author: Waite, J.

text:
    Adams and others against Leavens and others.
    New-London,
    July, 1849.
    A mortgaged estate to B, who took possession and leased the premises to C for one year, at the rent of 1200 dollars, which, by a written agreement between B and C, was to be paid to B towards the extinguishment of A's debt to him secured by the mortgage. C occupied the property so leased, during the term. While the rent remained unpaid, C sold goods to B to the amount of 970 dollars, for which C drew a bill on B, payable on the 28th of August C was also the holder of another bill for 500 dollars, accepted by B, payable on the 12th of June. On the 13th of Map, B assigned, bona fide, the mortgage and contract relative to rent, to D; no notice of such assignment being given to C until the 27th of July. Before the bill tar 500 dollars became due, B failed, and C, who had got both the bills discounted at a bank, took them up, (as he was compelled to do,) at maturity. In a suit afterwards brought by B, its the name of B, against C, to recover said rent, C claimed the right to set off the amount of said bills. Held, 1. that to prevent a set-off by C of any indebtedness accruing to him after the assignment to B, it was incumbent upon B to give C notice of such assignment, in a reasonable time; 2. that the notice given in this case, was not in a reasonable time; 3. that as the bill for 500 dollars was taken up at the bank by C, before notice of the assignment to D. C was entitled to set off that amount; 4. that as the other bill had not been taken up by C, when the assignment to P was perfected by notice, but was then the property of the bank, C was not entitled to set off this claim.
    Where real estate was sold by A and B jointly, and A received all the proceeds, it was held, that in the absence of all other evidence, the presumption of law from these facts was, that the vendors were joint owners and equally interested, and therefore one half of the proceeds belonged to each; but this presumption was liable to be rebutted, by evidence chewing a different interest.
    This was an action of assumpsit, brought to recover the rent of certain dwelling-houses, and a cotton factory, leased to the defendants.
    They pleaded the general issue; and gave notice, that on the trial, they would set off, against the plaintiffs’demand, two claims in their favour-one, for goods sold and delivered to the plaintiffs, amounting to the sum of 970 dollars, 68 cents, and the other, a certain bill of exchange, drawn by C. W. Lawton, and accepted by the plaintiffs, for the sum of 500 dollars, and endorsed to the defendants.
    The cause was tried at New-London, September term, 1848.
    On the trial of the cause to the jury, it was proved and admitted, that Willes and Avery, being the owners of the property leased to the defendants, made two mortage deeds to the plaintiff's, to secure certain notes and liabilities, and in the mortgage deeds, acknowledged themselves to be holders of the mortgaged premises, as the lessees of the plaintiffs, and au-thorised them to enter upon the same, on their failure to perform the conditions of the deeds. They subsequently mortgaged the same property to Henry C. Tyler, and then failed, without having paid either of the mortgages. Tyler entered into possession of the premises, and leased them to the defendants. The plaintiffs being about to take measures to obtain possession of the property, an agreement was entered into, in writing, by the plaintiffs, the defendants and Tyler, by which it was stipulated, that the property should be leased to the defendants, for the term of one year from April 1st, 1846, at a rent of 1200 dollars, payable quarterly to the plaintiffs, which should be applied, in part-payment of the plaintiffs’ claims against Willes and Avery. In pursuance of this arrangement, the defendants entered into possession of the property, and occupied it during the term.
    In relation to the debts claimed to be set off, it was proved, that in February 1846, the defendants sold to the plaintiffs, certain goods, for 970 dollars, 68 cents, for which they drew their bill of exchange, payable in six months; which bill became due on the 28th day of August, 1846. About the same time, C. W. Lawton endorsed to the defendants another bill of exchange, accepted by the plaintiffs, for the sum of 500 dollars, payable in four months, and which became due on the 12th day of June, 1846. In March following, the defendants procured both of these bills to be discounted at the Quine-baug Bank, and endorsed and delivered them to the bank, receiving the proceeds thereof.
    On the 13th day of May, 1846, the plaintiffs assigned and transferred to Henry Douglass, of New-York, their mortgages against Willes and Avery, and their contract with the defendants for rent, to secure him for certain debts, claimed to be due from the plaintiffs to him. That assignment was made in the city of New-York, and no notice was given of the assignment to the defendants, who resided in Norwich, until the 27th day of July, 1846. The plaintiffs, shortly after, failed.
    The suit was instituted and prosecuted by Douglass, in the names of the plaintiffs, upon the contract for the rent, to recover the amount of the stipulated price.
    In consequence of the failure of the plaintiffs, the defendants were compelled to pay and take up the two bills, accepted by the plaintiffs, and discounted at the Quinebaug Bank; and they claimed the right to set off the amount of these bills, and to recover the balance.
    This was resisted, by the plaintiffs, who claimed, that, as by the terms of agreement, the rent was to be applied in part-payment of the debts due from Willes and Avery, secured by the mortgages, which had been assigned to Douglass, he was entitled to recover the rent, without any notice of the assignment given to the defendants ; and that, if any such notice was necessary, he was entitled to recover the rent which became payable, after such notice had been given.
    The plaintiffs, for the purpose of showing an indebtedness to Douglass, entitling them to recover for his benefit, introduced testimony to prove, that prior to the assignment, the plaintiffs, as partners, and Douglass, had sold certain real estate and machinery to Francis Hersey for 8,500 dollars ; and that the plaintiffs had received all the avails, without showing, by any other evidence, in what manner the property sold, was owned by them ; and claimed to the jury, that from these facts, and in the absence of all other evidence, they might presume that one half of the proceeds of the sale belonged to Douglass. And so the court informed the jury, in submitting the cause to them.
    The court instructed the jury, that as the debts due to the defendants were greater than, the one in favour of the plaintiffs, the defendants were entitled to a verdict for the balance, unless the jury should find, that the assignment to Douglass was made bona fide and for a full consideration. That if they should find that it was so made, it was further incumbent upon him to give to the defendants notice of the assignment, within a reasonable time, to prevent their setting off any indebtedness accruing to them, after the assignment and before notice. And that the notice given on the 27th day of July, 1846, under the circumstances, was not given in a reasonable time.
    That with respect to the bill of exchange for the sum of 500 dollars, as the defendants had paid the amount to the bank and taken it up, before they had notice of the assignment, they had, notwithstanding the assignment to Douglass, a right to set off that demand. But in relation to the other debt in favour of the defendants, as the bill given for it, at the several times, when the assignment was made and the notice given, was the property of the bank; and as the plaintiffs were indebted to the bank, and not to the defendants, for the amount, the subsequent payment of the bill, by the defendants, gave them no right of set-off for the same, provided the assignment to Douglass was bona fide and for a full consideration.
    The jury returned a verdict in favour of the plaintiffs for the amount of their claim, after deducting the bill of 500 dollars. Both the parties, claiming that the court erred in omitting to instruct the jury in conformity with their respective claims, moved for a new trial; and the questions of law were reserved for the advice of this court.

      Strong, for the plaintiffs,
    contended, That no set-off could legally be made against them, in this suit, under all the circumstances of the case.

      Willes and Avery being owners of the property, and having mortgaged it to the plaintiffs, at the same time agreeing to hold it as their lessees, and with authority in them to take possession, in case of default in paying the mortgage, and possession being taken accordingly, the property, by an agreement between the plaintiffs and the defendants and Tyler, the subsequent mortgagee, was let to the defendants, with the agreement of all parties, that the rent should be applied to extinguish the mortgage debt; that being the only purpose for which the plaintiffs could have possession or let the premises. After this, the plaintiffs, being indebted to Douglass, assign to him the lease, and their debt and mortgage, to which the rent was to be applied. This was the only way in which the agreement could be carried into full effect. And because it was so, the defendants can make no defence on the ground of a want of notice of the assignment by the plaintiffs to Douglass. They are in no way prejudiced, by the want of this notice; for to apply the rents to any other debt of the plaintiffs to the defendants, would be a direct violation of the agreement between these parties, as well as of the rights of the other parties to that agreement. Willes and Avery will have been deprived of the use of the property tor one year, by the entry of their mortgagee, who was bound to apply the rents to their debt; and, at the same time, one year’s interest will have been added to their debt; no part of the principal or interest being to be extinguished by these rents. The plaintiffs occupying only as mortgagees in possession, and Douglass succeeding to their debt and all their rights, especially to the right of having these rents so applied, are to have no such benefit; but they are now to be applied to another debt in no way connected with the mortgage or lease. Tyler, the other party to the agreement on which the action is founded, loses all benefit of the rents, as applying to reduce the mortgage debt, leaving it so as probably not worth being redeemed by him.

      E. Perkins, for the defendants,
    contended, 1. That they were entitled to set off their debt of 500 dollars. This draft was held by the defendants, before the assignment to Douglass, and afterwards, before they received any notice of the assignment, was by them paid after protest, and was thus in their hands a subsisting debt against the plaintiffs, when they received such notice. Now, in the first place, notice of the assignment, to affect the rights of debtors, must be given in a reasonable time. Bishop & al. v. Holcomb, 10 Conn. R. 144. Van Buskirk & al. v. Hartford Fire Insur. Co., 14 Conn. R. 141. The notice in this case not having been given until more than two months after the assignment, was clearly not given in a reasonable time. Secondly, there is nothing in the connexion of the agreement for rents with the Willes and Avery mortgages, to vary the case from that of any ordinary debt, in respect to the right of set-off, or the necessity of notice of assignment. The defendants are not responsible for the plaintiffs’ faithful application of the rents to the mortgage debts. Whatever operates as a payment of the rents, operates also as a payment on the mortgage. The law makes the application; and it is not in the power of the plaintiffs or of Douglass to prevent it.
    2. That the defendants are also, entitled to set off their claim of 970 dollars, 60 cents, for goods sold to the plaintiffs. It is to be borne in mind, in the first place, that the right
      which the defendants seek to exercise, is one based upon the principles of natural justice and equity, and is peculiarly fa-voured by courts. And here all the equity is on their side. Douglass, the real plaintiff, has parted with no property on the strength of this assignment. It was taken as security for prior subsisting debts. Secondly, the assignee of a chose in action not negotiable, takes it subject to all the equities existing against it, as between the assignor and the debtor. 2 Sw. Dig. 150. Turton v. Benson, 1 P. Wins. 490. 1 U. S. Dig. 248. pl. 109. Chamberlin v. Gorham, 20 Johns. R. 144. Greene, admr. v. Hatch, 12 Mass. R. 195. Thirdly, every person, who takes from an insolvent assignor a chose in action not negotiable, falling due at a future time, takes it subject to the debtor’s right to set off all debts due from the assignor, which have accrued out of dealings existing between the parties prior to and at the time of the assignment. 2 Sw. Dig. 150. Hosmer, admr. v. Merriam, 1 Root, 427. George v. Claggett, 7 Term R. 359. S. C. 2 Smith’s Lead. Ca. 77. Hogan v. Shorb, 24 Wend. 458. Fourthly, in this case, the mutual debts subsisting between the parties, are the result of mutual credits subsisting between them prior to the assignment. In such a case, a court of equity will decree a set-off, independently of the statute. 2 Sto. Eq. § 1436. n. Cobb v. Haydock, 4 Day 472. 474. Lindsay v. Jackson, 2 Paige, 581. Fifthly, the failure of the assignee, in this case, to give the defendants notice of the assignment in a reasonable time, will preclude him from making such assignment available to defeat a set-off.
    3. That the court erred in instructing the jury as to the presumption raised by the conveyance to Hersey.

   Waite, J.

Willes and Avery mortgaged certain property to the plaintiffs, and afterwards mortgaged the same property to Henry C. Tyler, who entered into possession, and leased it to the defendants, for the term of one year, at a stipulated rent of twelve hundred dollars, payable quarterly. By a subsequent arrangement, made by the plaintiffs, the defendants and Tyler, it was agreed, by an instrument in writing, that the rent should be paid to the plaintiffs, and the amount applied toward the extinguishment of the debts due to the plaintiffs from Wittes and Avery.

By the terms of this contract, the defendants, upon enjoying the use of the property, according to the provisions of the lease, became the debtors of the plaintiffs, and liable to pay them the stipulated rent. And what would be the situation of the parties, provided the plaintiffs had made no assignment?

Before the suit was commenced, which was not until after the whole rent became due, the plaintiffs had failed and become insolvent; and the defendants had paid, and taken up from the bank, the two bills of exchange which the plaintiffs had accepted. By the provisions of the statute, they would clearly have a right to set off the amount of these two bills, against the plaintiffs' demand for rent, and recover the balance.

The circumstance that the demand for the rent grew out of a lease of the property mortgaged by Willes and Avery, and that the amount of that rent was to be applied toward the extinguishment of the debts for which the property was mortgaged, can make no difference, as to the defendants’ right of set-off. The rent was payable to the plaintiffs for their own benefit, and not to Willes and Avery; and with the latter it is immaterial in what manner that rent is paid, whether by the acceptances of the plaintiffs, or in the legal coin of the United States. In either case, the payment will enure to their benefit. The defendants, in such case, would owe the plaintiffs the amount of the rent; and the plaintiffs would owe the defendants the amount of the two bills of exchange. The debts would be mutual debts; and as the plaintiffs are insolvent, the statute authorises the set-off.

Such would be the effect had no assignment been made by the plaintiffs. But they have made an assignment to Douglass, both of their mortgages and their demand for rent. What effect has this proceeding upon the rights of the defendants? Douglass took the claims subject to all the equities existing at the time the assignment was made and perfected. Whatever payments had been made upon the mortgages, while they remained the property of the plaintiffs, would operate as such, after the transfer to Douglass; and whatever right of set-off existed, at that time, would continue, notwithstanding the assignment.

Had the defendants retained possession of these bills against the plaintiffs, and not indorsed them to the bank, their right of set-off as to both claims, would have continued; and Douglass could recover nothing upon the contract for rent.

But before the assignment was made to Douglass, the defendants had indorsed their bills to the Quinebaug Bank, and parted with their interest in them. The plaintiff's, in consequence, ceased to be the debtors of the defendants, and became indebted to the bank. And had Douglass, immediately upon the assignment, given notice to the defendants of the transfer to him, the defendants would have had no debt to set off against the claims for rent.

But Douglass, for a period of more than two months after the assignment, omitted to give that notice; and, in the mean time, the defendants had paid and taken up from the bank, one of the bills, and of course, at the time they received notice, they were the lawful holders of the bill, and, as against the plaintiffs, were entitled to a set-off.

In order to make the assignment to Douglass effectual, and prevent any intervening equities, it was necessary for him to give the defendants notice of that assignment, within a reasonable time. Van Buskirk v. Hartford Fire Insurance Go. 14 Conn. R. 144. Bishop v. Holcomb, 10 Conn. R. 446.

Until that was done, the defendants had a right to treat the claim for rent as a debt still due to the plaintiffs. They might well take up the bill for five hundred dollars, which they had indorsed to the bank, and hold it, to apply on the demand against them for the rent, without taking any measures to enforce the collection against the plaintiffs.

But the other bill stands upon different ground. When the assignment to Douglass was perfected by the notice, that remained the property of the bank, and the defendants had no interest in it, which they could setoff, even if they had, at that time, been sued by the plaintiffs. The bank stood in the same situation, with respect to the larger bill, which the defendants did, in respect to the smaller one. Both held by indorsement from the drawers. The right of set-off was in the holder, and not in the indorser.

With respect to the presumption arising from the joint sale of property, made by the plaintiffs and Douglass, the law, in such case, in the absence of all other evidence, presumes that it was so made, because the vendors were joint owners and equally interested. It is however a mere presumption, liable to be rebutted, by other evidence, showing a different interest.

We do not, therefore, discover any reason why a new trial should be granted to either party.

In this opinion the other Judges concurred.

New trial not to be granted.


source: Caselaw Access Project

author: Church, Ch. J.

license: Public Domain

text:
    Perkins against Rogers and another.
    New-London,
    July, 1849.
    A leased his farm to B, by indenture, for one year, B covenanting to pay a rent of 300 dollars, of which 225 dollars was to be paid in money, and 75 dollars in betterments on the farm, such as A should direct. In an action brought by A against B on the covenants in this instrument, A, after setting -out the terms of such covenants, alleged a breach of them by B, without averring that A gave any directions as to the betterments to be made. B pleaded performance in bar of the action, averring specially a performance of each of the covenants as set out in the declaration. Upon this plea in bar A took issue, and went to trial thereon, claiming to recover only for the alleged breach in not making betterments on the farm. Assuming the onus probandi of the issue upon himself, he opened, by offering testimony to show, that B had made no betterments, and then rested, without attempting to prove, that he (A) held given B any direction to make them. The court ruled out the testimony so offered by A, and instructed the jury to return a verdict for B; which being done, it was held, by this court, that there had been a mistrial of the cause, and a new trial was granted on that ground.
    Under the issue joined, in such case, the only question was, whether the facts averred by B, in his plea, were true; and the burden of proof rested upon him.
    This was an action of covenant broken. The declaration was substantially as follows: That on the 3rd day of March, 1843, at Salem, by a certain indenture then and there made between the plaintiff, on the one part, and the defendants, on the other part, the plaintiff did demise, lease and to farm let unto Henry C. Rogers, [one of the defendants,] his the plaintiff’s farm in said Salem, called the Wood-bridge farm, for the term of one year from the first day of April, 1843, for the rent of 300 dollars, to be paid on or before the expiration of said year-225 dollars in cash, and the remaining 75 dollars in betterments and improvement on said farm, such as said Perkins [the plaintiff] should direct; and the defendants covenanted and agreed with said Perkins, in and by said indenture, that said H. C. Rogers should well and truly pay said rent, in manner and form aforesaid; should use and occupy said farm, in a good and husbandlike manner; commit no waste thereon; and should well and truly fulfill and perform said covenants, in all things on his part to be done and performed; by virtue of which demise, said H. C. Rogers, who had entered into and upon the demised premises and was possessed thereof, remained in the premises, and continued so possessed of the same, during said term; and although the plaintiff has kept and performed all the covenants contained in said indenture, the defendants have not kept and performed any of the covenants in said indenture, on their part to be kept and performed, and have not paid said rent so accruing under and by virtue of said lease, but the whole of said rent is still in arrear and due and unpaid; and said H. C. Rogers did not use and occupy said farm in a good and workmanlike manner, without committing waste, and did not make the betterments and improvements stipulated in said lease, according to the meaning and intent of the same; and so the defendants have not kept their said covenants, though often requested so to do, but have broken the same, &c.
    The defendants pleaded, that they had fully kept and performed the covenants contained in said lease by them to be kept and performed, averring, that long before the commencement of this action, viz., on the 29th day of May, 1844, said H. C. Rogers had fully paid and satisfied to the plaintiff, in cash, said sum of 225 dollars; and the plaintiff, on said day, made and delivered to said H. C. Rogers, his, the plaintiff’s receipt in full therefor. And the defendants further averred, that during the year for which said farm was leased, said H. C. Rogers was residing thereon, and was, at all times, ready and willing, and offered, to pay to the plaintiff said other sum of 75 dollars in betterments and improvements upon said farm, such as the plaintiff should, according to the provisions of said lease, direct; which directions said H. C. Rogers, from time to time during said year, requested the plaintiff to give; that said H. C. Rogers made all such betterments and improvements upon said farm as the plaintiff directed, which were of great value, viz., of the value of 75 dollars; and that he used and occupied said farm in a good and husbandlike manner, without committing waste.
    The plaintiff’s replication traversed the defendants’ plea; on which issue was joined.
    The cause was tried, on this issue, at Norwich, March term, 1849.
    The plaintiff disclaimed any right to recover in this action, except for the breach of the covenant to pay, within the year for which the lease was given, the amount of 75 dollars, in such betterments as the plaintiff should require. As to this, the plaintiff offered the testimony of John Fitch and L. H. Goddard, that they resided in the vicinity of said farm, during the year in question, and should probably have known the fact, if any material betterments had been made upon it; and that they knew of no betterments so made. It was admitted, that, during this year, the plaintiff resided in the town of Lyme, at the distance of several miles from the farm; and no evidence was offered by him of any direction given by him to the defendants, or either of them, to make any betterments, or of any notice to them, or either of them, from the plaintiff, of what he required to be done on the farm.
    The plaintiff having given notice in court, that he should offer no further testimony in support of his action, the defendants’ counsel thereupon objected to the admission and consideration of the evidence so offered, as immaterial, irrelevant, and, if received, as being alone insufficient to sustain a verdict for the plaintiff, on this declaration. Of that opinion was the court; and thereupon the jury were directed, that their verdict should be for the defendants. The jury returned a verdict in their favour accordingly; and the plaintiff moved for a new trial for a misdirection.

      McCurdy and Wait, in support of the motion,
    contended, I. That the defendants having pleaded performance, it was necessary for the plaintiff, in order to sustain the action, only to prove, that no betterments had been made, by the defendants, during the year.
    2. That if the declaration was defective, in not containing an averment, that the plaintiff had pointed out the better-ments to be made and directed the defendants to make them, such defect was cured by the plea. United Stales v. Morris, 10 Wheat. 246. 3 U. S. Dig. 164, 5. 1 Sw. Dig. 602.
    3. That the issue being whether the defendants had made betterments on the farm or not, the testimony of Fitch and Goddard was relevant and material, and should have been received to support the claim of the plaintiff that no better-ments had been made. Bartlett v. Evarts, 8 Conn. R. 523.

      Strong and Hill, contra,
    contended, 1. That the defendants having hired the plaintiff’s farm for one year, at the rent of 300 dollars, of which 225 dollars was to be paid in money, and 75 dollars in such betterments as the plaintiff should direct; and having paid the money part of the rent; he was under no obligation to do any thing further, except as the plaintiff should direct what was to be done. This, in the first place, was a condition precedent, and must have been stated in the declaration, and proved on the trial, to subject the defendants. 2 Stark. Ev. 89-91. Potter v. Shepherd, 6 Term R. 665. 668. & seq. 1 Chitt. Plead. 311. 319. 322. Secondly, if the defendants had made betterments on the farm, without any direction from the plaintiff, this would not have satisfied their obligation. The betterments, to be available, must have been made by the plaintiff’s direction.

    2. That under the plea of the defendants and the issue joined, it was incumbent upon the plaintiff to show what betterments he had required, and this would have rendered it necessary for the defendants to show performance of what was so required.
    3. That the testimony offered by the plaintiff, was properly rejected. If admitted, it could not have affected the result.
   Church, Ch. J.

This is an action of covenant broken. The plaintiff in his declaration sets out the terms of the covenants on the defendants’ part, and then proceeds to allege a breach of them; but without averring the performance of a condition precedent, by himself, connected with the defendants' covenant to pay seventy-five dollars of the rent in betterments and improvements on the farm, such as said Perkins, the plaintiff, should direct. The plaintiff, in fact, did not complain of any other breach of covenant than this.

The defendants pleaded performance in bar of the action, and averred specially a performance on their part, of each of the covenants of the lease, as alleged or described in the declaration. Upon this plea in bar the plaintiff took issue, and denied the performance as pleaded, and put himself on the country. The plaintiff, on the trial, disclaimed any right to recover, except the seventy-five dollars which was agreed to be paid in betterments and improvements.

On the trial, it seems, that the plaintiff opened, by introducing some evidence tending to show that the defendants had made no betterments at all, and then rested, without attempting to prove, that any direction had been given or request made by him that the defendants should make them. The defendants thereupon objected, that the evidence thus introduced was not sufficient, and would not, without proof of such direction or request, warrant a verdict against them; and so the court decided, and directed a verdict for the defendants.

The mistake in these proceedings, seems to have arisen from the fact, that the plaintiff undertook, without objection, to go into proof of his declaration, as if the general issue had been pleaded. This was wrong. The defendants, having pleaded performance specially in bar of the action, as their only plea, assumed, upon the record, the burden of proof. Under the issue thus joined, the question was, not whether the plaintiff had disclosed in his declaration a good cause of action, or was bound to prove one; but it was, whether the facts averred by the defendants, in their plea, were true. These, and nothing else, had been affirmed and denied, by the issue.

The defendants, by not demurring to that part of the declaration to which they excepted, had, in that stage of the cause, waived objections to it, and, by a plea of performance in bar, had confessed the facts alleged in the declaration. Instead, therefore, of objecting that the plaintiff had not proved enough, it was the duty of the defendants to have assumed the onus probandi, and have proved their own plea.

The propriety of this course of proceeding was sanctioned, by this court, in the case of Scott v. Hull, 8 Conn. R. 207., and in conformity with the well known rules of pleading, in which it was said, “In covenant there is no general issue; and the defendant, by his plea of performance, assumed the burden of proof, and equally as on a plea of full payment, his was the right of opening and closing the argument." 2 Greenl. Ev. 247.

Under a rule of practice adopted by the judges in England, if the object of the suit is, to recover unliquidated damages, so that it becomes necessary for the plaintiff to go into proof of them, he is permitted to begin; but we have not yet adopted any such rule, and to do so in this case, would in effect overrule the point decided in the case of Scott v. Hull. But under such a rule, it would not follow, that the onus probandi of the issue, would be changed.

Nor would it make any difference, as we can see, that the plaintiff’s declaration was defective in not averring a direction or a request by him to the defendants, regarding the betterments to be made upon the leased premises. The sufficiency of the pleadings was not then in issue. The defendants, if they pleased, could have demurred to this part of the declaration, and have pleaded performance of the other independent covenants declared upon; or, if the defect was not cured by verdict, they could have arrested a judgment for the plaintiff, to be rendered upon this breach of the covenants. 1 Chitt. Pl. 643.

The court are of opinion, that there has been a mistrial of the cause, and advise that a new trial be granted.

In this opinion the other Judges concurred, except Waite, J., who, for some reason not known to the reporter, declined judging.

New trial to be granted.


text:
    The Quinebaug Bank against Leavens and another.
    New-London,
    July, 1849.
    Where the plaintiffs in the suit were a bank corporation, and one of the jurors who tried the cause, was, at the time of the trial, father of a stockholder in such bank; which was unknown to the defendant and his counsel until after the verdict, which was in favour of the plaintiffs; on a motion in arrest, it was held, that although the motion disclosed a sufficient ground of principal challenge, if made at the proper time, yet as it did not show, that the defendant had exercised the requisite diligence to make enquiry, the verdict ought not to be set aside.
    This was an action against the defendants, as indorsers of an inland bill of exchange; tried, on the general issue, at Norwich, March term, 1849; when the plaintiffs obtained a verdict.
    The defendants thereupon moved that the verdict be set aside, on the following ground. Peleg Thomas, who was one of the jurors who tried the cause, is the father of Edward Y. Thomas, who is, and was, at the time of the trial, a stockholder in The Quinebaug Bank, and thus interested in the cause; which facts were unknown to the defendants, and to their counsel, until after the verdict was rendered.
    The superior court found these facts to be true; and reserved the question arising thereon, for the consideration and advice of this court.

      Foster, in support of the motion,
    contended, 1. That the natural persons of whom the corporation consists, i. e., the stockholders-are parties to the suit; and the fact that a juror is of affinity to any such member of the corporation, is a ground of principal challenge. Mellor v. Spatemen, 1 Saund. 344. 1 Sw. Dig. 737, 8. Besides, the motion finds, that the juror’s son was interested in the cause.
    2. That as the ground of challenge, in this case, was unknown to the defendants and their counsel, at the time of the trial, they had no opportunity to take exception to the juror then ; and consequently, they can now have relief only by this motion. The case comes within the reason of the statute disqualifying judges. Woodbridge v. Raymond, Kirby, 279.

      Strong and E. Perkins, contra,

      after remarking that the interest in the juror was merely technical, having no tendency to deprive the defendants of an impartial trial, contended, 1. That the defendants, having had an opportunity to challenge the juror, when they were enquired of, according to the established practice, by the judge, whether they had any objections to the jurors called, and having been thus put upon en-quiry, will now be taken to have known all the facts which that enquiry would have placed in their possession. They cannot now take advantage of their own negligence. Selleck v. Sugar Hollow Turnpike Company, 13 Conn. R. 453. 459.
    2. That the motion does not allege any facts showing the existence of an actual disqualifying interest in the juror. There is no pretence that the juror himself had the slightest pecuniary interest; but it is said, that his son had such an interest. This would not influence the mind of the juror in the least, unless the fact was known to him, at the trial. But such knowledge is not alleged or found; nor will the law presume it from the facts which are alleged and found. The motion is therefore fatally defective, on this ground.
   Church, Ch. J.

The question here arises upon a motion in arrest of judgment, which alleges, that one of the jurors in the cause, was the father of one of the stockholders in the Quinebaug Bank, the prevailing party in the action; of which fact the opposite party was ignorant, when the jury was impanneled.

Motions in arrest of judgment, in this state, for causes not apparent of record, are, in truth, only applications for new trials, and are so called and so treated elsewhere. And when such motions prevail, a venire facias de novo is awarded. We see no occasion, therefore, to apply different principles to these different modes of applying for new trials.

The rule is well known, that a petition for a new trial for extrinsic causes, will not be sustained, if the ground of it existed at the time of trial, and was either known to the petitioner, at the time of trial, or might have been known by him, by using due diligence. 1 Sw. Dig. 816. (Dutton's ed.) The rule is a salutary one, and is as applicable to motions in arrest of judgment filed in court, as to petitions for new trials under our statute, duly served and returned into court. Verdicts and judgments ought not to be disturbed for slight causes, and when it is not apparent nor reasonably to be presumed that trials have not been full and fair, especially when no controuling principle of law has been disregarded or mistaken.

There is no doubt but the cause of objection to the juror, alleged in this motion, furnished a legal ground of principal challenge, if it had been made in due time; but it was of such a nature that parties might well waive it. 3 Co. Litt. 519. (Day’s ed.) Mellor v. Spateman, 1 Saund. R. 344. 11 Petersdorf’s Abr. 74. But it does not appear, by any averment in this motion, that the defendants used any diligence, or made even the ordinary enquiries of the jurors themselves, or otherwise, as to their qualifications; although from the fact that a banking corporation was the plaintiff, consisting of numerous stockholders, they might well suspect, either that some stockholder, or one or more of their many relatives, might be found upon the jury. This could have been ascertained, by a moment’s enquiry. Instead of making this enquiry, when called upon by the court for objections to jurors, as is usual in our practice, or at any time before; the defendants, as we may presume, preferred to take the risk of a verdict, and if it should be against them, then to look about for objections. There can be but little difference, in legal effect, between the actual knowledge of this relationship, by the defendants, at the time of the trial, and their gross negligence in not ascertaining it. And it would be unjust to subject the plaintiffs to the expense of a new trial, by reason of such negligence; especially, as they might well have believed, from the trivial nature of the objection, that the defendants intended to waive it. If an enquiry had been made of the jurors, and this relationship had not been disclosed, or other reasonable pains had been taken, our opinion would have been otherwise.

In the case of King v. Sutton & al., 8 B. & Cress. 417. (15 E. C. L. 252.) Lord Tenterden, Ch. J., said, “ that he was not aware, that a new trial had ever been granted, on the ground that a juror was liable to be challenged, if the party had an opportunity of making the challenge.” And this was said in a case where the ground of challenge was not known to the party until after the trial. And we understand, that this suggestion was approved by this court, in the case of Selleck v. The Sugar Hollow Turnpike Company, 13 Conn. R. 453.

It is said, that the early case of Tweedy v. Brush, Kirby, 13., is opposed to this opinion; but the question here made was not suggested in that case.

For the reasons now stated, the court will advise, that the motion in arrest of judgment be overruled.

In this opinion the other Judges concurred.

Motion in arrest overruled.


author: Ellsworth, J.

text:
    Abel and another against Fitch.

      New-London,

    July, 1849.
    Where the defendant, in an action for overflowing the plaintiff’s land, by the raising of the defendant’s dam, in 1833, higher than he had a right to raise it, to rebut evidence introduced by the plaintiff, conducing to sustain his action, offered in evidence a writing, signed by H, and addressed to the defendant, in 1836, two years after the present controversy had commenced; in which writing, H stated in what manner the dam was raised at the time referred to, he having charge of the mill at that time, and having since deceased; it was held, that such writing was inadmissible, it being the mere statement of a deceased person, post litem motam, and not within any of the established exceptions to the rule excluding hearsay testimony.
    Where a paper, signed by the parties, submitting their differences to the award of arbitrators, was before the court and jury; and the question was, whether that paper was then in its original form, or had since been altered; the words, “boards [when so used, called flash boards,] to the height of ten inches”appeared on the paper as an interlineation; and to prove that the interlineation had been made since the submission, the plaintiff offered the arbitrators as witnesses, who testified, that they had no knowledge or recollection that it was in the submission, when they acted as arbitrators; that according to their recollection and belief, there was no question before them about an injury from flash boards; nor did they hear anything about them from the parties, but estimated damages done by the permanent dam; it was held, that this testimony conduced to prove the fact for which it was offered, and was admissible.
    Where it was stated, by way of recital, in a submission to arbitrators, by A and B, made in 1838, that various differences existed between them, which took place in the month of July, 1834, in consequence of B's putting up his mill-dam boards to the height of ten inches, which caused the water to flow back upon A's lands, for which he claimed damages from B; the parties binding themselves to perform the award, and agreeing that it should be final and conclusive on them; and the arbitrators awarded a sum of money to be paid by B to A; in an action afterwards brought by A against B, for an injury to A's land, by B's raising his dam in 1833, higher than he had a right to raise it, B claimed, that A was estopped, by the submission and award, from making this claim; it was held, that A was not so estopped, there not being a single requisite of a legal estoppel.
    This was an action on the case, alleging, that the defendant, by means of a dam on his own land, had raised the water of a stream flowing through the adjoining land of the plaintiffs, four feet higher than he had any right to raise it, and thereby caused it to inundate the plaintiffs’ land.
    The cause was tried, on the general issue, at Norwich, March term, 1849.
    To rebut evidence introduced by the plaintiffs, tending to prove, that the dam in question had been raised by N. H. Fitch, the proprietor thereof, in the year 1833, to a greater height than he had a right to raise it, the defendant offered in evidence a writing of which the following is a copy, accompanied with proof that Joseph O. Hopkins, whose signature was thereto subscribed, was, at the time when the water was claimed to have been raised, in the employment of N. H. Fitch, having charge of the mill then upon the premises of the defendant; and that said Hopkins was now dead.

      “Norwich, January 14th, 1836.

      N. H. Fitch, Esq., Sir,
    In answer to your enquiries relative to raising your dam, as near as I can recollect, it was raised, at the North-west end, seventeen or eighteen inches, gradually decreasing, at the South-east end, to a point, at the top of the dam. The end next the grist-mill was not raised any of consequence. I should think, as near as my memory serves me, that we did not raise it the whole length, say about three-quarters of the dam, beginning at the end next to the iron-works, and continuing, as above-stated, until we struck a level with the old end near the grist-mill. Yours, &c., Jos. O. Hopkins.”

    To the admission of this document, as evidence of the facts therein stated, the plaintiffs objected; and the court ruled it out.

      For the purpose of proving that the dam had not been raised as claimed by the plaintiffs, the defendant offered in evidence, a submission and award, of which the following are substantially copies: “ Whereas various differences and controversies exist between Elijah Abel, Elijah H. Abel and Nehemiah H. Fitch, all of Bozrah, which differences took place in the month of July, 1834, in consequence of said Fitch's putting up his mill-dam, [boards to the height of ten inches,] which caused the water to flow back upon lands which then belonged to said Elijah Abel, and since conveyed to Elijah H. Abel, son of said Elijah, for which they claim damages from said Fitch: Now, for the amicable and speedy determination of the same, we, the said Elijah Abel, Elijah H. Abel and Nehemiah H. Fitch, do hereby agree to submit and refer all controversies and matters of dispute now between us, which commenced as aforesaid and now existing up to the 1st day of April, 1838, to the arbitrament, determination and award of Simeon Abel and Nehemiah Huntington, both of said Bozrah, to be heard by them, on any day they shall appoint between this date and the 15th day of May, 1838. And the said parties do hereby mutually promise and agree, and bind themselves and their heirs, to perform and execute such award as said arbitrators shall make and publish in the premises; and that the same shall be final and conclusive on the parties, as to matters of dispute now existing between us.” Dated the 24th day of April, 1838; and signed and sealed by the parties.
    “We, the undersigned, to whom the within differences were submitted, having viewed the premises of contention, and hearing the pleas of all parties therein concerned, and duly weighing and considering the same, do say, that according to our best judgment, the within named Nehemiah II. Fitch must pay to said Elijah Abel and Elijah H. Abel, six dollars per annum, for the time within specified; which will be 22 dollars, 50 cents. Dated at Bozrah, May 2d, 1838.

      Simeon Abel.

      Nehemiah Huntington.”’

    In the foregoing submission, the words within brackets were interlined, and were, as the plaintiffs claimed, inserted without the consent or knowledge of Elijah Abel and Elijah H. Abel, who had signed the submission after it was made to the arbitrators and after their award was made. To prove this, the plaintiffs introduced the arbitrators as witnesses, who testified, that they had no knowledge or recollection that this clause was in the submission, when the matter was submitted to and heard by them; and that, according to their recollection and belief, it was not then in the submission: that they were not called upon, by the parties to the submission, to decide, nor did they decide, as to the effect produced upon said Abel’s land, and did not then hear or know any thing of the existence of flash boards, but estimated damages done by the dam, as it then was, and had been, used and occupied, by N. H. Fitch; the Abels claiming, that that dam was higher than Fitch had right to build and maintain it.
    To the admission of so much of this testimony as related to the matter heard and determined by the arbitrators, except only as it appeared in the submission and award, the defendant objected. But the court admitted it, for the purpose for which it was offered.
    The defendant further claimed, and prayed the court to charge the jury, that if they should find, that the submission had been executed by the persons appearing as parties thereto, and had not been altered in the manner claimed by the plaintiffs, the legal effect of the submission would be to estop E. H. Abel, who had signed it, from thereafter claiming that the dam had been raised to too great a height in the year 1833.
    The court did not so charge the jury, but instructed them, that the submission, if a genuine instrument, was to be considered by them, in the cause; but if so considered by them, the plaintiff, E. H. Abel, was not estopped or prevented from claiming that the dam had been raised to too great a height in 1833.
    The plaintiffs obtained a verdict; and the defendant moved for a new trial.

      Rockwell and Foster, in support of the motion,
    contended, 1. That the paper signed by J. O. Hopkins, was admissible. A declaration in writing, made by a person since deceased, having competent knowledge of the fact in question, which occurred in the ordinary course of his business, with no interest to misrepresent, is admissible as evidence in controversies between third persons. The rule excluding hearsay evidence, has many exceptions. It is admissible, 1. in proof 0f public boundaries; 2. in relation to pedigree ; 3. as part of the res gesta; 4. when against the interest of the witness; 5. entries made in the regular course of business ; 6. to prove the death of a person; 7. on the question of marriage; 8. of legitimacy ; 9. the time of birth and age of individuals; 10. under other peculiar circumstances. Davies v. Pierce & al., 2 Term R. 53. Holloway v. Rakes and Doe d. Foster v. Williams, cited by Buller, J., Id. 55. Williams v. Ensign, 4 Conn. R. 456. Doe d. Stansbury v. Arkwright, 5 Car. & Pa. 575. (24 E. C. L. 462.) Denn d. Pickett v. Pickett, 3 Dev. 6, 7. per Ruffin, J. Jackson d. Youngs v. Vredenberg, 1 Johns. R. 159. West-Cambridge v. Lexington, 2 Pick. 536. Scott’s lessee v. Ratcliffe, 5 Pet. 81. 85, 6. Lewis v. Marshall, 5 Pet. 470. Jackson d. Miner v. Bone-ham, 15 Johns. R. 226. Jackson d. The People v. _Etz, 5 Cowen 314. 319. Whittuck v. Waters, 4 Car. & Pa. 375. (19 E. C. L. 427.) Fogler’s lessee v. Simpson, cited 2 Dall. 117. Pancoast’s lessee v. Addison, 1 Har. & Johns. 356. Leggett v. Boyd, 3 Wend. 376. Curtiss v. Patten, 6 Serg. & R. 135. Herbert v. Tuckal, T. Raym. 84., cited in Roe d. Brune v. Rawlings, 7 East 290. Price v. Earl of Torring-ton, 1 Salk. 285., a leading case. Welsh v. Barrett, 15 Mass. R. 380. Halliday v. Martinet, 20 Johns. R. 168. Augusta v. Windsor, 19 Maine R. (1 Appl.) 317. Collins v. Hare, 3 Dow & Clarke, 139. 145. 149. Middleton v. Melton, 10 B. & Cress. 317. (21 E. C. L. 84.) Dwight v. Brown, 9 Conn. R. 84. Barker v. Ray, 2 Russ. 63. (3 Cond. E. Ch. R. 33. n.) The principle of these cases is applicable to the question before the court; and in some of them, the circumstances are similar to those in the present case.
    2. That the testimony of the arbitrators, was inadmissible. In the first place, to show any matter extrinsic to the submission and award, and that the subject matter submitted and decided was different from what appeared on the submission and award, is repugnant to the rules of law regarding judgments and awards. 1 Sw. Dig. 471. 1 Greenl. Ev. §275, 6. Bulkley v, Stewart, 1 Day, 130. Secondly, the submission and award, considered simply as writings, cannot be varied or explained, by parol evidence. The general principle is too familiar to require a reference to authorities. And it matters not for what purpose a written instrument is offered in evidence, whether as the foundation of an action, or for any collateral purpose-the rule equally applies. Reading v. Weston, 8 Conn. R. 117,
    3. That E. H. Abel was estopped from claiming that the dam had been raised to too great a height in 1833. The submission, by a just construction of it, was equivalent to an express declaration by E. H. Abel, that the defendant had a right to raise his dam to the height it was in 1833. Roe v. Jerome, 18 Conn. R. 138. 153, Packard v. Sears, 6 Adol. & Ell. 469. (33 E. C. L. 115.) Gregg v. Wells, 10 Adol. & Ell. 90. (37 E. C. L. 54.) Watson's exrs. v. McLaren, 19 Wend. 557. 563. Dezell v. Odell,3 Hill, 216. Bushnell v. Church, 15 Conn. R. 406. 419, 20. Brown v. Wheeler, 17 Conn. R. 345. 353, 4. Shelton v. Alcox, 11 Conn. R. 240. Middletown Bank v. Jerome, 18 Conn. R. 44. Downs v. Cooper, 2 Adol. & Ell. N. S. 663, (42 E. C. L. 663.) Welland Canal Co. v. Hathaway, 8 Wend. 480. 483. Swartz v. Moore, 5 Serg. & Rawle, 257. & seq. Gosling v. Birnie, 7 Bing. 339. (20 E. C. L. 153.) Hawes v. Watson. 2 B. & Cress. 540. (9 E. C. L. 170.) Chapman v. Searle, 3 Pick. 38. Stephens v. Baird, 9 Cowen, 274. Wallis v. Truesdell, 6 Pick. 455. 11011 & ux. v. White, 3 Car, & Pa. 136. (14 E. C. L. 242.) It makes no differ. ence whether the misrepresentation proceeded from mistake or design. Doe d. Eyre v. Lambly, 2 Esp. R. 635. Lig-gins v. Inze, 7 Bing. 682. (20 E. C. L. 287.)
    Strong and Wait, contra,
    contended, 1. That the letter of J. O. Hopkins was not admissible in evidence. In the first place, this was mere hearsay as to the height of the dam then built, compared with the former dam. It related to no mark or bound, known by him, or then claimed to be the limit of the defendant's right. Secondly, Hopkins bad no such means of knowledge of the height of the dam as would make his declaration or hearsay evidence, more than that of any other individual called upon to express an opinion. Thirdly, this was hearsay post litem motam, and for that reason not admissible. 1 Greenl. Ev. 131. & seq.

      2. That the testimony of the arbitrators was properly admitted for the purpose for which it was offered; not to contradict or explain the submission, but to show what it really was, which was acted upon by them. The defendant having introduced the submission, with the clause as to the flash boards interlined, thus containing prima facie evidence of the alteration, upon the face of the instrument, and the arbitrators having testified, that according to their recollection and belief, this clause was not in the submission, when acted upon by them; to confirm this, they might properly testify, that they were not called upon to decide, and did not decide, as to any effect produced by the flash boards.
    3. That if this submission and award were genuine instruments, as shown on the trial, they constituted no estoppel; and the defendant had all the benefit of every presumption to be derived from them, short of this. There was neither submission nor award as to the height of the dam. As to this, the arbitrators had no authority to enquire; nor did the parties agree, except as the arbitrators were to enquire as to the effect of the flash boards alone. There was nothing to prevent the parties agreeing between themselves as to this, or referring it to other arbitrators.
   Ellsworth, J.

We think the paper signed by J. O. Hopkins, offered in evidence by the defendant, is clearly inadmissible. It is nothing more than the opinion of a deceased man, given three years after this dam was built, as to what was its height when built, he then being miller. And further, this opinion is drawn from Hopkins, by the defendant, some two years after the dispute commenced. The submission speaks of the dispute as existing in 1834, and the writing of Hopkins is dated January, 1836.

Doubtless, entries and admissions of deceased people are, in some cases, admissible. But the evidence now offered, does not belong to that class. Entries by persons since deceased, having full and peculiar means of knowledge, made at the time, in the regular course of business, in the usual and proper place and manner, especially, if in the discharge of one’s duty, are admissible to the jury, as a part of the res gesta. So admissions of a deceased man, made against his interest, or by an agent, constituting or qualifying the transaction enquired after, may go to the jury ; but the opinion of Hopkins has none of these qualities, nor is it accompanied with any of the safeguards of such evidence. It does not differ from the opinion or remark of any other person, deceased, w ho was acquainted with the subject matter in controversy.

We think the court did right in admitting the testimony of S. Abel and N, Huntington. The question was, whether the submission or paper signed by the parties submitting their differences to these arbitrators, was in its original form, or had been altered; and particularly, whether the words " boards to the height of ten inches," which appeared to be interlined, had not been added since the submssion and award. To prove that they had, the plaintiffs introduced the arbitrators, who testified, they had no knowledge or recollection that this interlineation was in the submission when they acted as arbitrators ;-tbat according to their recollection and belief, there was no question before them about an injury from flash boards; nor did they hear any thing about them from the parties, but arbitrated only upon the effects of the permanent dam. This testimony conduced to prove the fact for which it was offered.

Nor is there any force in the claim that this submission and award, if unaltered, constitute an estoppel upon the plaintiffs, or either of them, as to the height of the old dam. The claim made, is, that Elijah Abel and Elijah H. Abel, in that arbitration, submitted no claim for damages done, otherwise than by the "flash hoards," and therefore, the dam itself had not been raised too high in 1833, and the plaintiffs were estopped claiming it had been. A strange estoppel indeed, if the only question submitted was, the amount of injury done by " flash boards !" The award has not a single requisite of a legal estoppel. The jury were permitted to draw such inferences as they pleased from the omission, if there was any; but that did not make the proceeding an estoppel. At most, the height of the permanent dam was passed by, and not made the subject of award. The plaintiffs might not then have supposed the permanent dam had been raised ; or the parties might have agreed as to so much, and that matter might have been designedly omitted.

We do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to he granted.


author: Storrs, J. Ellsworth, J.

text:
    Whitaker against Williams.
    An assignment under the statute of 1828 against fraudulent conveyances, if not executed iii the manner therein prescribed, is utterly void as against creditors of the assignor ; but the want of any of the requisites prescribed by that act, would not invalidate it, nor prclude a couit of equity from reforming it, as against the assignor himself.
    Though where the owner of property stands by, and knowingly suffers a stranger to sell it, in his own name and as his own property, without objection ; and another person is thereby deluded into the purchase of it; the owner, by a just and salutary principle, is estopped to claim title afterwards to such property ; yet to render that principle applicable, the person to be estopped must have had knowledye of his rights; and it is an emential part of the principle itself that his conduct must have superinduwd the action of the purchaser
    Therefore, where A made an assignment of property for the benefit of his creditors under the statute of 1828, which was defective in an escential requisite; and the assignee, by order of the court of probate, and with the assent and approbation of A, sold, at public suction, such property to B; hut the assent and approbation of A were given under an erroneous view of his rights, the facts were equally well known to him and to B, and B was not thereby misled, or induced to act difihrently from what he otherwise would have done; C having afterwards attached the property as still the property of A, it was held, (list under these circumstances, and as the title claimed by B, was derived, not from A, bat from the assignee alone, the conduct of A regarding the sale to B, did not, by estoppel in pais, validate such sale, or vest a title in B; consequendy, C's attachment would hold the property. [Two judges dissenting.]
    This was scire-facias in a process of foreign attachment, demanding of the present defendant the amount of a judgment of the county court, rendered in that process, in the plaintiff's favour against George W. Clark. The defendant pleaded, that he was not the debtor of Clark; on which issue was joined. On this issue, the cause was tried, at Norwich, March term, 1849.

      New-London,

    July, 1849.
    The indebtedness which the plaintiff claimed as due from the defendant to Clark, consisted of a judgment of the superior court, rendered at its term in March, 1848, in a suit brought in the name of Clark against the defendant, for mutilating the model of a propeller ; the sums for which such judgment was rendered, being 75 dollars, damages, and 40 dollars, 38 cents, costs. The circumstances under which that suit was instituted and prosecuted, are correctly stated in a bill in chancery, brought by Edwin Gavit and others, against Horace Whitaker, (the present plaintiff,) Jedediah Williams, (the present defendant,) and said G. W. Clark, and determined, in this court, on a writ of error, July term, 1847. See Whitaker & al. v. Gavit & al. 18 Conn. R. 522, 3. The present scire-facias is the one mentioned in that case, (p. 523.) as then pending. It was agreed, that after the service of this scire-facias, the defendant had, pursuant to the statute, (p. 117, 18. § 234.) given notice to Gavit and others of the pendency of such suit against him, and requiring them, as they were the persons who claimed to be the owners and entitled to the benefit of said judgment, to defend him in this suit; and Gavit and others having given security, as by law required, had assumed upon themselves the defence of this cause.
    Upon the facts stated in the bill of Gavit & al. v. Whitaker & al., which were so found to be true, the court decided, that the plaintiff was not entitled to recover in this suit; and he thereupon moved for a new trial.

      E. Perkins, in support of the motion,
    contended, 1. That Gavit and others, the real defendants, had no legal title to the debt sought to be recovered by this scire-facias; the legal title being in G. W. Clark, in whose name the judgment was recovered.
    2. That they had no equitable title. Whitaker & al. v. Gavit & al. in err. 18 Conn. R. 522. The judgment in that case is between the same parties as in this, on the same facts and concerning the same subject matter, and by a court having conclusive jurisdiction over both the subject matter and the parties. That judgment is an estoppel to any further litigation between these parties on the subject matter involved therein. The record of the bill and decree of the superior court, in that case, constitutes the special finding of the facts in this. All that the bill alleged, in that case, was, that the plaintiffs had an equitable title to this judgment. The only question decided, was, that they had no such title as against this plaintiff.
    3. That there was no error in the former judgment between these parties. The real defendants pretend no title, except one derived from G. M. Eaton, the trustee, substituted, by the court of probate, for E. Chappell, who had declined. But no title was conveyed to the trustee, and the court of probate had no jurisdiction over the matter, because there was no assignment of the property in question, in writing. Stat. 363. § 66. The assignment being by parol and in trust for creditors, is, under our statute, as against the creditors of the assignor, to “ be deemed and adjudged fraudulent and utterly void.” The plaintiff was a creditor of Clark, at the time of the assignment. Clark’s assent to and approbation of the sale, by Eaton, as such trustee, and the purchase by Gavit and others, whatever may be the effect thereof, as against Clark and Eaton, cannot affect the creditors of Clark. His assent to and approbation of the acts of Eaton, under this fraudulent conveyance, are but a persistence in the original fraud.

      Strong and Rockwell, contra,
    contended, 1. That the purchase of the claim against Williams for the mutilation of the model, was a valid purchase, so far as G. W. Clark was concerned, and binding on him. In the first place, the court find, that Clark, in his original assignment for the benefit of his creditors, designed and intended that this claim should be included and conveyed to the trustee. Secondly, it is expressly found, that the sale at auction by the trustee, was made, not only by order of the court of probate, but with the assent and approbation of Clark. Thirdly, Clark, under these circumstances, could not deny the right of the purchasers, or set up any claim in himself, or controvert the validity of the assignment; but would be forever estopped from so doing. Brown v. Wheeler, 17 Conn. R. 345. 353, 4.
      Roe v. Jerome, 18 Conn. R. 138, 153. Bushnell v. Church, 15 Conn. R. 419. Pickard v. Sears, 8 Adol. & Ell. 469. (33 E. C. L. 115.) Gregg v. Wells, 10 Adol. & Ell. 90. (37 E. C. L. 54. 58 ) Welland Canal Company v. Hathaway, 8 Wend. 480. 483. Davison v. Franklin, 1 B. & Adol. 142. (20 E. C. L. 363.)
    2. That Whitaker, the present plaintiff, stands on no higher ground than Clark; and if the assignment is good against Clark, it is equally valid against Whitaker. He had knowledge of the whole transaction. And not only this, but it also appears, that there was an unlawful purpose-an “an unjust design”-on his part,  To allow him to succeed now, would operate as a gross fraud upon the purchasers of this claim, who, after purchasing it and prosecuting it at great expence, would be deprived of the benefit of it, by the man who had contested their claim,  and who, after it is established, seeks to appropriate the fruits of the judgment to an old debt of Clark to him.

       See 18 Conn. R. 523. where the statement is abridged from the record ; the purposes of that case not requiring a fuller statement. In the bill then before the court-the averments of which were found to be true-it was averred, that Whitaker prayed out his writ of scire-facias, with the unjust design thereby to deprive the purchasers of the claim of the benefit of the judgment, which they had recovered, in the name of Clark, against Williams,

       Here again allusion is made to a fact stated in the bill of Gavit & al. v. Whitaker & al., which does not appear in the concise statement in 18 Conn. R. 522, 3. viz. that Whitaker had united with and assisted Williams, in the suit brought by Gavit and others, in the name of Clark, against him, Williams.

   Storrs, J.

The question presented in this case, is, whether the plaintiff, as against Gavit and his associates, is equitably entitled to the money due on the judgment recovered in favour of Clark against the defendant.

This court decided, in Whitaker v. Gavit & al. 18 Conn. R. 522. that, as the claim for which that judgment was rendered, was not in any manner described in the assignment made by Clark to Chappel, then in question, (which is the same assignment mentioned in the record in evidence in this suit,) although it was intended and agreed by Clark, that it should be included therein and conveyed to the trustee, and was omitted so to be embraced, by mistake of the draftsman, such claim could not in equity, as to the creditors of Clark, of whom the defendant in that suit and the plaintiff in this was one, be deemed to be a conveyance to the trustee ; that the court of probate, therefore, had no jurisdiction over it; and that no equitable title to the claim passed thereby to the trustee, nor consequently, to Gavit and company, the plaintiffs in that suit, who had purchased it from him. We held, that as the statute of 1828 against fraudulent conveyances, expressly required that assignment, in order to be, valid against them, to be in writing and lodged for record in the probate office, the ordinary principles which are adopted in chancery, as to the correction and reformation of mistakes in instruments, did not apply to the case ; and on that ground, refused to reform that assignment according to the intention of Clark, or to enjoin the plaintiff in the present case from prosecuting this suit.

That act, in terms, makes all assignments of property contemplated by it, if not executed in the manner therein prescribed, fraudulent and utterly void as against the creditors of the assignor. It does not, however, affect the validity of conveyances as between the parties to them, but leaves them, in this respect, as they were at the common law : and therefore, such conveyances, notwithstanding they should not be in writing, or want any of the other requisites prescribed by that act, would not be invalidated by it, as against the assignor. And if, as to him, it should become necessary to reform the instrument of conveyance in consequence of a mistake attending its execution, the ordinary principles on which such relief is granted, by courts of equity, would apply. But such relief would not be granted against his creditors, for the obvious reason, that as to them, the instrument is rendered fraudulent and void. They would claim against, and not under, the instrument.

If therefore the only title of Gavit and company to the claim in question, is derived from a sale thereof from the trustee of Clark under the assignment, although it might be good as to Clark, it would be void as to the plaintiff, who claims here as his creditor, by an attachment of it; because, as against him, the trustee acquired no title to the claim, by the assignment.

There was no evidence, on the trial of the cause, to prove, nor is it claimed by the counsel for the defendant, that, there was any direct transfer made, or attempted to be made, by Clark to Gavit and company, of the claim in question against the defendant. If, independent of the assignment, there had been such a transfer, it would have vested in Gavit and company a valid title to the claim, not only as against Clark, but also as to the plaintiff, although the transfer of it were not in writing, if the nature of the property was such that it could be conveyed without writing ; because, as it would not be a conveyance in trust, the statute of 1828 would not, neither would the common law, require a written conveyance. The evidence, however, shews only that Clark assented to and approved of the sale of the claim made by the trustee to Gavit and company, which was professedly made by the trustee only, under and by virtue of the power, authority and interest vested in him as such trustee, and by virtue of the orders of the court of probate, authorizing him thereto ; and that the suit was instituted, by Gavit and company, as the owners of the claim, against Williams, for the recovery of the claim, in the name of Clark, (in whose name only the suit could be brought,) with Clark’s knowledge and consent.

The defendant, however, claims, that, conceding that no title to the claim passed to Gavit and company, through the assignment, or by reason of any direct transfer of it to him by Clark, the assent and approbation of Clark to the sale of it by the trustee, to Gavit and company, and his consent to the suit brought to recover it, operated as an estoppel against Clark, and had the effect of precluding him from disputing the validity of the sale, or denying that the trustee had power to transfer it; and that the plaintiff, not having attached it until after such sale, is in no better condition than Clark to dispute the sale. It is insisted, that the case is within the principle on which a sale of property is held valid against the true owner, where he stands by and knowingly suffers a stranger to sell it, in his own name, as his own property, without objection; where the silence of the owner and concealment of his title are deemed equivalent to an assertion, that he has no claim to the property ; and it would be a fraud on the purchaser, to permit the owner to delude him into the purchase, and afterwards defeat the right which the purchaser supposed he had acquired under it. We have often had occasion to recognize and apply this principle as one of a most just and salutary character. Brown v. Wheeler, 17 Conn. R. 345. Kinney v. Farns-worth, Id. 355. Roe v. Jerome, 18 Conn. R. 138. Noyes v. Ward, 19 Conn. R. 250. Greenl. Ev. 267. and cases cited.

But we think that it is not applicable to the case now before us. The doctrine that one shall not be permitted to retract representations, in which is included conduct, by which he has induced another to adopt a particular course of action; supposes, and is to be understood with, the qualification, which is indeed a part of the principle itself, that the one by whom such representations were made, had a knowledge of his rights. In laying down this qualification, we speak of the principle generally, and would not be understood to say, that there may not be cases where there is such culpability on the part of the person making such representations, or such particular circumstances or consequences attending them, that he would not be permitted to set up the want of such knowledge. But the present case falls within no such exception.

The principle which constitutes such representations an estoppel in pais, also requires that the action of the other party took place on the strength of them, and was super-induced by them ; because otherwise, he could not be misled or injured in consequence of them.

If, in the present case, Clark, being aware that Eaton had acquired no right or title to the claim in question, by the assignment or otherwise, by his declarations, or by his assent to a sale of it to Gavit and company, induced the latter to believe that the title to the claim was in Eaton, and to purchase it of him under that belief, we should have no doubt that it would not be competent for Clark, or the plaintiff, claiming by any subsequent title under him, to deny the validity of such sale ; but the evidence shows no such state of facts. From the bill and decree, which constituted the only evidence on the trial, the allegations in which bill are found true in the decree, it appears, that the trustee of Clark claimed no power, authority or interest in or respecting said claim, excepting such as was vested, or supposed to be vested, in him, by the assignment executed by Clark, and the circumstances attending it, and the orders of the court of probate exercising its jurisdiction over that assignment and the property conveyed by it, under the statute which has been adverted to ; that it was by virtue of such authority and interest alone, that said trustee intended or professed to sell said claim to Gavit and company ; that the latter, when such sale was made, had knowledge of the provisions of the assignment, and of all the proceedings under it in the court of probate, and also knew that the sale was made, and intended to be made, solely by virtue of the authority and interest derived by the trustee from them ; that, in their purchase, they looked to no other source of title ; and that, so far from believing that the title to said claim was in Clark, at the time of such sale, they believed that his title to it was divested by the assignment, and vested in the trustee; and that the latter only had authority to dispose of it. The only title of Gavit and company alleged in that bill, was one derived, not directly from Clark, but from Eaton, as his trustee under the assignment ; and the ground set up in the bill for establishing that title, was, that it was the intention to have the claim embraced in the assignment, and its omission by mistake, on which it was claimed that the instrument should be reformed according to such intention. The correction of that mistake would, of course, have been made, on the ground that the title in equity was in the trustee, and not in Clark. It did not occur to the counsel for the plaintiffs in that case, to set up a title directly from Clark, or that his conduct operated as an estoppel against him, or the plaintiff in this case, by which either of them was precluded from asserting that the title to the claim was in Clark, when it was sold by the trustee. Indeed, it is alleged in that bill, after stating the sale by the trustee, by virtue of the authority and interest vested in him, by the assignment and the orders of the court of probate, and the purchase by the defendants, that the plaintiffs in that case, (Gavit and company,) "thus became the purchasers of said claim, and in equity entitled to have and receive the damages for which said Williams was liable to said Clark" thereon-unless, from the manner in which it is also, in connexion with that statement, alleged, that the sale was with the assent and approbation of Clark, the construction of the whole averment should be, that such assent and approbation constitute in part the title which they claimed. We do not, however, think, from the manner in which the allegation of such assent and approbation was introduced, that it was designed, or should be construed to mean, that the title of those plaintiffs was founded upon it, or strengthened by it. Such a construction would be opposed to the general frame and character of the bill, and would place the title of the plaintiffs therein to the claim on a very different ground from the one intended to be set up in it: and indeed, if it is to be considered as a bill seeking relief on the ground of declarations or conduct on the part of Clark, which created an estoppel against the assertion of his title, it would plainly be insufficient. For, although it alleges such assent and approbation by him, it omits to state, either that the title to the claim, at the time of the sale, was in Clark; or that he knew or supposed that it was in himself; or that the plaintiffs were induced to believe, by his said conduct, that the trustee had a title to said claim, or was authorized by Clark, otherwise than through the assignment, to dispose of it; or indeed, that they did so believe. If, on that bill, the court in its finding had negatived the allegations as to the intention with which the assignment was executed, and the mistake of the draftsman in omitting to insert the claim in it, and had found the other allegations to be true, including the assent and approbation of Clark to the sale, as stated in the bill, it would hardly be claimed, that any ground for relief would be furnished by such a finding. Nor would relief have been granted on that bill, if the court had found the further facts, that Clark, when said sale took place, knew that the title to the claim was in him, and by his said conduct induced the purchasers to believe that it was in the trustee; for the obvious reason that those material facts were not alleged in the bill. For the same reason, the decree is not evidence of those facts. The existence of them, consequently, is not proved.

This then is a case, where, whatever may have been the representations of Clark, they must be deemed to have been made by him under an erroneous view of his rights, or at least without any fraudulent or improper motive; and where, moreover, the facts, as they really existed, were known equally to him and to the purchasers of the claim in question ; and the latter have not been misled, or induced by those representations to act differently in any respect from what they otherwise would have done. Nor can it justly be claimed, that the plaintiff in this case has done anything which destroys or impairs his right to the money due on the claim in question, as a creditor of Clark. The circumstance that he united with and assisted the defendant, in defending the suit brought against the latter, in the name of Clark, has no such effect; nor does it appear, that the money received by the trustee on the sale of the claim, or any part thereof, has ever been paid by him to or received by the plaintiff', or any of the other creditors of Clark. This is a very important fact in the case. That it cannot be recovered of said trustee, by those creditors, or for their benefit, as trust funds; received under the assignment, results from our decision in the case of Whitaker v. Gavit and others. Under these circumstances, to hold that what was done by Clark, when the claim in question was attempted to be sold by the trustee, precludes the enquiry whether the former was the owner of it, would, in our judgment, be a misapplication of the principle on which estoppels in pais are deemed to be created by the representations or conduct of parties. No case has been found which carries the doctrine on that subject to such an extravagant length ; and to do so it this case, would give to the defendants an advantage from what was done by Clark, which, so far as it appears, they never expected, and which, on principles of justice, they are not entitled to.

A new trial is therefore advised.

In this opinion Church, Ch. J., and Hinman, J., concurred.

Ellsworth, J.

The result to which a majority of the court have come, in this case, seems to me, to be exceedingly unjust towards Gavit and others, the real defendants. I think a different view may consistently be taken, more satisfactory and more in accordance with principles and justice and equity. The defendants have confessedly bought the debt in question fairly, and have paid the price agreed ; and this has been done with the consent and active cooperation of Clark, who owned it. If, after this, Clark, or any one possessing his rights only, can wrest this debt from the purchasers, it must be for reasons which I cannot discover.

This being a writ of scire-facias, to obtain a debt due to G. W. Clark, by process of foreign attachment, it is obvious that the plaintiff cannot recover, unless he has acquired a good legal and equitable title to the debt. Gavit & al. claim, that they are purchasers of the debt, and can retain it against Clark and his representative, Whitaker. If they have the right, there is no doubt they can, in the name of the nominal defendant, prevent the recovery. The Hartford Bank v. Barber, 9 Conn. R. 407.

When this case was before us, on a former occasion, (18 Conn. R. 522.,) the court decided, that the assignment of Clark could not be amended or enlarged so as to include this claim : and as it was confessedly not in the writing, the court held, they could not place it there, nor treat the claim as if it were there. That case did not settle the question now raised for decision indeed, at the close of the opinion there given, it is said, that if Gavit & al, are entitled to the debt, they have relief in this action at law. In consequence of that remark, perhaps, the ease comes before us in the present shape.

It must be agreed, that at the time, when Eaton, the trustee, sold the property which he held as assignee, Clark could have sold the claim on Williams to the defendants; for as it was not in the assignment, (though he intended and believed it was,) he had the entire interest in and controul over it, as much as if he had made no assignment at all. He could sell this claim as well as any thing else he had not assigned, provided he did it bona fide and for a valuable consideration. After that, no creditor of his could take it from the purchaser, because no creditor could acquire a right which Clark did not possess himself. I know it was said in the argument, that a sale by Clark, if made cotemporane-ously with the general sale by Eaton, would be void against the creditors of Clark, because of the statute of 1828. But the objection is unintelligible and misapplied. Title to the claim does not come through Eaton, nor through the assignment; and therefore, that assignment has nothing to do with the claim, and cannot defeat a fair subsequent or cotempora-neous sale.

The single question is, did Gavit & al. acquire a right to the claim as against Clark, by what took place on that occasion ? The counsel for Whitaker gave up this point, as too plain for controversy, and only insisted, that the sale was void as to Clark’s creditors, by reason of the statute of 1828; which latter ground, I have shown, has no existence in the premises. The court, if I understand them aright, place their opinion upon the want of a sale by Clark ; and consider the former ground as untenable, and inappropriate. To the true point, then, let us turn our attention.

It is agreed, that the real defendants bought the claim at public action, and paid the money, which has gone towards the indebtedness of Clark ; that this was done with the consent and approbation of Clark; that afterwards, with his assent and understanding, in order that the claim, (which was then very imperfect,) might be brought to maturity, the defendants, in the name of Clark, brought a suit and recovered judgment, at an expense exceeding the amount of the damages recovered; of which Whitaker had notice. Here now, we have a sale actually made, by the desire and cooperation of the owner, and afterwards, the purchasers, relying on their title, bestowing their labour and money to make the purchased property of value. If this does not vest the original claim in the real defendants, and forever estop Clark, I have studied the principles of law and justice to no purpose. What if Clark did suppose the claim was in the assignment, while in fact it is not; he certainly meant to have it sold ; and it was sold and the money applied. The fact that Clark mistook the extent of the assignment, is nothing to the purpose. The defendants are not to be prejudiced by his misapprehension. They are innocent of any error, and have confided where they might with propriety place confidence, and where Clark cannot be permitted to question their act. Nor is the mistake of Clark of the least moment to him. He meant to have the claim sold and transferred: it was sold, and he had the benefit of it. Now, after this, to permit him to come in, and take this claim and the costs too, to which latter he never had the shadow of a right, is too flagrantly unjust to be tolerated in a court of justice, one moment.

The doctrine of estoppel in pais, growing out of the declarations and conduct of persons in peculiar circumstances, or rather, growing out of the application of principles of justice, and honour and sound morality, to the conduct of mankind, has recently been too fully discussed and recognized in the cases of Roe v. Jerome and Middletown Bank v. Jerome, in 18 Conn. R., and in East-Haddam Bank v. Shailor, of the present term,(ante, p. 18,)to be enlarged upon at this time. Those cases and the numerous ones referred to in them, fully sustain the principle so accurately laid down by Judge Story, in his Agency, S91. "It is clearly established," he remarks, "that if ihe true owner of property stands by, and knowingly suffers a stranger to sell the same, in his own name, as his own property, without objection, the sale will be valid against the true owner. For, under such circumstances, his silence and concealment of his title are treated as equivalent to an affirmation that he has no adverse title to the property; and it would be a gross fraud upon the purchaser, to allow the true owner thus to delude him into the purchase, and afterwards defeat the supposed rights acquired under it ;" or, in the emphatic words of Tindal, Ch. J., in Gosling v. Birnie, 7 Bing. 339. (20 E. C. L. 153.) The defendant is estopped, by his own admissions; for unless they amount to an estoppel, the word may as well be blotted from the law. In the strong language of Lord Denman, in Pickard v. Scars, 6 Ad. & El. 479., "the rule of law is clear, that when one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter, a different state of things as existing at the same time."

This subject was very clearly illustrated, by Mr. Justice Bayley, in delivering the opinion of the court in Keane Rogers, 9 B. & C. 577. 588. (17 E. C. L. 449,) It was an action of trover, brought by a person against whom a commission of bankruptcy had issued, against his assignees, to recover the value of goods, which, as assignees, they had sold ; and it appeared, that he had assisted the assignees, by giving directions as to the sale of the goods. He was estopped disputing the commission. See Clark v. Clark, 6 Esp. R. 61. Like v. Howe, 6 Esp. R. 20, Watson v. Wace, 5 B. & C. 153. (11 E. C. L. 153.) Welland Canal Co. v. Hathaway. 8 Wend. 483. Jennings v. Whitaker, 4 Munroe, 50. Grant v. Jackson, Peake's Gas. 203. Ash-more v. Hardy, 7 Car. & Pa. 501. (32 E. C. L. 601.) In these cases, the doctrine of estoppel is sanctioned and asserted, as I claim it to be ; and it is unhesitatingly applied to cases less marked than the present one.

I do not advise a new trial.

In this opinion WAITE, J., concurred.