to the plaintiff’s claim, to show that he had seen and noticed the limping or faltering before mentioned, unless such limp or faltering indicated plainly and unequivocally, that the horse was unsound, and not merely laboring under a temporary injury; and that, the general warranty being admitted, if the jury should find that the horse was, at the time of the sale, unsound, and that the unsoundness was not so plain and obvious as to be detected by the eye of a common, unskilled observer, and was not detected by the plaintiff, and he had not, in fact, notice of its existence, as an unsoundness, then the plaintiff was entitled to a verdict, on the first count, for the difference between the value of the horse as he was, in fact, and what he would have been worth, had he been sound; but if the horse was sound, or if his unsoundness was plain and obvious to the senses, or if the plaintiff, in fact, knew, or was informed of it, as an unsoundness, at the time of the sale, he was not entitled to a verdict on that count; and that if the jury should find that at the time of the sale, the horse was unsound, that the defendant knew him to be so, and yet represented him to the plaintiff’ to be sound, and as such, sold him to the plaintiff, and that the plaintiff was ignorant of such unsoundness, then the plaintiff was entitled to a verdict on the second count, for the damages actually sustained by him in consequence of such fraud and deception, as shown by the proof produced upon the trial; but that if the horse was sound, or if he was unsound, but the defendant did not know it, or the plaintiff did, then there was no fraud in the transaction, and the defendant was not liable on the second count.
    The jury returned a general verdict for the plaintiff, and the defendant moved for a new trial.

      Welles and Chapman, in support of the motion.
    I. The declarations of Neff, which were objected to by the defendant, were improperly admitted.

      II. The court omitted to charge the jury, upon the special issue, as was claimed by the defendant; that the first count is founded upon a false warranty, and sounds in tort, and the plaintiff must have been deceived by the warranty. 20 Conn. R., 277. 22 Conn. R., 19.
    III. The court did not charge the jury, as requested by the defendant that if the plaintiff was informed of the lameness of the said horse, and discussed with the defendant its cause, and probable continuance, he could not recover on the first count. 7 Bing., 603. 2 Steph. N. P., 1289-90. 1 Sw. Dig., 382-3. The lameness was a visible, palpable unsoundness. 2 Stev. N. P., 1294.

      1hmgerford 8f Gone, and Hubbard, against the motion.
    I. The testimony, admitted by the court, notwithstanding the objection of the defendant, was admissible. 1 Green. Ev., § 182.
    II. To recover under the first count of the plaintiff’s declaration, it was not necessary to prove that the defendant had knowledge of the unsoundness of the horse, at the time of the sale. Williamson v. Allison, 2 East., 446. Holman v. Dord, 12 Barb., 336. Bartholomew v. Bushnell, 20 Conn. R., 272.
   Hinman, J.

The action was for a false warranty, with a count for fraud, in the sale of a horse. It was therefore competent for the plaintiff to introduce any evidence, calculated to sustain either claim. The defendant, having made strong representations in regard to the’good qualities of the horse, that he had been to New York for the purpose of buying him for his private use, and, after a thorough trial, was satisfied that he was sound and safe for any purpose, and just such a horse as he wanted to keep, that he had bought him for three hundred dollars, to induce the plaintiff to purchase him, assured him that his representations might be relied on, and that he was willing to give a satisfactory warranty. The defendant replied that the plaintiff was a stranger, of whose character, standing, or responsibility, he had no knowledge, and he would not therefore purchase him. To obviate this objection the defendant introduced one Neff- to the plaintiff, and referred to him for information regarding the defendant’s character and responsibility; whereupon Neff made the representations that are objected to. Now, by the rules of law, it is clear, that the representations of Neff, under the circumstances, bind the defendant in the same manner, that he would have been bound by them had he made them himself. 1 Green. Ev., § 182.

The defendant’s counsel admit this. Hence, the only question here is, whether Neff’s representations were any of them of a character to deceive the plaintiff; for they are claimed only under the count for fraud.

In order to accomplish a fraud, such as is claimed in this case, it was important that the plaintiff should have confidence in the fairness and integrity of the party, with whom he was dealing. And it appears to us that the representations of Neff were well calculated to give the plaintiff this false confidence in the defendant. The horse had some symptoms of being lame, and in fact was lame, and circumstances went to show that the defendant artfully concealed this from the plaintiff; to accomplish this, the defendant represented that such faltering, as appeared in the horse, was only a temporary stiffness, caused by the horse taking cold; and to impress the plaintiff with confidence in these and other representations, Neff appears to have been used ; and he certainly did give the defendant a very high character, as a wealthy farmer of great respectability, who was unaccustomed to deal in horses, and whose representations might be implicitly relied on. Now, as a part of the means employed to impose on the plaintiff, we think this evidence was admissible. It was part of the transaction, by which the plaintiff was induced to repose confidence in the defendant. And it is no answer to say that some of the declarations of Neff are immaterial. Such as are now claimed to be so, were not objected to, on that ground, at the trial. But the objection was to the whole of his declarations, on the ground that the defendant was not present when they were made; and as we think that so much of his conversation, as went to inspire confidence in the defendant as a man of probity, is admissible, there was no error in the court in admitting it.

The charge, taken as a whole, we think was adapted to the case, and was not incorrect in any principle of law ; and it substantially answered all the calls of the defendant for a charge upon particular points in the case.

It is true, undoubtedly, that a general warranty does not extend to visible defects. But we see nothing in the charge, which conflicts with this principle. On the contrary, the jury were so told expressly. It appeared, however, that on one occasion, the plaintiff noticed the faltering of the horse, and on mentioning it to the defendant, he remarked that he noticed it also; but said it was a slight temporary stiffness, caused by weariness, and exposure to cold on the steamboat, and in the cars. Assuming, as we must on this point, that this was false, and, also, that the horse was known to the defendant to be permanently lame, we think the court was correct in saying to the jury, that seeing the horse limp, or falter, was not an answer to the plaintiff’s claim, unless such limping, or faltering, indicated plainly and unequivocally, that the horse was unsound, and not merely laboring under a temporary injury. The principle is as well stated in 1 Sw. Dig., 381, as any where. Plain and obvious defects are not covered by a general warranty. But if they are not discoverable by the eye ; if they require skill to discover’them, though apparently the object of the senses, the warrantor is responsible. A man may warrant against obvious defects; and the reason why a general warranty does not cover them, is because it is presumed they are not intended to be included in it, being known to the parties before the warranty is given. But where they are not so known to the purchaser, as where he is blind; or the vendor uses art to conceal them, and succeeds in concealing them from the purchaser, the reason of the rule ceases, and the warrantor ought to be responsible for them. Taking the charge, then, in connection with the circumstances of the case, considering the means used to conceal the permanent character of the lameness, and the fact that the distinction, between a permanent and temporary lameness, is not very apparent to an unskilful man, we think the court was justified in saying to the jury, that the faltering ought, plainly and unequivocally, to indicate a permanent unsoundness, in order to prevent the defendant’s liability upon the warranty.

It was made a point in the case, that the court did not respond to the claim of the defendant, that the jury should be specifically charged upon the special issue. In the defendant’s second plea, the warranty is set out, and it is alleged that the horse was not otherwise unsound, except that he was lame, and the lameness was plain, open, and obvious to the sight, and the plaintiff saw, and knew, that the horse was lame; this is traversed, and the horse is in the replication, alleged to be otherwise unsound. It is obvious that there is nothing in this plea, that it was not competent for the defendant to prove under the general issue, and we think the charge, which we have been considering, sufficiently applicable to this issue, whether it be considered under the special issue, or as involved in the general issue.

It answered every point in issue in the case; and it was unnecessary for the court to say to the jury, that if the defendant had satisfied them that the second plea was true, he was entitled to their verdict, because this was involved in that part of the charge which informed them, “ that the general warranty of soundness did not extend to defects, plainly discoverable by the eye, and obvious to the senses.”

Upon the whole case, therefore, we do not advise a new trial.

In this opinion, the other Judges, Storrs & Ellsworth, concurred.

New trial not granted.


text:
    Soule vs. The New York and New Haven Railroad Company.
    Under the eighty-third section of the act relating to civil actions, (Rev. Stat. tit. 1 c. 6, § 33,) an action may be brought by an administrator, for an injury to his intestate, which resulted in death.
    This was an action on the case, brought by Augustus Soule, administrator on the estate of James H. Gray, deceased, against the New York and New Haven railroad company.
    The part of the declaration material in the present case was as follows : “the defendants so carelessly, unskilfully, and negligently behaved, and conducted themselves in the premises, that while the train, with the said Gray therein, was passing and being propelled upon, over and along, the defendants’ said road, viz.: on the said 6th day of May, in the town of Norwalk, a part of said train, with the said Gray therein, was with great force and violence, precipitated and plunged into a certain stream there situated, called and known by the name of Norwalk river, and immersed and covered in, and by the waters thereof, and so with the said Gray therein, for a long time, viz.: two hours and more next thereafter, continued immersed and covered, by means of all which the said Gray was greatly wounded, bruised and injured, and suffered great pain and anguish both of body and mind, and then and there died and lost his life, to his great damage, viz.: to the amount of thirty thousand dollars, and no part of which the said defendants ever paid to the said Gray, in his life time, and that by reason of the matters aforesaid, and by virtue of the statute in such case made and provided, an action for the recovery thereof, hath survived to the plaintiff, as administrator as aforesaid, &c.”

    The defendants demurred generally to the declaration, and at the term of the superior court, holden in December, 1855, the questions arising thereon were reserved for the advice of this court.

      Baldwin and Chapman in support of the demurrer.

      Hmgerford Sf Cone, contra. .

       The 83d sec. of the 6th chapter of the statute relating to civil actions is as follows:
      <c Actions for injury to the person, whether the same do or do not result in death, actions for injury to the reputation, actions for injury to the property, real or personal, and actions to recover damages for injury to the person of the wife, child, or servant of any deceased person, shall survive to his executor or administrator; provided the cause of action shall not have arisen more than one year before the death of the deceased, and shall have arisen since the 27th day of June, 1848.”

   Ellsworth, J.

On the 6th of May, 1853, James H. Gray, of Springfield, took passage at New York, on board the defendants’ cars for New Haven. At Norwalk, in the course of the passage, by reason of the cars being precipitated through a draw bridge, owing to the negligence of the defendants’ agents, Mr. Gray lost his life, and to recover damages for this loss, the plaintiff, as administrator, brings his action, on the case. The demurrer to the declaration presents to us this preliminary question: can the plaintiff, as representative of Mr. Gray, maintain this action ? At common law, it is agreed that the action would not lie, and hence the plaintiff seeks to recover upon the statute of 1848, § 82, p. 78, which is in these words: “ Actions for injury to the person, whether the same do, or do not, result in death, actions for injury to the reputation, actions for injury to the property, real or personal, and actions to recover damages for injury to the person of the wife, child, or servant of any deceased person, shall survive to his executor or administrator, provided,” &c.

It is said that this statute does not reach the present case; for the statute speaks of actions surviving, and here is nothing but a cause of action to survive. This is too rigid a construction of this remedial statute, and we are confident the legislature intended, by this section, to declare that the death of the person injured should not prevent the bringing an action, by his legal representative, and not that an action already begun should be continued ; such a provision would be unnecessary, as the remedy had been already received by the preceding section, 82d p.

The next objection is as little doubtful as the first. There was an injury, suffered by Mr. Gray while in life, even allowing his personal sufferings and personal loss to be the ground and measure of recovery, as to which we make no decision; certainly his sufferings and the duration of them are appreciable, and though probably short, were intense beyond conception, and this is enough to maintain this action.

We advise that the demurrer be overruled.

In this opinion, the other Judges, Storrs and Hinman, concurred.

Declaration sufficient.


text:
    Case and another vs. Spaulding.
    The defendant, at the request of the plaintiffs, endorsed in blank a promissory-note, payable to the order of the latter, who afterwards endorsed it in blank over the name of the defendant, and procured its discount at bank. The maker failing to pay the note at its maturity, the plaintiffs paid it, erased their own endorsement, and brought an action against the defendant on his endorsement. Held, on the trial, that parol evidence was admissible to show that the defendant’s endorsement was intended as security for the bank only, and not as a guaranty of the note to the plaintiffs.
    This was an action of assumpsit, brought to the city court for the city of Hartford, against the defendant, as a party liable on two promissory notes.
    The declaration embraced the common counts and several special counts. In one of the latter counts the cause of action was stated thus: “Samuel C. Spaulding and Ariel Coy, partners in business under the firm of Spaulding & Co., in and by a certain writing or note under their hand, executed by them, by their said co-partnership name, within the limits of said city of Hartford, and since the incorporation thereof, promised the plaintiffs to pay to their order, two months after date, at the Farmers and Mechanics bank, for value received, the sum of two hundred dollars, and that the defendant, on the day and year aforesaid, at and within said city of Hartford, and previous to the delivery of said note to the plaintiffs, endorsed said note, for a valuable consideration, and said note was afterward, on the day and year aforesaid, at and within said city of Hartford, delivered to the plaintiffs. And the plaintiffs aver that, previous to said note becoming due, the said Spaulding & Co. became insolvent, and made an assignment of all their estate for the benefit of their creditors, according to the statute laws of this state, and that when said note became due, the same was presented to said bank for payment, and payment of the same was then and there demanded of the said Spaulding & Co. and of the defendant, and that payment of the same was then and there refused, of which the defendant afterward, viz. on the 1st day of May, A. D. 1855, that being the day upon which the same became due, had notice, and that the said Spaulding & Co. were then largely insolvent, and were wholly unable to pay said note according to its tenor, and that the same could not have been collected of them by the use of due diligence, and that the defendant thereby became liable,” &c.
    On the trial, upon the general issue closed to the court, the plaintiffs offered in evidence the two notes described in the plaintiffs’ declaration, which were payable to the order of the plaintiffs, and by the plaintiffs endorsed in blank. But their endorsement, at the time of the trial, had been erased, and underneath the plaintiffs’ endorsement, they were endorsed by the defendant in blank. It was admitted that said notes were brought to the plaintiffs, (or left for them, at the Farmers and Mechanics bank, at which they were payable,) by the makers, S. C. Spaulding & Co., after being executed by them, and endorsed by the defendant, and it was claimed by the plaintiffs, that, after said notes had been left to be discounted by said bank, and before the same were discounted, Chauncey Case, one of the plaintiffs, called at the bank and endorsed said notes in the name of the plaintiffs, above the name of the defendant.
    It was also admitted that, on the 27th of November, 1854, the plaintiffs called on S. C. Spaulding, one of the firm of Spaulding & Co., for the payment of $400, upon an account of about $800, then due to the plaintiffs from Spaulding & Co., and that Spaulding & Co. gave the plaintiffs a note for the payment of $400, at the Farmers and Mechanics bank, in four months, executed by Spaulding & Co., and payable to the order of the plaintiffs, which note the plaintiffs endorsed and presented at the Farmers and Mechanics bank for discount, but said bank declined to discount the same, without another endorser thereon, and thereupon the plaintiffs called upon S. C. Spaulding with said note, and informed him that said bank would not discount said note without another name upon it, and that thereupon said Spaulding remarked that perhaps his brother, the defendant, would endorse the note, upon which the plaintiffs delivered him said note, and requested him to apply to his brother to endorse the same. The defendant, at the request of said S. C. Spaulding, endorsed said note, under the endorsement of the plaintiffs, and the note, thus endorsed, was delivered by S. C. Spaulding to the plaintiffs, who immediately procured the same to be discounted at said bank. Afterward, when said note was about falling due, Spaulding & Co. applied to the plaintiffs to have the same renewed, and it was agreed that the two notes described in the declaration should be made for the purpose of renewal, which notes were drawn by S. C. Spaulding and carried to the defendant, at the request of the plaintiffs, to be endorsed, and were by him endorsed, and by S. C. Spaulding left at the bank for, or delivered to, the plaintiffs as before mentioned, and it was also admitted, that after said notes were in said bank, and were approved for discount, Case enquired of the teller of said bank where he should put his name, and was told by him that, to secure their endorser, the note being payable to them, they must endorse it over the name of H. C. Spaulding.
    The defendant offered evidence to prove that, at the time when he endorsed said first note, he said to S. C. Spaulding that he endorsed the same for the purpose of securing the bank, and not to make himself liable in any manner to the plaintiffs, to which S. C. Spaulding replied that that would be the whole effect of the endorsement, and that S.. C. Spaulding, at the time he requested the defendant to make said endorsement, stated to him that said note had been offered for discount at the bank, by the plaintiffs, and that the bank declined to discount it without another name. The defendant also offered evidence to prove that, at the time when he endorsed said renewal notes, S. C. Spaulding informed him that said notes were wanted for the purpose of renewal, and that he had agreed with the plaintiffs, on such renewal, and that he endorsed the notes with the understanding with S. C. Spaulding that the plaintiffs would endorse the same above his name, and with the knowledge that such endorsement would be necessary before said notes could be discounted at the bank, and that he so endorsed the notes to save the trouble of having them carried to the plaintiffs for their endorsement, and then brought to him and again returned to the plaintiffs, and that, at the time of the endorsement of said notes, he said to S. C. Spaulding that the endorsement of the plaintiffs would have to be above his name, and that the relative liability of the parties must not be changed in any manner from what they were upon the original note. But it was not shown that what was said in this manner between the defendant and S. C. Spaulding was communicated to the plaintiffs, and no communication was ever had between the plaintiffs and the defendant on the subject, until some time after the notes became due, except the conversation with S. C. Spaulding. To the evidence of what was said by S. C. Spaulding to the defendant, and by the defendant to S. C. Spaulding, at the time of the endorsement, by the defendant, of said original note, and at the time of the endorsement of said renewal notes, the plaintiffs objected, but j the court admitted the evidence, for the purpose of showing the intention and understanding of the defendant in endorsing said notes, and the circumstances under which the endorsement was made, and upon the evidence as it thus stood, the court found, as a matter of fact, that said endorsement of said two notes described in the declaration by the defendant was not intended or understood by the parties to be a guaranty to the plaintiffs, of said notes, but was intended, and understood, as an endorsement after that of the plaintiffs, and only for the security of the bank. When said notes fell due, Spaulding & Co. were insolvent, and had made an assignment for the benefit of their creditors. Demand of payment, on both notes, was made at said bank, and notice of non-payment was given in the usual form of notice to endorsers, to the plaintiffs and the defendant, and the plaintiffs thereupon took up both of said notes. The court rendered judgment for the defendant, and the plaintiffs thereupon brought a writ of error in the superior court, when the judgment of said city court was affirmed, and judgment again rendered for the defendant. The plaintiffs then, by motion in error, brought the record before this court for revision.

      Goodman for the plaintiffs.

      Hooker and Hawley for the defendant.
   Ellsworth, J.

It is found that the note, in suit, was given in renewal of a larger one of $400, payable at the Farmers’ and Mechanics’ bank. That note was given by S. C. Spaulding & Co., to these plaintiffs, to apply on their debt due to the plaintiffs, of some eight hundred dollars. No other name was asked for, or expected, by the plaintiffs, as security for that note. Afterward, when the plaintiffs wished to get the note discounted, they endorsed, and offered it for that purpose, at the bank. But the bank declined to discount it without another name, whereupon the plaintiffs, at their own request, obtained the endorsement of this defendant, and afterward got the money at the bank, and applied it on the indebtedness of said S. C. Spaulding & Co. Before this last note became due, the note in suit was made, and left at the bank, payable to the plaintiffs, as first endorsers, to be substituted, by way of renewal. The plaintiffs again requested the defendant to endorse this note, and he did it without the least idea of becoming an endorser before the plaintiffs, or becoming liable to them upon the note, in any manner whatever.

Now, on these facts, the plaintiffs cannot be permitted, by erasing their own name from the note, after taking it up at the bank, to make the defendant a guarantor of the note to them. This would be in bad faith, and would be contrary to the understanding and objects of the parties. The first note was endorsed, by the defendant, to give it currency at the bank, and so was the second; and although the defendant wrote his name first, in time, on the last note, it was with the expectation that the plaintiffs, who were of necessity to be the first endorsers, as the note was made payable to their order, would put their name above the defendants, and so would be first liable to the bank, and to the defendant, if he should have to pay the note.

Now the evidence, the reception of which raises the main question in the case, was not only unimportant because superfluous, and so has done the plaintiffs no hurt, but it was strictly admissible as proof; it showed the history and manner in which the defendant’s name came to be on this note, and that the defendant never obligated himself to the plaintiffs, but rather that they had obligated themselves to him. Nothing is more common than to introduce evidence of the real and true relation of parties to each other, whose names are on negotiable paper, where, prima facie, the position, or order of signature, makes a contract different from the true relation of the parties. The proper enquiry is, who, among the parties, is to pay the debt. That is the person to be liable, whether he be maker or endorser. Beckwith v. Angell, 6 Conn. R., 315.

There is no error.

In this opinion, the other judges, Storrs and Hinman, concurred.

Judgment affirmed.


author: Storrs, J.

text:
    Colgrove vs. Rockwell.
    The Court has no power, either at common law, or by statute, to interfere with the doings of auditors, in actions of book-debt, on the ground that they have mistaken the evidence.
    This was an action of book-debt, in common form, brought by Rockwell against Colgrove.
    The cause was referred to an auditor, who, at the October term of the superior court for Hartford county, reported that he “found that the said Colgrove is justly indebted to the said Rockwell, upon the cause of action, set up in the plaintiff’s declaration, in the sum of twenty-five dollars and seventy-six cents.”
    Against the acceptance of this report, the defendant remonstrated, alleging as ground of remonstrance, that “said report was made under mistake, and misapprehension of the evidence in said cause, and against the evidence, which was produced in the same, and that the finding of said auditor was not in accordance with any evidence introduced.” The remonstrance then proceeded to set forth the evidence produced on the hearing before the auditor, and concluded by alleging that the said report and finding of the auditor were “ without evidence, and contrary to the evidence, and ought to be set aside.”
    On the hearing before the superior court, the defendant offered to show, by witnesses, what the evidence before the auditor was. The court decided that the evidence was not admissible, and no other proof being offered, accepted the report, and rendered judgment thereon.
    The defendant, by motion in error, then brought the record before this court, for revision.

      Welles and Strong in support of the motion.

      Barbour against the motion.
   Storrs, J.

The only ground stated in the remonstrance in this case, for setting aside the report of the auditor, is, that he was mistaken, as to the weight of the evidence, in regard to the enquiry whether the beef, in question on the trial, was unsound when the plaintiff sold it to the defendant; and the question presented is, whether the doings of auditors can be revised on that ground. We regard this as a question that has been long since decisively settled. As early as 1787 the point was directly determined in Parker v. Avery, Kirby, 353, where, on a remonstrance to a report of auditors, on the ground that they had mistaken the evidence, and decided erroneously as to the facts in question before them, it was held that their report could not be impeached for that reason, and that therefore such an enquiry should not be allowed. This decision has ever since remained unquestioned, without an attempt to have it disturbed, either by our courts, or the legislature. We therefore do not regard this as an open question. If, however, it were, we should have no doubt that it was not the intention of the legislature, in providing for the appointment of auditors, that their finding of facts should be the subject of review. They were designed as substitutes for juries; but it was provided that they should be selected, not like jurors, but by the court, by whom it was undoubtedly contemplated that they would be chosen, as they in fact usually are, with reference, not only to their peculiar qualifications to try the particular cases referred to them, but also to their situation in regard to any circumstances, which might produce an improper influence, or bias, in their minds, as to the parties, or the matter submitted to them, and which, although it might not constitute .a legal ground of challenge to a juror, might yet inspire a want of that entire confidence in them, which it is desirable that parties should feel in triers. Thus selected, there is certainly less occasion to subject their determination of facts to the revision of the court, than that of jurors ; and experience has not shown its necessity. The defendant has attempted to derive an argument in favor of the power and expediency of revising reports of auditors, on the ground of their having mistaken the evidence, from a supposed analogy to those cases where the court set aside verdicts on that ground. This argument, however, is not well founded. The reason, on which the exercise of the power of revising verdicts for that cause rests, is not only inapplicable to reports of auditors, but goes strongly to show that there is no such power in regard to them. A reference to the case of Bartholomew v. Clark, 1 Conn R., 480, in which it was first solemnly decided that the superior court had power to grant a new trial where a verdict is against evidence, shows that the ground of the decision was, that such a power is incidental to all courts, proceeding on the principles of the common law, and that courts in this state, acting on those principles, have, therefore, that power, in the absence of any statutory enactment depriving them of it. The power is possessed by such a court, from its very constitution, and this court treated it as a common law power, which was unrestrained by any positive prohibition. Such a prohibition was deemed necessary in order to devest it. The mode of trial, by auditors, in actions of book-debt, is not, however, a proceeding according to the course of the common law, but is created solely by statute, without which legislative provision it could not be adopted; and as, in the absence of any law providing for such a mode of trial, it could not be legally adopted, so, where it is prescribed, and there is an absence of any provision authorizing the court to interfere with the doings of auditors, on the ground that they have mistaken the evidence, there is no power thus to interfere. The statute, in regard to trials by auditors, contains no such provision. The court, therefore, have no such power, either by common law, or by statute.

The defendant’s counsel have endeavored to place this case on the ground that the auditor mistook the law, as applicable to the facts proved before him, and made such inferences from them' as the law does not warrant. The record, however, presents no such enquiry. The auditor, in his report, finds no facts specially, but only generally that the defendant is justly indebted to the plaintiff, in a particular form, on the cause of action declared on. The defendant, in his remonstrance, without stating on what ground the auditor came to the conclusion that the defendant was so indebted, only alleges that the report was made under a mistake and misapprehension of the evidence, and is not in accordance with, but against it; and the evidence offered by the defendant, on the trial of the remonstrance, consisted of the evidence before the auditor, and was introduced only for the purpose of showing that his finding was contrary to it. The only question on the remonstrance, therefore, obviously was, whether the auditor was mistaken as to the weight of the evidence before him. The superior court correctly excluded the evidence so offered, and there should not be a new trial.

In this opinion, the other judges, Ellsworth and Hinhan, concurred.

New trial not granted.