author: Ellsworth, J.

text:
    Malleable Iron Works vs. Phœnix Insurance Company.
    An agent of an insurance company, authorized to procure applications for insurance, and furnished by the company with printed blanks therefor, containing interrogatories to be answered by the applicant, with regard to the condition of the property to be insured, has, as incidental to such power, authority to make all necessary explanations of the meaning and effect of the terms employed by the company in their interrogatories, and to agree with the applicant as to the terms which he shall employ, to express the facts stated by him in answer to the interrogatories.
    Therefore, where such an agent, at the request of an applicant from whom he had solicited proposals for insurance, read to him the interrogatories and wrote in the application his answers, and while doing so, the question occurring, “ Is a watch kept on the premises during the night ?” the applicant answered “ No,” and then stated certain facts with regard to the employment of a man during part of the night, for most of the time, at an adjacent shop within the same enclosure, who would be likely to see if anything was wrong about the premises, upon which the agent remarked that he should consider the man to be a watchman till 12 o’clock, and the applicant remarking that he did not know how it would be considered, but would leave it to him, the agent wrote as the answer, “'Watchman till 12 o’clock;” which application was forwarded to the insurance company by the agent without explanation, and a policy issued upon it, the company receiving no notice until after the insured property was burned, that the fact was not as stated in the application, and the insured not knowing until then that the answer was objectionable; on a petition in chancery, to procure the correction of the application in the above statement, and praying that the insurance company be ordered to pay the amount of the loss, — it was held, that the relief prayed for ought to be granted. [The chief justice dissenting.]
    The agent, in filling out the application, having also inserted a statement that there was a watch-clock in the building, when in fact there was none, and the applicant had not so stated, but the agent supposing that a clock which he saw in the building was a watch-clock, so entered it without inquiry, the applicant being ignorant that such statement was contained in the application, until after the fire, — it was held, that the misstatement did not affect the ease, having been made purely by mistake, and having become wholly unimportant in the view taken by the court of the matter of the watchman.
    This was a petition in chancery, for the reformation of a contract of insurance, and praying for a decree that the respondents pay the sum of $>5,000, the amount of the insurance. The facts were found by a committee.
    The mistake in the contract was claimed to be in the answer to the 16th interrogatory of the application of the petitioners for insurance. The interrogatory was, Is a watch kept upon the premises during the night ? Is there a good watch-clock ? Is any other duty required of the watchman than watching for the safety of the premises ? Is the building left alone at any time after the watchman goes off duty in the morning, till he returns to his charge at evening?” The answer was, “ Watch on premises until 12 P. M. Watch-clock. Left from 12 P. M. to half past 5 A. M.”
    The application was signed by the petitioners, who stipulated therein that the answers to the interrogatories were “a just, full and true exposition of all the facts and circumstances in regard to the condition, situation and value of the property to be insured, so far as the same were known to the applicant and material to the risk.”
    There was in fact no watch-clock, and no watchman except a man employed to watch the furnaces in the annealing shop, a distinct building, but within the same enclosure, whose duty required him to be frequently, but not constantly, at and about the annealing shop, whenever the furnaces were kept up, (which was generally the case,) until 12 o’clock at night, and who, while so in attendance, would be likely to observe if anything was wrong about the premises.
    The building insured was burned within the term of the insurance, having taken fire about half past 10 o’clock at night. The watchman had left that evening at half past 7 o’clock, the furnaces not being kept up.
    The petitioners claimed that the incorrectness of the statement contained in the above answer, was owing wholly to the fault of one Houghton, the agent of the insurance company, who drafted all the answers contained in the application ; and that he was acting therein as the agent of the respondents, so far as to affect them by his acts in relation thereto.
    It was found on this point, that Houghton, previously to the 24th day of August, 1854, had applied to one Sturges, the agent of the petitioners, to have him procure an insurance on the property of the petitioners in the office of the respondents, and that some negotiations had been had between them on the subject; that on the day above mentioned, Houghton called at the establishment of the petitioners, with a printed form of application for insurance, containing numerous' interrogatories to be answered in writing by the petitioners, for the purpose of having the same filled out by Sturges; that Sturges told him that he was unacquainted with making out such applications, and that thereupon Houghton read the questions to him and wrote down his answers; that when completed it was hastily looked over by Sturges, who signed it and delivered it to Houghton for transmission to the office of the respondents at Hartford; that Houghton had several times examined and made surveys of the premises with a view to insure them, and was well acquainted with the situation and occupants of the same, and with the business carried on by the petitioners and their tenants in the various buildings on the premises; that Houghton, when writing the answers in the application, read aloud to Sturges the question, “ Is a watch kept upon the premises during the night;” to which Sturges replied, “No,” which answer was written down by Houghton; that Sturges then added, “We have a man who watches our annealing premises, and his duty requires him to be there from 9 o’clock at night to 12 o’clock at night, but not all the time; but during those hours he must come in; he is not a watchman for the building, but would be likely to see if anything is wrong about the buildings, and when the furnaces are run, he is obliged tobe there;” that Houghton then observed that he should consider that this man was a watchman until 12 o’clock; that Sturges replied that he did not know how it would be considered, and would leave the matter to Houghton; that in consequence of this conversation, Houghton erased the word “ No,” from the answer, and wrote instead the words, “ Watchman on premises till 12 o’clock,” and as an answer to the last clause in the question, the words “ from 12 P. M. to half past 5 A. M,;” that Houghton intended thereby to state substantially the representations of Sturges; that he did not read to Sturges that part of the question which relates to a watch-clock, but wrote the word, “ watch-clock,” in the application of his own accord, and from mistake and misapprehension, supposing that a clock which he saw in the building, having the dial and form of a watch, was a watch-clock within the meaning of the question ; that said application was not pursued by the petitioners, who gave notice to Houghton of their abandonment of it, before the policy was received by him from the respondents; but that the negotiations were resumed about a month after, when Houghton made out a new application in his own office, copying the answers contained in the former application, which he carried to Sturges, who looked it over hastily, signed it, and returned it to him, and upon which the policy in question was immediately afterward issued to the petitioners by the respondents, bearing date the 27th day of September, 1854.
    With regard to Houghton’s authority, it was found that he had been appointed by the respondents, their agent to receive and forward applications for insurance, and to make contracts of insurance for the term of ten days, and that the respondents had placed in his hands blank printed forms of application for insurance of the same kind with those filled out by him for the petitioners. It was also found that he had advertised in a weekly newspaper in Bridgeport, as the agent of the respondents, though there was no evidence that the respondents knew of the fact. Also that it was his general practice to fill out the blank forms of application, for parties applying for insurance, by writing therein the answers which they gave him orally.
    It was also found that the answer in question was inserted in both the applications, without any intent to misrepresent the facts, on the part of either Houghton or Sturges, and that the statement with regard to the watch-clock was not known or supposed by the petitioners or by Sturges to be in the application, until after the fire had occurred ; that Sturges knew at the time of signing both the applications, that the answer “watchman until 12 o’clock,” was contained in both, but was misled as to the effect of the language, by the statement of Houghton, and his confidence in his knowledge on the subject, and that neither the petitioners nor Sturges were aware of this misapprehension until after the fire occurred.
    The case came to the superior court, holden in the county of Fairfield, in October, 1856, when it was reserved for the advice of this court.

      Dutton and Sturges, for petitioners.
    The mistake is expressly found to have been unintentional on both sides. It may therefore be corrected, so that the application shall contain the precise representation actually made. There could be no question on this point, if the officers of the insurance company had been acting in the matter instead of Houghton. 2 Root, 1. 22 Conn., 235, 247. 2 John. Cha , 585, 8. 17 Conn., 556. 18 ib., 101. 13 How., 57. 1 Sto. Eq. Jur., secs. 152, 158. 12 Eng. Law & Eq. R., 171. 1 Paige, 278.
    The precise facts were known to Houghton, and notice to him was notice to his principal. 5 Hill, 101. 13 N. Hamp., 145. 3 Story, 659. Story on Ag., sec. 140. 11 Barb. Sup. Ct., 624. Ang. & Ames on Corp., sec. 305. 27 Eng. Law & Eq. R., 140. 22 Conn., 575.
    The petitioners, in their application, stipulated only that the representations were true so far as the facts were known by them and material to the risk. Houghton had power, as agent of the respondents, to draft the application, and his mistake is therefore their mistake. He had also necessarily some discretionary power to agree with applicants as to how certain terms in their answers should be understood, and how certain facts should be stated; so that his representations and stipulations are those of the respondents. It was within the scope of his authority to advertise his agency, and the respondents would expect him to do so, and are therefore to be presumed to have assented to his advertisement, although they may never have seen it or had actual knowledge what it was. And as he advertised as agent, with no qualification, he is presumed to have intended a general agency. Where an agency is proved, the law always presumes a general agency. 12 Ad. & El. N. S., 856. Sto. on Ag., sec. 127. 33 Maine, 169.
    The respondents knew that Houghton was accustomed to fill up applications for persons desiring insurance, and accepted from him applications so filled up. By permitting this, they authorized it. 4 Cow., 645, 660. Sto. Ag., sec. 80, 250. 2 Denio, 246. 1 Met., 193. 23 Wend., 18, 260. 5 Foster, 169.
    If the mistake can be corrected, it is not necessary to the right of recovery that the statement made by the petitioners’ agent should have been entirely true, so long as no misrepresentation was intended. It was not material to the risk, and therefore not a warranty. 14 Eng. Law & Eq., 524. 3 Comst., 122.
    If the court sustains the bill for any purpose, it will grant complete relief. 1 Sto. Eq. Jur., sec. 75. 3 Conn., 135. 7 Conn., 543. 9 How., 390.

      Hawley and W. D. Shipman, for respondents.
    In order to entitle a party to the reformation of a written instrument, by supplying an alleged omitted part, the omitted portion must be material to the contract, and clearly proved to have been definitely agreed upon by the parties at the time of making the contract. Motteux v. London Ass. Co., 1 Atk., 545. Henkle v. Royal Exch. Ass. Co., 1 Ves., 317. Lyman v. U. S. Ins. Co., 2 Johns. Ch., 630. Lyman v. Boston and Marine Ins. Co., 2 Cranch, 419. Andrews et al. v. Essex Fire and Marine Ins. Co., 3 Mason, 6.
    In this case, no fact whatever was omitted by mistake. It is expressly found that the agent of the petitioners, as well as the agent of the defendants, knew that the words “ watch on the premises till 12 P. M.,” were in the application.
    The conversation which passed between the agent of the plaintiffs and the agent of the defendants, prior to the signing of the application, was not intended to be any part of the latter. It furnishes no certain rule by which the court can be guided in rectifying the contract. The most that can be claimed, is that the agent supposed an absurd construction, contrary to the fact stated in the answer, might be put upon the answer itself. No case can be found that would justify a court of equity in changing an instrument, to meet the vague and uncertain notions which parties might entertain at the time of executing it, as to the construction of its plain and simple provisions. Infinite mischief would follow the establishment of such a doctrine. Shelburne v. Inchiquin, 1 Br. Ch. Ca., 388, 357. Paley on Agency, 203.
    A party seeking to reform a written instrument, on the ground of mistake, must show that it did not occur through gross negligence on his part. 1 Bto. Eq. Jur., see. 105.
    The written answers alone were the basis of the contract, and nothing was in contemplation by either party, when it was made, except what appeared in the application itself. The respondents, in deciding to insure the property, acted wholly on the application itself, and in ignorance of any representations of Houghton as to the meaning of the terms employed by the petitioners, and in ignorance of all facts pertaining to the matter, not stated in the application.
    Houghton was a special and not a general agent. This appears from the finding. He was the defendants’ agent to receive and transmit the proposals of the applicant. He was not their agent to dictate, construe, or write the answers of the plaintiffs. Story on Agency, secs. 17, 18.
    Houghton having no power to fix the terms or construe the meaning of this contract, any declarations, representations or knowledge of his, can not affect the defendants. Paley on Agency, 194, 204. Story on Agency, secs. 127, 133, 135. Schimmelpennich v. Bryan, 1 Pet., 264. Fenn v. Harrison, 3 T. R., 757.
    Buffif this application is amended, it is difficult to see how the petitioners can recover, as they have not kept their engagement as they understood it.
   Ellsworth, J.

The petitioners ask, by their bill, that the superior court will reform a certain policy of insurance, and order the respondents to pay $5,000, which they say is due them, for the loss of their iron works. The error which the court is asked to correct, consists in the answer, as it now stands, to the 16th interrogatory in the proposals. That answer says that there was a watch upon the premises until 12 o’clock, P. M., and likewise a watch-clock. This answer, or one just like it, we held in the late case of the Glendale Woolen Company, 21 Conn., 19, (being expressly made a part of the policy,) to be in the nature of a warranty, and that, if untrue, it would render the policy void. Fearing this result at law in a suit on the policy as it now reads, the petitioners seek a correction and reformation of this part of the policy. They say the policy is incorrect, inasmuch as it does not express the contract as it was made ; that the answer in question was not given as it was written and is now understood, and that such was the course pursued by the agent of the respondents, at the time, that the petitioners ought not to be injured by the mistake, and the respondents ought not to object to the correction.

On the one hand, it is insisted that the insurance company have made no other contract of insurance than the one in writing, and if Houghton, their agent in Bridgeport, has made another and different one, he made it for himself, and had no authority to make it for the company. On the other hand, it is insisted that Houghton was the general agent of the company for all the purposes of insurance in Bridgeport, and could bind the company in the premises as fully as any general agent whatever; and that, at any rate, if he was clothed with only a limited authority to bind the company, such limitation can not affect third persons like themselves, who, without any knowledge of such limitation, have obtained insurance through such agent.

These respective claims have led counsel to examine many cases in the books, upon the point to what extent insurance agents abroad can be held to represent the companies for which they act; when they bind their principals, and when they only bind themselves. Here is a field of wide extent for doubt and litigation, and many cases may be found illustrating the rule as it is claimed on the one side and on the other; and yet, after all, this case resolves itself into a question of fact more than of law, as is established and very well illustrated in the case of Sheldon et al v. The Hartford Insurance Company, 22 Conn., 235, and the case of Boughton v. The A. M. L. Ins. Co., tried on the present circuit at New Haven.

The court do not deem it important to travel over this entire field, since a majority of us are satisfied, taking the facts as they are found, that Houghton did, in this instance, sufficiently represent the company, when he obtained proposals from the. petitioners and remitted them to his principals at Hartford, to bind them, by his agreement or explanations given at the time. Dunlop’s Paley on Agency, 11*2, 200. Sandford v. Handy, 23 Wend., 260. Nelson v. Cowing, 6 Hill, 336. Story on Agency, sec. 134 Devendorf v. Beardsley, 23 Barb., 660.

It is found that, about the first day of July, 1854, the insurance company appointed Houghton to be their agent, with power, among other things, to receive and forward applications for insurance, and for that purpose they furnished him with printed blank proposals, of which the present is one, containing the proper questions to be answered by the applicant. With this list of interrogatories Houghton applied to Mr. Sturges, the petitioners’ manager and agent, to induce him to get his company’s works insured in the office of the respondents. In reading the interrogatories over to Mr. Sturges, when he came to the 16th, Mr. Sturges replied, “ No watch on the premises,” and it was so entered by Mr. Houghton. Soon after, Mr. Sturges added, “ We have a man who watches our annealing premises, and his duty requires him to be there at night from nine o’clock to twelve, but not all the time; but during these hours he must come in; he is not a watchman for the building, but will be likely to see if anything is wrong about the buildings, and when the furnaces are run, he is obliged to be there.” Upon this, Houghton observed that he should consider that this man was a watchman until twelve o’clock, and Sturges replied, “ he did not know how it would be considered, that he left the matter to Houghton,” who thereupon erased the word “No,” and wrote “ Watchman on the premises till twelve o’clock.” We think this interpretation or conclusion, if not an agreement by Houghton, (it being an essential part of the proposals and the very ground-work of the insurance to be obtained,) was within the authority given to him as the respondents’ agent, when he was intrusted with those printed blanks, in order to perfect applications for insurance. He was expected to make use of just this list of questions, and to give to the applicant for insurance any necessary information or explanation touching the meaning of the proposals. The questions on this paper are very numerous and somewhat indefinite, and to answer them intelligently and fairly must often require some information and preliminary understanding. We think there must be an incidental power in the agent, adequate to the explanation of the description of property which is to be insured, or the meaning of words and phrases, and the application of answers to the subject matter. We do not say that an insurance agent is of course a general agent with no limitation, but only that he is, in certain cases, clothed with an incidental power to perfect that which is committed to his care’. The agent was to obtain and forward a perfect application. It was within the sphere of his duty to explain the questions and decide for himself and the bona fide applicant, what was a satisfactory answer, and how the answer should be applied to the subject. In such a case, the agent can not be said to make the insurance himself, but his principals do it at the home office, obtaining only through him the necessary information. Suppose the secretary of the company had visited Bridgeport to solicit insurance, and among others had called on Mr. Sturges, and handed him these questions to be answered, and having made himself familiar with the premises of the petitioners, had agreed that the man who watches the annealing shop should be considered and held a watch on the premises until twelve o’clock, and had himself explained and filled out the proposals as Houghton did, — would not the company be concluded ? We think they would.

Let us examine and see, if in all fairness and justice, a local agent is not clothed with such incidental power. The 14th question is, “ How are the several stories occupied ? ” A full and exact answer to this question might require a lengthy and complex recital of facts. Can not the agent agree to an abridged answer, which shall be held to be sufficient? In answering some of the interrogatories in the paper, it may not be easy to state exactly what the facts are, and how they would be understood if answered. In order to get the risk, may not the agent explain, and agree how the thing shall be considered to be, keeping always within the limits of the power which he is to exercise ? The 17th question is, “ Are there casks in each loft?” may not the agent explain this as equivalent to tubs and cisterns ? The 18th question is, “ Is smoking or drinking of spiritous liquors allowed on the premises?” Now what are the premises exactly? Can not the agent agree how it shall be considered, or must this be left an open question, or no insurance be had, without the hazard of a law-suit, ? The 19th question is, Are the buildings and machinery both owned by the applicant, and is there any other person interested in the property?” These questions are, sometimes, not so easily answered of a certainty. May not the agent agree what, on the whole, is a satisfactory answer to them ? The same may be said of several other questions. If agents, who are furnished with exact and printed blanks, are not to be allowed to say a word by way of information or explanation, when fairly and honestly attending to their appropriate business, which shall attach to the contract of insurance and bind the company, there is great danger that injustice will be done to the honest and confiding applicant; and the sooner it is known that the agent only is bound in such instances, the better for the community. Here, the question was, what was to be understood by the answer, “ a watch on the premises.” The facts were truly stated to the agent, who was appealed to to say how these facts should be considered, and he decided that they amounted to a watch, or should be held to be so ; and now in fairness and justice the company should be bound by that conclusion of Mr. Houghton.

As to the watch-clock, it is found, strange as it may seem, that when Mr. Houghton read to Mr. Sturges the 16th question, he did not read anything about the clock, but that Mr. Houghton put that answer in himself, because he saw a clock of that character, as he thought, standing in the room. Assuming this, then, we pass over this part of the answer as comparatively unimportant, for we do not perceive that it was made a part of the proposal for insurance, except by sheer mistake, and at best is not material if the matter of the watch itself is to be held as we have stated.

We are persuaded that not unfrequently insurance companies are sufferers from carelessness, unfairness and craft on the part of the insured, and there may well be jealousy and distrust, when it is asked to reform the contract after the loss has taken place. Were we investigating the alleged mistake ourselves, we should proceed with much caution, and require clear and ample evidence before we should yield assent in such a case. But a case may be made out. We know mistakes do occur which are not discovered until there is an occasion to seek redress on the policy. A majority of the court feel constrained to decide, upon the facts established in the case before us, that there was a clear and palpable mistake or misunderstanding, and that the policy must be reformed.

We take this occasion, however, to say, that there are but few institutions more conducive to the safety and prosperity of the people, than insurance companies when well conducted, as we believe the) are in this community. They should be fostered and sustained by an equal and impartial administration of justice, when brought in conflict with persons who claim indemnity upon contracts of insurance. There should be no prejudice against them, as is sometimes the case, for protecting and defending themselves against what they believe are unfounded and fraudulent claims; and so, on the other hand, they should know that there is danger from the multiplication and rivalry of agents in every city, town and village throughout the land, some of whom are inexperienced, and not always as careful and exact as they should be. Agents should never obtain insurances for the company without authority, nor be allowed to hold themselves out by advertisements, notices, or a course of conduct, as possessing general powers, when their powers are only limited and special. Herein is great danger that injustice will be done to persons obtaining insurance, who are inexperienced in the business, and place full confidence in the word of an insurance agent, accredited as he is by his public appointment.

For the reasons herein assigned, we are of opinion that the plaintiffs are entitled to the relief for which they ask, and so we ad vise the superior court that the policy be reformed, and a decree be passed that the plaintiffs recover the five thousand dollars and interest.

In this opinion Hinman, J., concurred. Stokes, C. J., dissented.

Decree for petitioners.


source: Caselaw Access Project

author: Storrs, C. J.

license: Public Domain

text:
    Tomlinson and another vs. Roberts.
    A. sold and delivered a horse to B., and took his note for the price, soon after which, by mutual consent, the contract of sale was annulled, the horse delivered back to A,, and the notes given up to B. It was then agreed that B. should have the horse at the same price, provided he paid the amount within sixty days, for which he was to give his note, the horse to remain the property of A. until the note was paid, and to be kept in his stable, but used by B. at pleasure, ho paying a fixed rate per week for such use. Before the note fell due, B. absconded, having first disposed of the horse to C. A., immediately on learning the fact, demanded the horse, giving notice of the facts to C., and on his refusal to deliver him up, brought an action of trover. Held, 1. That the cancelation of the contract of sale and the return of the notes, was as effectual to revest the title in A. as between the parties, as the most formal reconveyance would have been; and that the resumption of possession by A. made his title good against creditors and bona fidz purchasers. 2. That after A. became thus completely revested with the title, it was as competent for him to contract with B. for the letting of the horse, as with anyother person, and that B’s possession under such letting was not fraudulent as the possession of a vendor. 3. That the new arrangement, regarded independently of the previous transactions, the jury having found, under the charge of the court, that the agreement to sell was executory, was not to be considered as in legal effect a sale and mortgage back, so as to make B’s possession fraudulent, but as a mere agreement for a future sale.
    The court having charged the jury that if they should find that the new arrangement had any connection with the prior purchase, or that the contract of sale was abandoned in contemplation of the new arrangement, then such arrangement was in effect a mere mortgage of the horse to A. as security for the price, and as a mortgage subject to the ordinary rule forbidding the retention of possession by the mortgagor, — it was held, on the defendant’s motion for a new trial, that such instruction was correct.
    Trover for a horse; tried to the jury on the general issue at the superior court in Fairfield county, December term, 1856.
    On the trial, the plaintiffs offered evidence to show that about the 1st of December, 1853, one William E. Roberts proposed to purchase the horse of them on credit, but being unwilling to trust him, they agreed that he might have him for $150, provided he paid $75 in sixty days, and the remainder in ninety days, and that the said William should give his notes accordingly, and that the horse should not become his until the notes were paid, and in the meantime should be kept at the plaintiffs’ stable, but might be used by the said William at his pleasure in his business about the town of Bridgeport, where both parties resided, at the price of $3 per week ; that the notes were thereupon given by the said William ; that in eight or ten days thereafter, the notes not being paid, the said William absconded and had never returned; and on leaving disposed of whatever property he had to the defendant, and with the rest delivered the horse in question to the defendant, under a sale, which the plaintiffs claimed to be merely colorable. They further offered evidence that immediately upon learning the disposition that had been made of the horse, they communicated the facts to the defendant, and demanded of him the return of the horse, which the defendant refused to deliver, claiming title to him under the sale from said William.
    The defendant offered evidence that prior to the above arrangement, about the 25th of November of the same year, the said William bought the horse of the plaintiffs, and gave his notes therefor, and took him into his possession, and kept him several days; that afterward the plaintiffs, being dissatisfied with the said William’s credit, proposed that the notes should be given up, and the*arrangement of the 1st of December be made; and that after that arrangement the horse continued as before in the possession of the said William, and was in his possession when purchased of him by the defendant, and that he purchased him in good faith, and for a valuable consideration; and the defendant requested the court to charge the jury that upon the' foregoing facts the plaintiffs were not entitled to recover, 1st, because the possession of the horse by the said William, under the circumstances, was fraudulent as against the defendant, a bona fide purchaser; and 2dly, because the arrangement gave to said William a right of possession in the horse, which was not terminated by the sale to the defendant, and which, if it could be terminated at all before the notes fell due, could be so only upon a demand on the said William.
    The plaintiffs claimed, and offered evidence to prove, that ihe sale of the 25th of November, was wholly canceled and abandoned prior to the arrangement of the 1st of December ; that in pursuance of such abandonment the horse had been delivered to the plaintiffs and was in their possession; and that the latter arrangement was wholly unconnected with the prior sale and not commenced until a subsequent day. They also claimed that the sale by the said William to the defendant was a violation and repudiation of the contract of December 1st, that the notes were unpaid, and were held by them readyto .be delivered up, and that the said William being out of the state, they were not bound to follow him to make demand for the horse.

      The defendant further requested the court to charge the jury, that if the said William had been the owner of the horse, and had it in his possession under the original purchase, then even although the contract had been canceled, yet the rules of law would not allow the possession to pass into the hands of the said William, under the agreement of the 1st of December, and that such possession ought to be regarded as fraudulent against a bona fide purchaser; and that independently of any such purchase, upon the arrangement of the 1st of December itself, the possession of the horse by the said William ought to be deemed fraudulent against the defendant. The court charged the j ury as follows:
    1st. Upon the arrangement of the 1st of December, considered by itself, if the jury find that that arrangement was an executory agreement for the sale of the horse upon a future day, then the plaintiffs might allow the possession of the horse to pass into the hands of William E. Roberts, under the agreement for his use, and the said William will not be regarded as a mortgagor of personal property, remaining in possession of the property within the ordinary rule of law, declaring such possession fraudulent. [The court here remarked, that this instruction was given on the authority of the case of Forbes v. Marsh, 15 Conn., 384, which had been read in the argument, but that the principle adopted in that case was not meant to be in the least extended, except that whereas the question arose there between the plaintiff and an attaching creditor, and here between the plaintiffs and a purchaser, the court intended that a purchaser should be put on the same footing as a creditor; that the contract there was regarded as an executory agreement for a sale, and not an executed conditional sale.] And if the jury find, from all the evidence, that the sale was executed and the agreement in substance a mere mortgage back of the property to the plaintiffs, then the possession of said William ought to be regarded as evidence of fraud; but if the agreement is executory, the law does not pronounce his possession fraudulent; and the fact that notes were given, although an important item of evidence in favor of the claim that the contract was executed, is not conclusive; and if the agreement is executory, the plaintiffs title, so far as this question is concerned, is good against the defendant even if you find that the defendant is a bona fide purchaser for value.
    2d. If it be true, as claimed by the defendant, that prior to the 1st of December, the said William had bought the horse of the plaintiffs, and had taken him into his possession, and if the arrangement of the 1st of December had any connection with the prior purchase, or if the giving up of the prior purchase was made in contemplation of substituting the new arrangement in its place, then the latter arrangement may properly be regarded as a mere mortgage, subject to the ordinary rule forbidding the retention of possession by the mortgagor; but if it be true, as claimed by the plaintiffs, that the prior sale had been in good faith canceled and ended, and the negotiation of the 1st of December was unconnected with it, and on a subsequent day, then such prior sale may be laid out of the case, and the questions of law, with respect to the effect of the possession of the horse by the said William, and of the new arrangement, are left as if no such prior sale had been made.
    3d. The plaintiffs can not recover in this action, unless they were entitled to the immediate possession of the horse at the time of the alleged conversion of it by the defendant; but if the said William had absconded and sold the horse, as claimed by the plaintiffs, no demand upon him was necessary to enable the plaintiffs to maintain their action, or to revest in them any right of possession which they may have parted with under the arrangement of December 1st. And if, as is not controverted, the sale by the said William to the defendant was an absolute sale of the horse, and not a sale of the right of using him, and if the property was demanded of the defendant, and he was then informed of the facts in the case ; and if, upon such demand, he refused to deliver up the property, claiming to hold it as his own under the purchase, and making no claim to a right of using it, then the jury may properly find that the said William abancloned the contract of December 1st, and had been guilty of a conversion of the property to his own use, and that the subsequent refusal of the defendant to deliver the horse to the plaintiffs under the circumstances of the case, was a conversion for which the plaintiffs might recover.
    The jury having returned a verdict for the plaintiffs, the defendant moved for a new trial for a misdirection.

      Hawley and Sturges, in support of the motion.
    1. The possession of the horse by William E. Roberts, was evidence of a fraudulent arrangement as against the defendant, considered independently of the sale of the 25th of November. The horse was delivered to and used by him as his own, his notes given for the price, and nothing further remained to be done to vest a complete title in him, except to pay the notes when they fell due. This made it a conditional sale. 1 Seld., 41. 36 Maine, 562. The case of Forbes v. Marsh, referred to by the judge in his charge, differed essentially from this. Dyer v. Pierson, 3 B. & C., 38. (10 E. C. L., 13.)
    2. The mere cancelation of the contract of sale of the 25th of November, could not operate to revest the property in the plaintiffs. The title had by the sale become vested in Roberts. The same delivery, accompanied with continued possession by the purchaser, was necessary as in the original sale. Chitt. on Cont., 5th Am. ed., 743, note; Chipman v. Searle, 3 Pick., 38. Stevenson v. Wilkinson, 3 B. & A., 320. (22 E. C. L., 86.) This doctrine is applicable to land and chattels. Botsford v. Morehouse, 4 Conn., 550. Gilbert v. Bulkeley, 5 Conn., 262. Rayner v. Wilson, 6 Hill, 469. Chessman v. Whittemore, 23 Pick., 231. Arnold v. Delano, 4 Cush., 33. Barnes v. Freiland, 6 T. R., 80. Neate v. Ball, 2 East, 117. Richardson v. Goss, 3 B. & P., 119.
    3. The retention of possession by Roberts after the resale, was fraudulent as against the defendant, who was a bona fide purchaser. This would be clearly so as to a creditor, under the statute against fraudulent conveyances, and the common law gives the same protection to purchasers. Kimball v. Hutchins, 3 Conn., 450. Rew v. Barber, 3 Cow., 272. Cadogan v. Kennett, 1 Cowp., 432. Twyne’s Case, 3 Coke, 81. Gibson v. Love, 4 Florida, 217. Sanders v. Pepoon, 4 ib., 465. Wooten v. Clark, 23 Miss., 75. Griswold v. Sheldon, 4 Comst., 581. Stoddard v. Butler, 20 Wend., 507. Wood v. Lowry, 17 ib., 492. 1 Sw. Dig., 284. Rhines v. Phelps, 3 Gilman, (Ill.,) 455. Patten v. Smith, 5 Conn., 196. Swift v. Thompson, 9 Conn., 63.

      Loomis and Beardsley, against the motion.
    1. The arrangement of December 1st, was one which the parties had a right to make, and was not in its nature fraudulent in respect to the defendant. Forbes v. Marsh, 15 Conn., 384, and cases therein cited. This case is not distinguishable from that, except that the defendant here justifies as a subsequent purchaser without notice, while in that ease the defendant was an attaching creditor.
    2. The case is not affected by the sale made on the 25th of November. 1st. Upon the cancelation of that sale the possession of the horse was resumed by the plaintiffs, and continued in them until a subsequent day. This is all that would be necessary if they were then original purchasers of the property. 1 Sw. Dig., 267. Talcott v. Wilcox, 9 Conn., 134, 140. Bishop v. Warner, 19 Conn., 460. The language in the books is, that the “continued possession” of the vendor is fraudulent. But here was no continued possession of Wm. E. Roberts, supposing him to be the vendor. 2d. But this cancelation of the sale was not in its nature a resale of the horse by W. E. Roberts to the plaintiffs, nor attended with the same legal consequences.
    3. No demand upon W. E. Roberts was necessary. Ashmead v. Kellogg, 23 Conn., 70. Fenn v. Bittleston, 8 Eng. L. & Eq., 483, and cases cited. Houston v. Dysche, 1 Meigs, (Tenn.,) 76.
   Storrs, C. J.

The cases of Forbes v. Marsh, (15 Conn. 384,) and Hart et al. v. Carpenter, (24 Conn., 427,) are decisive to show that the court below was correct in charging the jury, that if the arrangement of December, 1853, between the plaintiffs and William E. Roberts, is considered by itself, and independently of the previous arrangement between them in November, and it was, as claimed by the plaintiffs, an executory agreement for the sale by the plaintiffs to said William of the horse in question upon a future day, that it should be kept by the plaintiffs, and that the said William might, until then, use it at his pleasure in his business at a particular price for such use, it was not to be regarded as an immediate sale of the horse to said William and a mortgage back to the plaintiffs for the sura at which it was agreed to be sold, and that the possession of said William would not be regarded as evidence of fraud, as against his creditors, or the defendant, although the latter might be a bona fide purchaser from him, within the ordinary principle declaring the retention of the possession of personal property by the vendor or mortgagor to be fraudulent. Such a contract would not constitute a sale of the property, either absolute or conditional, to said William; and therefore would not divest the plaintiffs of their title to it; it would be only an executory agreement for the sale of it at a future day, with a stipulation that said William might use it, as he had occasion, in the mean time ; and if that stipulation would amount even to a bailment for that time, it is scarcely necessary to say that the possession of the bailee would furnish no evidence of fraud in the contract of bailment. Much less would it furnish such evidence, if it fell short of such a contract. The other part of the charge on this point was favorable to the defendant, and was also plainly correct.

We are of the opinion that the defendant has no reason to complain of the manner in which the questions arising on the claims of the parties, in regard to the agreement between the plaintiffs and the said William, prior to the arrangement of December, were disposed of by the court below. As no particular formalities were requisite to the re-transfer of the property, the agreement claimed by the plaintiffs to have been made between them before that arrangement, and uncon. nected with it, that the previous sale by the plaintiffs to said William should be canceled or rescinded, and that the notes given by the latter on that sale should be given up to him, was as valid and effectual to revest the title to the property in the plaintiffs, as the most formal reconveyance to them would have been; and if the possession of it was resumed by them, it was a good reconveyance of it as against the creditors of William or a purchaser from him, although in good faith. And after the plaintiffs became thus completely revested with the title to it, we can not perceive why it was not as competent for them to contract with the former vendee for the letting or bailment of it to him as to any other person, or why the principle respecting the retention of the possession of property by a vendor, would be any more applicable in the one ease than in the other. If the change of possession was not bona fide, but merely colorable, it would present a different question, and the previous relations of the parties would render it more open to observation on such a question ; but here the jury have found that it was done in good faith. And it appears that the defendant, on that question, had the fullest benefit of that circumstance; for the court instructed the jury very favorably for the defendant, that if the arrangement of the 1st of December had any connection with the prior purchase, or if that purchase was given up in contemplation of substituting that arrangement in its place, then the latter arrangement might properly be regarded as a mortgage only, subject to the ordinary rule forbidding the retention of possession by the mortgagor.

The charge below being in accordance with the views we have expressed, a new trial is not advised.

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

New trial not advised.


text:
    Luckey vs. Roberts.
    L. brought an action of trover against O. to recover for goods in his possession fraudulently purchased of the plaintiff on credit by W., and by W. sold to O.— claiming that W., O. and one T. had conspired to defraud him in the purchase of the goods. Held, that to prove the conspiracy, a like fraud committed by the alleged conspirators about the same time on a third party, was admissible in evidence.
    Also that, if O. had participated in the fraud by which the goods were procured, no demand on him for the goods, before bringing the suit, was necessary.
    Also that the fact that the same goods had been attached in the present suit, the officer who attached them having soon after delivered them back to the defendant on his receipt therefor, furnished no reason for reducing the damages below the actual value of the goods.
    The court having charged the jury, in the case, that if the defendant made the purchase of W., knowing, or having reason to believe, that the goods were not paid for, and that it was the intention of W. to abscond and to defraud his creditors by means of the sale to him, then his purchase from W. was as against the plaintiff fraudulent and void, — the court having, in a previous part of the charge, instructed the jury as to the effect of the original fraud, in preventing the passing of the title to W., — it was held, that the court was to be understood as speaking here of the infirmity of the defendant’s title, and not as intending that, by force of these facts alone, a title to the property would vest in the plaintiff, as the mere creditor of W., irrespective of the original fraud; and that this part of the charge, taken in connection with the rest, was unobjectionable.
    Trover: brought to recover the value of a quantity of groceries, sold by the plaintiff to one William E. Roberts, in December, 1853, and now in the hands of the defendant. The plaintiff claimed to have rescinded the sale for fraud. The case was tried to the jury on the general issue, at the term of the superior court, holden in Fairfield county, in October, 1856.
    On the trial, the plaintiff offered evidence to prove that the said William applied to him at his place of business in New York, to purchase the goods in question on credit, delivered to him a letter of recommendation from J. E. Thorp & Son, a mercantile firm of Bridgeport, in this state, where also the defendant and said William resided, and represented that he was a merchant in Bridgeport, of large property, in good credit, and able to pay for the goods; and that, induced thereby, he sold and delivered to him the goods on credit; that said representations were entirely false; that said William was an utter bankrupt, and within ten days after obtaining possession of the goods, absconded, leaving the goods, and all other visible property in his hands, in the possession of the defendant. The plaintiff also offered evidence to prove that at the time said J. E. Thorp & Son gave said letter of recommendation, they knew that it was false, and that said William was destitute of property and unworthy of credit, and claimed that the said William, the defendant, and said J. E. Thorp & Son, had conspired to defraud such persons as they might be able to deceive, by the purchase of goods on credit, through the agency of said William, and that' the fraudulent purchase in question was made in pursuance of the conspiracy.
    And to prove such fraud, the plaintiff offered one Middle-brook, a merchant of said Bridgeport, to testify that, about the time of the sale of the goods by the plaintiff, the said William applied to him to buy goods on credit, and made representations regarding his property and trustworthiness, of the same kind as those made to the plaintiff, and also referred him to said J. E. Thorp & Son for information regarding him, who on being inquired of, informed him that said William was trustworthy and could be depended upon; and that he thereupon sold him sundry goods on credit, which he afterward, on the absconding of said William, found in the possession of the defendant. To this evidence the defendant objected, because the transaction had no connection with that between said William and the plaintiff, and because it had not been proved that any conspiracy, such as the plaintiff claimed, between the defendant and said William, in fact existed. But the court admitted the evidence, remarking to the jury that it would not prescribe to the plaintiff the order in which he should introduce his evidence, but that said testimony should be laid out of the case, unless in the course of the trial the conspiracy should be proved to the satisfaction of the jury.

      The defendant, claimed that he bought the goods of said William, in good faith, and paid a valuable consideration for them, without notice of any fraud in the purchase of them, or of any fraudulent intent in selling them to him. He also offered evidence to prove that after the sale to him, the plaintiff, after he had obtained full knowledge of the fraud of said William, elected to affirm the original sale, and commenced a suit by attachment against said William for the price of the goods; and prayed the court to charge the jury, that if they should find that the plaintiff had thus affirmed the sale, after he had obtained full knowledge of the fraud, he was not entitled to a verdict, whatever the manner in which the defendant had obtained the goods from said William might have been.
    The defendant also offered evidence to prove that no demand for the goods was made by the plaintiff of the defendant before the commencement of the suit, and prayed the court to charge the jury that without such demand the plaintiff could not recover.
    It was agreed that the goods in question were, by the plaintiff's direction, attached in this suit and thereupon taken by the officer out of the possession of the defendant, and retained by him for some time, until the defendant gave a receipt therefor in the usual form, when they were delivered back to him, and had never been returned to the officer or to the plaintiff. Thereupon the defendant requested the court to charge the jury that, even if the plaintiff was entitled to a verdict, he could not recover the full value of the goods, but only actual damages for the detention from the time of the demand to the commencement of the suit.
    The court charged the jury that if the said William, intending to defraud the plaintiff’ of the goods in question, represented to him that he was a man of property and able to pay for them, and those representations were false in fact, but the plaintiff believed them to be true, and induced thereby contracted to sell the goods and delivered them to the said William, then such contract was void as between the plaintiff and said William, and as between them the plaintiff had a right to reclaim the goods, as if no such contract and no such delivery had been made.
    And that if the plaintiff, after the sale, with a full knowledge and comprehension of the fraud, intentionally affirmed the contract of sale, and openly elected to treat the contract as valid, and the goods as the property of said William by the sale, he was bound by such election, and had no right afterward, and after a bona fide sale of the goods to the defendant, to repudiate the sale.
    That if the jury should find that the defendant originally participated with the said William in the procurement of the goods by fraud, then his title to them would be no better than that of said William. But that if he in no way participated in the fraudulent procurement of the goods, and had no notice thereof, and no notice of said William’s intention to defraud the plaintiff by avoiding payment therefor, and bought the goods of said William in good faith, he was entitled to a verdict, whether the said William procured the goods from the plaintiff fraudulently or not.
    That if the defendant made the purchase of said William, knowing, or having sufficient reason to believe, that the goods were not paid for, and that it was then the intention of said William to abscond, and defraud his creditors by means of such sale to the defendant, then the defendant’s purchase was as against the plaintiff fraudulent and void, and the defendant could not hold the goods.
    That if the suit was commenced before any demand had been made for the goods, the verdict should be for the defendant, unless the jury should find that the defendant participated with said William in his fraud, in which case such previous demand would not be necessary.
    And that, although it was admitted that the goods in question were, by the plaintiff’s direction, attached in this suit and taken by the officer out of the defendant’s possession, yet if they were delivered back to him upon his receipt, and were converted by him to his own use, claiming them as his property, if the plaintiff was entitled to recover at all, the rule of damages would be the whole value of the goods with interest thereon, and not merely the damages occasioned by the detention as claimed by the defendant.
    The jury returned a verdict for the plaintiff, and the defendant moved for a new trial, for error in the admission of evidence, and in the charge to the jury.

      Hawley and Sturges, in support of the motion.
    1. The court erred in charging the jury that a full knowledge and comprehension of the fraud was necessary to give to the plaintiff’s acts the effect of an affirmance of the sale. A full knowledge is not necessary. If the plaintiff had learned that which entitled him to rescind the sale, and after that elected to consider it as valid, he can not afterward rescind it, though he should discover further developments of fraud. Walker v. Davis, 1 Gray, 506. Brewer, v. Sparrow, 1 B. & C., 310. Campbell v. Fleming, 1 Ad. & El., 40.
    2. The court erred in charging the jury that if the defendant knew that the goods were not paid for, and that William E. Roberts intended to abscond and defraud his creditors, he could not hold the goods.
    All this is consistent with a purchase originally bona fide, and which vested the title fully in the purchaser; an intention to defraud creditors generally, would make the defendant’s purchase simply void as against creditors, who by attaching the goods as the property of the defendant’s vendor, could take them from him; but it would give the plaintiff no right to rescind the original sale, nor to claim the property from the defendant, but only to attach and hold it as the property of William E. Roberts, on the ground that he was a creditor of said William. Owen v. Dixon, 17 Conn., 492.
    3. A demand was necessary, even if the defendant participated in the alleged fraud, since, until the sale was rescinded, the title was good in the purchaser, and in the defendant as derived from the purchaser. And the defendant having title, his detention of the goods could become wrongful, only after a demand and a refusal to deliver them up. Hoffman v. Noble, 6 Met., 68. Morey v. Walsh, 8 Cowen, 238. Rowley
      v. Bigelow, 12 Pick., 307, 313. White v. Garden, 53 E. L. & Eq., 379. Stierneld v. Holden, Ry. & Mo., 219, (21 E. C. L., 422.) Kingsford v. Merry, 34 E. L. & Eq., 607. Saltus v. Everett, 20 Wend., 267, 279. Cooper v. Chitty, 1 Burr., 20. Carlisle v. Leonard, 7 Bing., 298, (20 E. C. L., 136.) Feret v. Hill, 26 E. L. & Eq., 261. Stewart v. Spedden, 5 Md., 433. Root v. French, 13 Wend., 570. Thompson v. Rose, 16 Conn., 71, 83. McCarty v. Vickery, 12 Johns., 348. Spafford v. Roof, 9 Cowen, 626. Newnham v. Stevenson, 3 E. L. & Eq., 512.
    4. If the sale was rescinded, then the title to the property, remaining in the plaintiff, would not vest in the defendant until judgment was recovered against him. Therefore when the plaintiff attached the goods, they were his own property, and recovering possession, by whatever means, the property is to be considered as returned to him; and the rule applies that the return of property unlawfully taken or withheld, goes in mitigation of damages. Curtis v. Ward, 20 Conn., 204.
    5. The evidence of the fraud alleged to have been committed on Middlebrook, was inadmissible. It was a transaction between other parties.

      Loomis and Morris, contra.
    1. The testimony of Middlebrook was admissible. Such acts of conspirators toward other parties are always received as proof of conspiracy in the particular case. Pierce v. Hoffman, 24 Verm., 525. Gibson v. Hunter, 2 H. Bl., 288. Beal v. Thatcher, 3 Esp., 194. Gardner v. Preston, 2 Day, 205. Sw. Ev., 153. 1 Greenl. Ev., sec. 116.
    2. A vendor may reclaim goods from a fraudulent purchaser. No title passes by a sale procured by fraud.
    3. And if the defendant participated in the fraud, then his title was affected by it in the same manner. And no title passing to the defendant, and his possession being obtained by fraud, his detention of the goods was unlawful without any demand made upon him to deliver them up; and such demand was therefore unnecessary.

      4. The purchase of the goods by the defendant from. William E. Roberts, was clearly a fraud on the plaintiff, and therefore void as to him, if the defendant knew that said William had not paid for the goods, and made the sale intending to defraud his creditors thereby; and the charge of the court required the jury to find this.
    5. The attachment of the goods, the holding of the same by the officer, and his redelivery of them to the defendant, on his giving a receipt therefor, did not constitute a return of the property to the plaintiff, and the damages ought not to have been reduced, as the defendant claims, in consequence.
   Ellsworth, J.

We think there is nothing wrong in the ruling of the court, that the testimony of S. M. Middlebrook should be received for the consideration of the jury. Whenever a conspiracy is alleged as the means of effecting a fraudulent purchase of goods, it is the constant practice of courts to receive, as evidence of the character of the act, like fraudulent acts between the same conspirators, at or about the same time and of the same nature, in furtherance of the fraudulent design. And so long as the conduct of men is allowed to throw light upon their motives of action, so long such evidence is most proper to go to the jury, when those motives are the subject of inquiry.

This principle was fully recognized in Thompson et al. v. Rose, 16 Conn., 71, and in Gardner v. Preston, 2 Day, 205; and it is the uniform doctrine of the books.

As to the objection that the plaintiff could not sue the defendant for the fraud after he had ratified and confirmed the sale to W. E. Roberts, with knowledge of the fraud, we do not perceive its applicability, since the court charged the jury as was requested by the defendant.-

The court further charged the jury, and correctly according to our views, that no demand' before suit was necessary upon the defendant, if he had participated with said William in the fraudulent purchase from the plaintiff.

The court was correct as to the matter of damages, for the plaintiff had lost his property by the fraud of the defendant, and why should he not recover its full value.

Another objection has been urged with apparently more confidence. It is said the judge was incorrect in instructing the jury “that if the defendant made the purchase of said William, knowing, or having sufficient reason to believe; that said goods were not paid for, and that it was then the intention of said William to abscond and cheat his creditors by means of the sale to the defendant, then the defendant’s purchase was, as against the plaintiff, fraudulent and void, and the defendant could not hold the goods.” It is said this ruling is inconsistent with the law laid down by this court in Dixon v. Owen, 17 Conn., 492, that a fraudulent sale by the owner of goods does not give a title to the goods to a creditor, and that he can get a title only by a sale on execution. The difficulty grows out of a misconception of the charge. Doubtless the law is, as was laid down in Dixon v. Owen, that a creditor, by virtue of the relation of creditor and debtor, has no title to the debtor’s property, if he does nothing to acquire the title. But then what has the doctrine to do with this case ? Nothing, as we understand the charge. The defendant, here, was insisting that he was a bona fide purchaser from his brother William, not that the plaintiff had no title, if he had been defrauded as he claimed he had, but that the defendant had purchased the goods honestly and therefore, at all events, he had acquired a good title. The court, in this part of the charge, intended to state, and we think did state, what was essential to constitute a bona fide purchase by the defendant. The court was not speaking of the plaintiff’s title but of the defendant’s, for of the plaintiff’s title it had already expressed its views. If the whole charge is taken together, as it should be, it does not appear to us to be incorrect in this latter particular, nor in any other so far as we discover, and therefore we do not advise a new trial.

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

New trial not advised.


text:
    Weed and another vs. Weed.
    The record of a judgment having been amended during the pendency of a writ of error thereon, the amended record becomes the only subsisting record for the consideration of the court.
    A motion for a new trial having been granted, unless the plaintiif should remit a certain sum improperly included in his verdict, which he accordingly did, and judgment was rendered for the remainder of the verdict with interest thereon for the time intervening between the verdict and the judgment, — it was held, on a writ of error from the judgment, that the interest was properly added to the verdict, the case falling within the equity of the rule on the subject. (18 Conn., 575.)
    It being claimed as error, that the court below required a remittitur of a certain sum only, when it should have included therewith several years interest thereon, which it appeared, by the motion for a new trial, had been allowed by the jury in their verdict in connection with said sum, — it was held, that as it did not appear from the record on what ground that sum was required to be remitted, it was impossible for the court to know that the interest in question ought to have been added to it.
    And where, on the petition of the original plaintiff, the superior court had corrected the record of its judgment in certain other respects, and at the same time had ordered the plaintiff to indorse on his execution the amount of the interest so claimed to have been improperly included in the judgment, which he had done, — it was held, that that proceeding practically corrected the error, and that the judgment ought not to be set aside for the merely formal error that might remain in the record.
    Writ of error from a judgment rendered by the superior court in Fairfield county, at its October term, 1853. The original action was assumpsit, in which the plaintiff recovered a verdict of $745.85. The defendants filed a motion for a new trial, which was granted, unless the plaintiif should remit the sum of $117, improperly included in the verdict. The motion stated that the plaintiff claimed to recover, among other items, the sum of $117 and interest thereon, from the 1st day of July, 1843, and that the jury rendered a verdict for the plaintiff, including therein the said sum of $’117, and interest thereon. The plaintiff remitted said sum, and the court rendered judgment for the remainder of the verdict with interest thereon from the date of the verdict to that of the judgment.
    The errors principally relied upon, were, that the court had required a remittance of the $117 only, when it should have included therewith the interest thereon from July 1, 1843 ; and that interest was included in the judgment, on the remainder of the verdict, for the time intervening between the verdict and the judgment.
    Other errors assigned were rendered unimportant by the correction of the record during the pendency of the writ of error. (See Weed v. Weed, ante, p. 337.) The court, in ordering a correction of the record, had also enjoined the defendants in the original suit from availing themselves in any manner of the erroneous record; and had ordered the plaintiff therein to indorse on his execution the sum of $57.75, which was admitted to be the amount of the interest on the $117, from July 1,1843, to the time when the judgment was rendered.

      Hawley and Ferris, for the plaintiffs in error.
    1. The allowance of interest on the verdict was erroneous, for the delay was caused by the error of the court and not by the act of the defendant. The rule of the court (18 Conn., 575, rule 6) gives interest on a verdict only against a party moving for a new trial and failing in his motion. Here the defendant succeeded.
    2. There should have been a remittttu/r not only of the $117, but of the interest thereon from July 1, 1843, to the time when the judgment was rendered. It appears expressly by the motion for a new trial, that the jury included this interest with the $117 in their verdict.
    3. The order of the court, on the application for the correction of the record, does not cure the error, for that was only to indorse the amount on the execution, leaving the judgment just as it was before.

      Dutton and Carter, for defendant in error.
    1. The record does not show that any interest on the $117 was included in the judgment. There is no reference to this interest except in the defendant’s motion for a new trial; but this is not properly any part of the record, at least in its relation to the judgment. It is a mere statement by the judge for the consideration of the court of errors upon the question whether a new trial shall be granted, and can not be used for any other purpose.

      2. If the fact can be regarded as appearing on the record, and if it be error in the court to have rendered judgment without requiring a remittitur of the interest as well as the principal sum, yet the error is practically and sufficiently cured by the indorsement, under the order of the court, of the amount of this interest on the execution. The plaintiff in error is no longer injured by the error, and no party can take advantage of an error by which he is not injured.
    3. Interest on the remainder of the verdict was properly included in the judgment. This part of the verdict was justly due to the plaintiff, and the defendant ought to have paid it. The case falls within the equity of the rule adopted by the court on the subject. 18 Conn., 575;
   Storrs, C. J.

This writ of error was brought upon the original record of the judgment rendered in the superior court. As that record has, since this writ of error was brought, in consequence of its not stating correctly the proceedings of that court, been amended and corrected by that court, so as to state those proceedings truly and formally, and a new record, on such correction, substituted, it is obvious that the latter is now the only subsisting record of the proceedings and judgment of the superior court in the case, and that the original record is annulled, and consequently, in contemplation of law, has no legal existence. It would therefore be futile, and indeed irregular, to treat it on this writ of error, as a subsisting record or evidence of the proceedings of the superior court. It moreover appears, by reference to the decree of that court, by which its original record was so amended, that the plaintiff in error (the defendant below) was thereby expressly perpetually enjoined from claiming, in any form or place, that the judgment of that court was not as it appears to have been by the amended record; so that, on this ground, it is not,competent for the plaintiff in error to avail himself of any error which might be apparent on the record as originally made. Nor does he now undertake to do so. Any question, therefore, which is made, as to the correctness of the judgment of the superior court, must be made upon its judgment as evidenced by the record so amended, and the parties in the present case, waiving the want of technical form in bringing the question of the validity of the judgment, as evidenced by such amended record before us for revision, have, accordingly, treated the case as though the record had been originally made as it now appears in its amended shape; and the question is, whether such record discloses any error in the judgment of the superior court. We are of opinion that it does not.

The first ground on which the plaintiff in error claims that the judgment of the superior court is erroneous, is that the court allowed interest on the sum for which the verdict was rendered, after deducting from that sum the $117, which was remitted by the plaintiff below, (the defendant in error.) The superior court, in pursuance of the advice of this court, refused a new trial in that case, provided the plaintiff should remit that amount, and it was remitted accordingly. It was found that, for the balance, the verdict was right, and that there was no reason for disturbing it. In respect to that balance, as the proper remittitur was made, the verdict was established, and a new trial was consequently refused. As the result showed that the collection of the amount of that balance was wrongfully delayed by the motion of the defendant below for a new trial, we think that the case was equitably, if not literally, within the terms of the rule established by the superior court, (18 Conn., 575,) that where a motion for a new trial made by a defendant does not prevail, he shall pay interest on the plaintiff’s debt while its collection is delayed by it. The defendant not having paid or offered to the plaintiff the amount to which the latter was rightfully entitled, as he might have done when the judgment was rendered, it is just that he should pay interest while payment of it was thus delayed. On this point, therefore, there is no error.

The only other ground on which the plaintiff in error complains of the judgment below, is that the superior court ought to have required a remittitur, not only of the $117, but of the interest on that sum from July 1st, 1843, to the rendition of the judgment at the October term, 1851. It is a conclusive answer to this objection, that it does not appear from the record of the superior court, on what ground, or for what reason, that sum was required to be remitted, or that it was for an item on which it would have been legal or just that the defendant below should be allowed any interest. That such might possibly have been the case, is not a sufficient reason for pronouncing the judgment below to be erroneous ; it is for the plaintiff in error to show affirmatively that it is so. The remittitur of any sum was for his benefit, and it rests upon him to show that it ought to have been greater. But it appears from the record that the superior court ordered that the plaintiff below should endorse, on the execution upon his judgment, the sum of $57.75, “ claimed to have been improperly included in said judgment,” without stating on what ground such claim was made. It does not appear from the record how that sum was arrived at, or of what it consisted; but it has been taken for granted, on the argument before us, that it was the amount of interest on the $117, which the plaintiff in error claims should have been allowed on it. If this is the case, he has not received, and can not receive, any injury; and this court has decided, on the motion in error brought from the decree of the superior court, amending the original record in this case, and putting it in its present shape, that there was no error in the decree in directing the endorsement on the execution to be made which is now complained of. Weed v. Weed, ante, p. 337. To what was then said by us, it may be added, that although the more technical mode might have been to render judgment for the amount of the original judgment, after having deducted therefrom the sum ordered to be endorsed on the execution, yet the judgment, taken in connection with the order, that that sum should be endorsed on the execution, amounted virtually to such a judgment; and for a merely formal and unsubstantial error of this description, the judgment should not be disturbed.

The judgment of the superior court is therefore affirmed.

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

Judgment affirmed.


text:
    Hart vs. Stevenson.
    In an action against an officer for an escape on mesne process, the admissions of the defendant in the original suit, may be proved, to show a cause of action in such suit.
    And it is not necessary that such admissions should have been made before the escape.
    And the judgment obtained against him in the original suit, although by default, is admissible in evidence for the same purpose.
    In such actiou for an escape, it is not necessary that demand should have been made upon the defendant for the body of the debtor, on the execution issued in the original suit.
    Nor that the defendant should have had notice that the execution was in the hands of an officer for service. *
    Nor that the officer serving such execution, should have retained the same during its life, to give the defendant a better opportunity to render the body of the debtor; the only rule being, that he should conduct fairly and use due diligence to arrest the debtor, and return the execution in a reasonable time; and the question whether he has done so being wholly one of fact for the jury
    And where the defendant has not tendered the body of the debtor within the life of the execution, he is not in a situation to complain that it was prematurely returned.
    •It appearing in such action, that the writ on which the arrest was made, and which was returnable to a city court, the jurisdiction of which was limited to cases where the cause of action arose within the city, contained no averment of the facts necessary to give such jurisdiction, except the following, at the close of the writ, “ and the cause of action arose in the limits of said city since the incorporation thereof, and the defendant claiming that by reason. thereof the writ was void in his hands, — it was held, that although the statement was so informal that it would not have been sustained on special demurrer, yet it was rather a defective allegation than an entire omission of a necessary allegation, and therefore good on general demurrer, and consequently was sufficient to show jurisdiction.
    Action on the case for the escape of one Ruperts from the custody of the defendant, a constable of the town of Bridgeport, who had attached his body on mesne process. The case was tried to the jury on the general issue, with notice, before the superior court in Fairfield county, December term, 1856.
    The writ on which the body of Ruperts had been attached^ was in an action of trover, brought to the city court of the city of Bridgeport, to recover for an iron planer belonging to the plaintiff. The declaration contained no averment that the conversion of the property by the defendant therein, occurred within the limits of the city, except the following, at the close of the writ: “ and the said cause of action arose in the limits of said city since the incorporation thereof.” The jurisdiction of the city court is limited by law to cases where the cause of action arises within the city. The plaintiff recovered judgment in this suit against Ruperts by default. The defendant had made return on the writ, that he had attached the body of Ruperts, and that he had afterward escaped from his custody.
    The plaintiff, on the trial, for the purpose of proving a conversion of the property by Ruperts, testified that after his arrest and before the session of the court to which the writ was returnable, he admitted to him that he had taken away the planer. To this evidence the defendant objected, on the ground that Ruperts was not a party to the present suit, and that the defendant ought not to be bound by any admission made by him at that time; but the court admitted the evidence.
    The plaintiff also offered the record of the judgment recovered against Ruperts in the suit, for the purpose of showing that he had, at the time the writ of attachment was issued, a cause of action against him. To the admission of this evidence for that purpose, the defendant objected, on the ground that Ruperts was not a party to this suit, and that the judgment was recovered after the escape; but the court admitted the record in evidence, subject to objections to be heard on the argument; and the question as to the admissibility and weight of the evidence having been discussed by the counsel, the court instructed the jury that they might take into consideration the fact that Ruperts had suffered judgment by default, and the circumstances under which he had done it, in connection with the other proof in the case, on the question whether the plaintiff had a cause of action against him, in the suit on which he was arrested.
    The plaintiff, also, for the purpose of showing a cause of action against the defendant, offered in evidence the writ of attachment against Ruperts, and the return of the defendant thereon. To this evidence the defendant objected, on the ground that the city court was a court of limited and inferior jurisdiction, and that it did not appear by the writ that it had jurisdiction of the cause of action therein set forth, and that the writ was therefore null and void; but the court admitted the evidence.
    The plaintiff, for the purpose of proving that he had exercised due diligence in endeavoring to obtain satisfaction of his judgment and to arrest the body of Ruperts, offered in evidence the execution issued on the judgment, dated September 5th, 1853, with the endorsement of the sheriff thereon, dated September 24th, 1853, that he had made diligent search, but could not find any goods or estate of the defendant therein, on which to levy, and could not find the body of the debtor, and therefore returned the execution wholly unsatisfied; with the endorsement of the clerk of the city court thereon, dated the 27th day of September, 1853, that the execution was returned to his office, accompanied with evidence that it was placed in the hands of the sheriff within a day or two after its date. The plaintiff further offered evidence, which was not contradicted, that Ruperts, after his escape, had left the state and taken his family with him, and had not returned until more than a year after the issuing of the execution.
    The defendant being examined as a witness, testified, that he did not know that the execution was in the hands of the sheriff, but did know that judgment had been rendered against Ruperts, and that execution had issued on it. It was admitted that the defendant resided in Bridgeport during the life of the execution, and it was not claimed that any demand was made on him on the execution, and there was contradictory testimony on the point whether the defendant knew that the execution was in the hands of the sheriff
    The defendant thereupon prayed the court to instruct the jury that inasmuch as it appeared from the plaintiff’s own showing that the sheriff made no effort to arrest the body of Ruperts, except what appears by his endorsement to have been done on the 24th of September, 1853, and that he returned said execution to the clerk of said city court with his endorsement thereon three days after, and more than thirty-eight days before the execution would expire, such conduct on the part of the sheriff was inexcusable, and fraudulent toward the defendant, and deprived him of the opportunity of rendering the body of Ruperts, and that the plaintiff, for that reason, was not entitled to recover: also, that if they should find that a demand was not made on the defendant to render the body of Ruperts, and that he had no knowledge that the execution was in the sheriff’s hands for service until after the commencement of this suit, the plaintiff was not entitled to recover.
    The court charged the jury, that to entitle the plaintiff to recover, it was not sufficient to prove that Ruperts had escaped from the defendant’s custody by his negligence; but he must also show a cause of action against Ruperts, and that he had obtained judgment and execution; that he had taken out execution within a reasonable time after judgment, and that due diligence had been used to find the body of Ruperts within the sixty days after judgment, and in causing the execution to be regularly returned with non esi inventus; but that the law did not require that the demand should be made with the execution upon the defendant; that it was sufficient if the plaintiff had conducted fairly, and had used reasonable diligence to obtain satisfaction of the execution, and to find the body of Ruperts during the period of sixty days after judgment; that the want of demand on the defendant, and the early return of the execution, might be taken into consideration by the jury, in deciding that question ; that they might also look at all the circumstances of the case, the facts connected with the escape and absence of Ruperts, and the probabilities of his being found in the state.
    The jury having returned a verdict for the plaintiff, the defendant moved for a new trial for error in the admission of evidence and in the charge to the jury.

      Sturges and Beardsley, in support of the motion.
    1. The acknowledgment of Ruperts that he had converted the property, made after the arrest, was inadmissible. It was hearsay testimony, and there was no privity between him and the defendant, and no identity of interest, one of which is indispensable to make the declaration admissible. Beauchamp v. Parry, 1 B. & Ad., 89. (20 E. C. L., 351.) Phillips v. Cole, 10 Ad. & E., 106. (37 E. C. L., 62.) Geere v. Burkensham, 2 Levinz., 85. Trelauney v. Colman, 2 Stark, 191. (3 E. C. L., 308.) 2 Stark. Ev., 740. Briscoe v. Stevens, 2 Bing., 213. (9 E. C. L., 387.) Rogers v. Jones, 7 B. & C., 86. Patterson v. Westervelt, 17 Wend., 543. 2 Phil. Ev., (C. & H.,) 561. The same objection lies to the judgment. If a judgment by default is an admission of a cause of action, it ought not to affect the present defendant, because made after the escape.
    2. The original writ was void in the hands of the defendant, as it did not show that the city court had jurisdiction of the cause of action therein. Turner v. Roby, 3 Comst., 193. Sackett v. Andross, 5 Hill, 327, Hill v. Stocking, 6 ib., 314. People v. Kuber, 7 ib., 38. Harris v. Wells, 29 E. L. & E., 280. Hernaman v. Smith, ib., 426. Trevor v. Wall, 1 T. R., 151. Briscoe v. Stevens, 2 Bing., 213.
      Wooster v. Parsons, Kirby, 27. Winford v. Powell, 2 Ld Raym., 1310. The general allegation that the cause of action arose within the city, is not enough. The jurisdiction of the court must appear by such an averment of facts as shows it, from which the court as a matter of law can infer it, and not by such an allegation. Douglas v. Forest, 4 Bing., 686. (15 E. C. L., 113, 120.) Frary v. Dakin, 7 Johns., 75. Wyman v. Mitchell, 1 Cowen, 316. Brown v. Keene, 8 Pet., 115. Bingham v. Cabot, 3 Dallas, 382. Sullivan v. Fulton Steamboat Co., 6 Wheat., 450. Gould’s Pl., ch. 3., sec. 28. Cane v. Chapman, 5 Ad. & E., 647. (31 E. C. L., 404.) Seymour v. Maddox, 5 E. L. & E., 265. Newman v. Hierdrick, 8 Ad. & E., 124. (35 E. C. L., 349.) Brown v. Mallett, 5 M. G. & S., 615. (57 E. C. L., 615.) Priestly v. Fowler, 3 M. & W., 1. It is not enough that the averment is in the words of the charter. Fletcher v. Calthrop, 6 A. & E., N. S., 880. (51 E. C. L., 880.) People v. Buncher, 1 Seld., 106. Trevor v. Wall, 1 T. R., 151. Peacock v. Bell, 1 Saund., 74.
    3. The defendant was not liable for an escape, until such a default as would subject bail, for he is to be regarded as bail. 1 Sw. Dig., 543. Bail has the right to surrender the principal during the life of the execution, and a return of the execution before the return day deprives him of that right and discharges him from liability. Moore v. Bowmaker, 6 Taunt., 379. Adams v. Cummisky, 4 Cush., 422. Niles v. Field, 2 Met., 327. Rowland v. Seymour, 2 Met., 590. Sage v. Proctor, 7 B. & C., 800. (14 E. C. L., 133.) Champion v. Noyes, 2 Mass., 484. Bean v. Parker, 17 Mass., 591, 604. Hamilton v. Dunklee, 1 N. Hamp., 172.

      Loomis and Warner, contra.
    1. The declaration of Ruperts was properly admitted for the purpose of proving a cause of action against him in the suit on which he was arrested. 2 Greenl. Ev., secs. 589, 584, 171. Beal v. Ledlow, 14 Ala., 523. Campbell v. Day, 16 Verm., 558. Marsh v. Gold, 2 Pick., 285. Sanborn v.
      Neilson, 4 N. Hamp., 501. 1 Sw. Dig., 543, 761. Hartford Bridge Co. v. Granger, 4 Conn., 142, 148.
    2. The record of the judgment recovered against Ruperts, by default in the suit, was properly admitted, for the same purpose. 1st. It was conclusive evidence as to the existence of such cause of action, both as against Ruperts and the defendant. 1 Sw. Dig., 543, 752. 2 Greenl. Ev., secs. 584, 589. 2d. The fact that Ruperts had suffered judgment by default,'and the circumstances under which he had done it, in connection with the other proof in the case, was proper evidence to go to the jury, as at least conducing to show the existence of such cause of action. Belden v. Lamb, 17 Conn., 441, 450. 2 Greenl. Ev., secs. 196, 197, 527.
    3. The claim that the writ on which the arrest was made, was void, as not showing jurisdiction in the city court, is not well founded. 1st. The general averment that “the said cause of action arose in the limits of said city,” is in conformity with, and nearly in the language of, the charter of the city, prescribing the jurisdiction of the city court in civil causes. Charter of Bridgeport, sec. 10. 2d. This mode of averment is common, and is allowable under the rule that a general allegation may be used to avoid prolixity. 1 Sw. Dig., 606. 3d. It is equivalent to an allegation that the conversion took place within the city, which would clearly have been sufficient under whatever strictness of pleading. Strong v. Avery, 1 Root, 259. Griswold v. Mather, 5 Conn., 436. 4th. The writ was not null and void, because clearly amendable. Rev. Stat., tit. i., sec. 103. Michaelson v. Denison, 3 Day, 294. The informality was ground only for a special demurrer, and is cured by the judgment by default. Gould’s Plead., chap. 9, sec. 15. 1 Sw. Dig., 778. 6th. It is now too late for the defendant to avail himself of the informality. Greathouse v. Dunlap, 3 McLean, 303. Rosenburg v. McKain, 3 Pick., 145.
    4. The charge of the court, in respect to the taking out, service and return of the execution, can not justly be objected to by the defendant. 1st. The rights of the defendant are certainly not greater than those of bail in relation to his principal, though in some respects, perhaps, analogous. 3 Bl. Com., 415. 1 Sw. Dig., 543. Brown v. Lord, Kirby, 211. Rev. Stat., tit. 1., see. 42. 2d. In the case of bail, it is not necessary in all cases that the execution should have issued on the day of the rendition of the judgment, nor that it should remain in the hands of the officer, for the full period of sixty days, to justify a return of non est inventus. This is well settled in this state by a course of decisions. Fitch v. Loveland, Kirby, 380, 384. Collins v. Cook, 4 Day, 1. Edwards v. Gunn, 3 Conn., 316. Beebe v. Gardner, 11 Conn., 104, 109. 3d. Neither is a demand of the bail for the body of the principal, necessary to be made on the execution to show an avoidance. The officer’s return is prima facie evidence of that fact. Edwards v. Gunn, supra. 4th. The defendant, to avail himself of this objection, should have shown that he was prejudiced by the want of such demand. This he did not attempt to do. On the contrary, it appears that from the time of the escape till more than a year after the rendition of the judgment, Ruperts was absent from the state, and beyond the reach of the execution.
   Storrs, C. J.

It is well settled, as a general rule, that in an action against an officer for an escape on mesne process, in which it is held to be necessary to prove the cause of action against the defendant in the original suit, the admissions of the latter are admissible to prove such cause of action. Kempland v. Macauley, Peake’s Ca., 65. S. C., 4 T. R., 436. Sloman v. Herne, 2 Esp. R., 695. Williams v. Bridges, 2 Stark., 42. This is not denied by the defendant; but he insists that the rule should be qualified so as to embrace only such admissions as were made before the arrest, or, at least, before the escape of the original debtor. We do not accede to this claim. The reason on which such testimony is received, has no reference to the particular time when the admissions were made, but embraces all admissions which would be evidence against the debtor if the question was one between him and the plaintiff, and therefore applies to those made at any time. In the eases reported where such testimony has been considered, with the exception of Rogers v. Jones, 7 Barn. & Cres., 86, in which the declarations of the debtor after the arrest and before the escape were received, it does not appear at what time the admissions were made; but the general rule laid down by the eminent judges in those cases, and under which they were held to be admissible, excludes any qualification depending on that circumstance. The decision in those cases was placed on the broadest ground. In Sloman v. Herne, which was an action for an escape, Lord Kenyon says : “ Whatever evidence would be sufficient to charge the original defendants, would do to charge a sheriff in such an action as the present; and in Williams v. Bridges et al., which was a similar action, Abbott, J., said, in nearly the same terms, that he understood the rule to be, that an admission which would be evidence against the defendant in the original suit, would also be evidence against the sheriff. This is the rule as understood by Mr. Btarkie and Mr. Green-leaf, who apply it unrestrictedly to admissions like those we are considering, irrespective of the time when they were made. Judge Bwift recognizes the same rule. 2 Stark. Ev., 48. 3 ib., 1343. 1 Greenl. Ev., sec. 181. 2 ib., secs. 196, 527, 589 1 Sw. Dig., 543. 2 Phill. Ev., (Cow. & Hill,) 561.

The uniform practice here has been to admit such evidence in an action for an escape, for the purpose of proving the indebtedness of the original defendant, to the same extent as if the suit were against him; and we are not satisfied with the reasons which have been urged for qualifying the rule as it has hitherto been understood and acted on, which is plain, intelligible, and in our opinion just, so as to make the admissibility of such evidence to depend on the time of the declarations or acts of the debtor; although that circumstance may be proper to be considered, in determining the weight to which they are entitled. The declarations of Ruperts, and the record of the judgment against him, which constituted admissions of an indebtedness to the plaintiff were therefore properly received.

The defendant next claims that the original writ against Ruperts, in his hands, was void, because it did not show that the city court had jurisdiction of the cause of action. ‘If that process was void, it would constitute a defence in this suit; if, however, it was only erroneous, the defendant could take no advantage of it. 1 Sw. Dig., 543, and cases cited.

The only averment on this subject is the one in the conclusion of the declaration, that “ the said cause of action arose in the limits of said city since its incorporation.” It is insisted that it is not sufficient that it may be inferred, from this allegation, that all of the facts constituting the cause of action took place within the limits of the city, but that it should appear, by express averment, that such was the case. Although the technical rules of pleading would require the mode of averment suggested by the defendant, and the statement in this case was so loose and inartificial that it would not have been sustained on a special demurrer, we are of the opinion that it substantially imports what the defendant claims should have been alleged in terms; that it is a defective statement only, rather than the entire omission of a material fact, and would therefore be good on general demurrer; and hence that it is sufficient to show jurisdiction. The averment that the cause of action arose in the limits of the city, is only a very informal and comprehensive statement of the fact that all of the facts constituting such cause of action, took place there. That fact could not be true if they occurred elsewhere. We can not, moreover, doubt that this averment was amendable, and that conclusively shows that the writ was at most erroneous, and not void.

We do not think that the defendant has any just ground of exception to the charge given in this case. Without inquiring whether, in an action against an officer for an escape on mesne process, he is entitled to the same indulgence, in regard to the course required of the officer having the original execution, as the law extends to bail, the former certainly can not complain if he was placed on as favorable ground as the latter; and that was the case in the present instance. It is clear that the principles laid down in the charge as to the conduct of such officer, are those upon which it is settled that the liability of bail in an action against him would depend, and that bail would have been subjected on the facts found by the jury under that charge. Fitch v. Loveland, Kirb., 380. Collins et al. v. Cook, 4 Day, 1. Edwards v. Gunn, 3 Conn., 316.

The claims of the defendant, that a demand should have been made with the execution on the defendant, and that he should have known that the execution was in the hands of the officer, are plainly without foundation. Nor is there any ground for the claim, that upon the facts stated in the indorsement of the officer on the execution, and in the certificate of the clerk of the court of its return, the court should have instructed the jury that the conduct of the officer was fraudulent toward the defendant, and deprived the latter of an opportunity to surrender the body of Ruperts. Whether the officer conducted fairly and used due diligence to arrest Ruperts, and returned the execution within a reasonable time, were questions of fact, to be determined by the jury, and not by the court, and were properly treated as such. Edwards v. Gunn, supra.

There was, moreover, no proof or claim that the defendant had ever made, or attempted to make, any surrender of Ruperts ; and no tender of him having been made, the defendant is not in a situation to complain that the execution was prematurely returned.

We do not, therefore, advise a new trial.

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

New trial not advised.