author: Storrs, C. J.

text:
    Sherwood vs. Stevenson.
    The action of scire facias against a garnishee, is not an original action, but a proceeding auxiliary to, and instituted for the enforcement and collection of, the judgment in the original suit on which it is founded.
    Therefore, where a city court, the jurisdiction of which is limited to cases where at least one of the parties resides, and the cause of action arises, within the city, has rendered judgment in a suit of foreign attachment properly brought before it, it has jurisdiction also of the proceeding of scire facias founded thereon, although.the demand upon the garnishee on the execution, and his refusal to pay over the moneys in his hands, constituting an essential part of the cause of action, may have occurred without the limits of the city.
    Jurisdiction over the action of scire facias in such a case, depends less upon the laws prescribing the jurisdiction of the court, than upon the effect to be given to the statute of foreign attachment.
    And in determining that effect, with reference to the question of jurisdiction, the rule that nothing is to be presumed in favor of the jurisdiction of an inferior court has no application, that rule being one of pleading only; while the effect to be given to the statute depends on ordinary principles of construction.
    A plea to the jurisdiction of the court, and a plea in abatement of the writ for matters consistent with the jurisdiction, are in their nature repugnant, the one denying and the other impliedly admitting jurisdiction, and where pleaded together, the latter, which in the order of pleading is a later plea, supersedes the former.
    A., residing within the city of Bridgeport, brought to the city court of that city, of the limited jurisdiction above stated, a factorizing suit against B. as defendant, and C. as garnishee, both B. and C. residing without the city, and the declaration not alleging that the cause of action arose within the city. Both B. and C. suffered a default, and judgment was rendered for the plaintiff. Demand was made on the garnishee, without the limits of the city, and an action of scire facias instituted against him in the city court; to which he pleaded, at the same time, to the jurisdiction of the court, and in abatement of the writ for an informality in the issuing of the same. The court overruled the former plea, and found the allegations of the latter untrue. He then moved that the cause be erased from the docket for want of jurisdiction, which motion being denied, he pleaded to the merits, and judgment was rendered against him. He then brought a writ of error to the superior court, assigning as error, that it did not appear by the declaration in the scire facias, that the cause of action therein arose within the city, or that the court had jurisdiction of the case. On a motion in error from the judgment of the superior court, affirming the judgment of the city court: Held, 1. That the proceeding in the original action, if the cause of action was within, the jurisdiction of the court, was effective as an attachment of the debt due from C. to B. under the statute of foreign attachments, for the purpose of appropriating the same to the payment of the judgment recovered.

      2. That if the court had jurisdiction of the original proceeding, it had also jurisdiction of the action of scire fpcias founded thereon. 3. That though the omission, in the declaration in the original action, of the averment that the cause of action arose within the city, was a fatal defect, as showing want of jurisdiction, if it had been properly taken advantage of, yet the omission, in the declaration in the scire facias, of a like averment as to the cause of action in the original suit, did not show a want of jurisdiction in the court over the latter action, but only rendered the cause of action insufficient, of which advantage could be taken, (the court noticing no errors not specially assigned,) only by assigning the insufficiency of the cause of action, and not the want of jurisdiction, as the error. 4. That the plea to the jurisdiction was properly overruled, even supposing it to be sufficient in itself, as by pleading in abatement of the writ, the defendant had waived it. 5. That the motion to erase from the docket was properly denied, since the action of scire facias appeared sufficiently to be within the jurisdiction of the court.
    The city court, on the trial of the action of scire facias, having been held by the recorder and one alderman only, while the city charter provides that the court shall consist of the recorder and two aldermen, and the fact appearing on the record of the judgment and being specially assigned as error, — it was held, that while it was unnecessary for the record to state the names and number of the judges who tried the case, and therefore questionable whether such statement constituted any part of the record, and while the judgment might be sustained by the intendment, to the contrary of which nothing appeared, that it was not possible to supply another judge; yet that the plaintiff in error, by submitting to the action of the court, without taking exception at the time, had waived his right to object to the mode in which it was constituted; the objection being to the mere organization of the court, and not to its jurisdiction, and therefore a proper subject of waiver.
    This was a writ of error brought to the superior court for the county of Fairfield, to reverse a judgment of the city court of the city of Bridgeport, in a proceeding of scire facias brought by the defendant in error against the plaintiff in error.
    The original judgment on which the proceeding of scire facias was founded, was rendered by the city court in a suit brought by the present defendant in error against one Franklin Sherwood, of Fairfield, in said county, as defendant, and Fanny Sherwood, the present plaintiff in error, also of said Fairfield, as garnishee. The plaintiff was described as residing in the city, but the cause of action was not described as having accrued within its limits. Both defendant and garnishee suffered a default.
    By the charter of the city, sec. 10th, the jurisdiction of the city court is limited to cases where the cause of action arises, and at least one of the parties resides, within the limits of the city.
    To the action of scire facias, the defendant had pleaded, at the same time, 1st, to the jurisdiction of the court, that the cause of action had not accrued within the limits of the city; and 2d, in abatement, that the writ was not taken out from the clerk of said city court, and was not signed by him by his name and style of office, as it should have been. To the first plea the plaintiff demurred, and traversed the second. The court held the plea to the jurisdiction insufficient, and found the allegations of the plea in abatement untrue, and ordered the defendant to answer over. The defendant then moved that the cause be erased from the docket, for want of jurisdiction apparent on the record, which motion was denied ; and the defendant thereupon pleaded that she was not indebted to the said Franklin Sherwood at the time when the factorizing service was made upon her, upon which an issue was closed to the court, which was decided against the defendant, and judgment rendered for the plaintiff.
    It appeared, by the record of the judgment of the city court, that the court was holden at the time of the trial and judgment, by the recorder of the city and one alderman. The charter of the city provides that the court shall consist of the recorder and two aldermen.
    The assignment of errors in the writ of error was as follows : 1st, That it did not appear by the declaration in the scire facias, that the cause of action therein arose within the city, or that the court had jurisdiction of the cause. 2d, That the plea to the jurisdiction was improperly overruled. 3d, That the motion that the cause be erased from the docket, was improperly denied. 4th, That the city court was not legally constituted, and therefore could not legally render the judgment.
    The superior court, at its session in the county of Fair-field, in March, 1856, affirmed the judgment of the city court, and the plaintiff in error brought the case before this court by motion in error, assigning as error the decisions of the superior court in affirming the errors assigned in the writ of error.

      Siurges, for the plaintiff in error.
    I. The city court had not jurisdiction of the cause, and erred in overruling the plea to the jurisdiction.
    1. By the charter of the city, jurisdiction is given to the city court, only where the cause of action arises within the city. Charter, sec. 10. Private Acts, vol. i., p. 356. The cause of action is not merely the judgment recovered against the original defendant, but the indebtedness of the garnishee, the service of the attachment on her, demand on her with the execution, and her refusal to pay. Douglas v. Forrest, 4 Bing., 686. The proceeding by foreign attachment is, as to the garnishee, a mere attachment of a debt or goods in his hands. Rev. Stat., tit. i., sec. 229. See also ed. 1808, p. 61. The law which now authorizes a disclosure on the original process, has not altered the character of the proceeding. The proceeding is in rem, and the situs of the debt is the place where the debtor resides. 10 Mass., 343. 21 Pick., 263. 15 Pick., 445. 22 Conn., 248, 257. Story, Confl. Laws, secs. 383, 539, 549. 1 Com. Dig., Abt. D. 1 Ld. Raym., 346. The proceeding is borrowed from a custom of London, 1 Sw. Dig., 584. By that custom, the garnishee must reside within the city. 4 Man. & Grang., 933. 3 Ad. & EL, N. S., 802. 7 Eng. L. & Eq., 340. The whole cause of action must arise within the jurisdiction. 1 Root, 282. 22 Eng. L. & Eq., 148. 29 id., 269, 280, 426. 1 Saund., 73. 1 Sw. Dig., 606. 2 Bing., 213. Kirby, 27. 4 Conn., 376. 1 Seld., 106, 164. 4 id., 254, 260. It is in effect a suit by the defendant in the name of the plaintiff. Drake’s Attach., 523. The original defendant may sue the garnishee, subject to the rights of the plaintiff in the foreign attachment. Hicks v. Gleason, 20 Verm., 139.
    2. The city court is an inferior court. 1 Sw. Dig., 606. 13 Ad. & EL, N. S., 1. Nothing issuable done out of the jurisdiction can be tried. Com. Dig. PL, S. 15. 3 Comst., 132.'- And when a question arises on trial, of which the court has not jurisdiction, it is ousted of its jurisdiction altogether. 16 Eng. L. & Eq., 232. 7 id., 455. 1 T. R., 552.
    3. A scire facias is an action, and may be pleaded to, like any other action. Coke Lit., 290 b., 291 a. 1 T. R., 268. 2 id., 413. 6 John., 106. 2 Ld. Raym., 1048,1252. 1 Hill, 339. 1 Brod. & Bing., 381. Com. Dig. PI., 3, L. 3. 13 Maine, 36. 2 Saund., 6,71. 6 Conn., 59, 62. 9 Cow., 227. 5 Cranch., 185. Defendant may plead in abatement or bar. Com. Dig. PL, 3, L. 10,11. 11 Ad. & EL, 179. 1 Sw. Dig., 754. 2 Kern., 156, 164. In scire facias against bail, the latter may attack the judgment. 4 Cow., 457. The law as to bail and garnishee is the same. 4 Cush., 420. 1 Root, 557. Com. Dig. PL, E., 18, & 2 W., 12. 9 Cow., 227.
    II. The declaration must allege that the original cause of action arose within the jurisdiction. 3 Comst., 192. 2 Seld., 176, 179. 9 Wend., 233. The legal presumption is against the jurisdiction, and it must be pleaded. Gould PL, 233, 238. 1 Chit. PL, 475. 16 How., 104.
    III. Want of jurisdiction can not be waived. 3 Comst., 132, 137. 20 Conn., 343, 348. 6 Wend., 367.
    IV. The court was not so constituted as to acquire jurisdiction. All the triers must assemble, and the action of the majority controls. 1 Bos. & Pul., 229, 235. 6 John., 39. The presumption omnia rite actaf &c., does not arise till jurisdiction is shown. 13 Ad. & EL, N. S., 42. 7 Cow., 530, (note.) -21 Wend., 178, 182. 23 id., 324, 326. 3 Denio, 594. 4 id., 125. 2 Pick., 70. 11 Pick., 441.

      Treat and Blake, for defendant in error.
    I. The city court properly decided the plea to the jurisdiction insufficient, because, 1st. The scire facias being a judicial writ, furnished by statute to enforce a judgment, has properly no independent cause of action.” Ingram v. Belk, 2 Strobh., 207. 2d. If it has, it can only be the refusal of the garnishee to respond to the execution ; and this need not “ arise ” (i. e., occur) within the limits of the city. Rev. Stat., tit, i., sec. 230,

      II. The city court properly denied the motion to erase from the docket, because, 1st. Its allegations are untrue. All the statute requisites for the scire facias are set out in the declaration. 2d. The process is shown to be founded on the judgment rendered by the same court, in a jurisdiction exercised. Where the question of jurisdiction in a new and separate action is raised, there will be no intendment either for or against its own jurisdiction by an inferior court. But every court will intend, until otherwise alleged, that its own proceedings and judgments are valid, and will take notice of its own records. Especially the proceedings, judgments and records in the original cause. Bradford v. Bradford, 5 Conn., 127. These proceedings can not be impeached collaterally. Cross v. Hall, 4 Md., 426. Wight v. Warner, 1 Doug., (Mich.,) 384. Clark v. Holmes, 1 ib., 390. 3d. The court will not erase from the docket except for clear want of jurisdiction in fact, which fact must appear on the face of the record. The court will never go beyond the record on such a motion. Mere formal defects in the declaration, not absolutely inconsistent with jurisdiction, must be pleaded in abatement. 2 Sw. Dig., 612, 619. Saunders v. Denison, 20 Conn., 521.
    III. As to constitution of city court. 1st. A majority of the court is sufficient. Crone v. Daniels, 20 Conn., 331. 2d. If not, the plaintiff in error not having objected at trial, can not do it now. Selleck v. Sugar Hollow Turnpike Co., 13 Conn., 453. Wetmore v. Plant, 5 Conn., 541. Bowen v. Argall, 24 Wend., 496. Waterbury v. Darien, 9 Conn., 252. Dorman v. Turnpike Co., 3 Watts., 126. Bradley v. Steel, Hardin, 559. Reading v. Metcalf, Hardin, 535. Kincaid v. Higgins, 1 Bibb., (Ken.,) 396.
   Storrs, C. J.

This is a motion in error, brought to revise the judgment of the superior court, affirming the judgment of the city court of the city of Bridgeport, rendered in an action of scire facias, in favor of the plaintiff therein, (the defendant in error,) against the defendant, (the plaintiff in error,) to recover of the defendant the amount of a debt due from her to a debtor of the plaintiff; the declaration setting forth an attachment of such debt in the hands of the defendant, under our statute of foreign attachment, in a suit brought to said city court by the plaintiff against said debtor, the recovery of a judgment in that suit, and the requisite proceedings on the execution issued on that judgment, in order to render the defendant in said action of scire facias, liable to pay to the plaintiff the amount of said debt.

It being a rule, in this and the superior court, that on a writ of error, or motion in error, no matters of error or defects in the proceedings of the court below, relied on as a ground of reversal, shall be heard or considered by the court, excepting those which shall be specially assigned, (18 Conn., 572,) we shall, in revising the judgment of the superior court which is complained of, confine ourselves to a consideration only of the errors which were specially assigned in the writ of error brought to that court from the judgment of the city court.

The error first assigned is that the declaration in said action of scire facias is insufficient, in that it does not appear thereby that the city court had jurisdiction of said action, or that said cause of action arose within said city.

The first ground, on which the plaintiff in error attempts to sustain this claim, is that, by the charter of the city of Bridgeport, it is provided that its city court shall have jurisdiction only in causes where one of the parties resides, and the cause of action arose, within its limits; and that some of the facts constituting the cause of action on this scire facias, against the defendant therein, especially the demand of and refusal by her to pay the debt for which it was sought to render her liable as garnishee, took place, not in said city but in Fairfield, where she resided. This claim involves the question, whether on an action properly brought to said city court, against a defendant residing out of the limits of the city, a debt due to him by a person also residing out of those limits, can be attached and appropriated to the payment of the judgment recovered in such action, under our law of foreign attachment; for, as it can be so appropriated only by a proceeding by scire facias, returnable to the same city court, by the provisions of that law that remedy must fail in that case, if the court has not jurisdiction of that proceeding. As the jurisdiction of the other city courts in the state is also subject to the limitation which has been mentioned, this question becomes one of much importance.

We think that the claim of the defendant, on this point, is not sustainable.

That limitation of the jurisdiction of 'the city court was intended to apply only to original, primary actions brought to that court. If a proceeding by scire facias, to enforce one of its judgments, were such an action, there would be much weight in the objection that some of the essential facts which constitute the cause of action upon it, took place out of the limits of the city. That proceeding, however, is not one of that character. It is founded, indeed, upon an original and primary action and a judgment rendered on it, and is itself properly termed an action, and treated as such, sometimes being considered as an original action, and at others as an action in the nature of an original action ; but, although it is thus treated, it is really only a proceeding auxiliary to, and instituted by statute for the enforcement and collection of, the judgment rendered in the original action on which it is founded, by appropriating to the satisfaction of that judgment a particular species of the defendant’s property, which could not be reached by the ordinary process of execution, but which justice and the general policy of our law require should be made liable to his debts, equally with any other of his property.

It being a proceeding of this description, the jurisdiction of the city court over it, in the present case, depends, in our judgment, rather on the effect to be given to the statutes providing for the collection and enforcement of judgments, and particularly on that part of the statute of foreign attachment by which the proceedings in garnishment are for that purpose, instituted, than on the provisions of the charter of the city conferring jurisdiction on the city court, which, we can not but think, were designed rather to give to that court the power of determining the rights of the parties in the primary and original action to be brought to that court, than the particular mode by which its judgments should be enforced. The general statutes, providing for the enforcement and collection of the judgments of courts, were sufficient and ample as to the latter object; they are general and broad in their language, and are not limited to claims prosecuted in any particular court, and were, in our opinion, intended to be applicable as well to debts sued in the city court, and the judgments rendered upon them, as to those prosecuted and recovered in any other court.

If the means of collecting debts, provided by our law of foreign attachment, are not available to the fullest extent to suitors in our city courts, the benefits contemplated by the establishment of those courts would be essentially impaired. We can discover no reason why these courts, in this respect, should be more restricted in their powers or jurisdiction than others. The jurisdiction claimed for the city court by the defendant in error in this case, has uniformly been exercised by these courts without objection or question, ever since their first institution, the jurisdiction of all being given in substantially the same terms. Although, as to the construction of pleadings, it is a rule that nothing shall be intended by presumption to be within the jurisdiction of an inferior court, in the absence of averments showing such jurisdiction, and that therefore all the facts necessary to give jurisdiction to such a court must be expressly stated, there is no similar rule applicable to the construction of statutes, on which a question of the existence of jurisdiction arises; but, in their construction, the ordinary rule prevails, as in statutes on other subjects, that the intention of the legislature is to be ascertained by the language and reason of the law, in connection with its policy and design. On this ground we are, therefore, of opinion that the cause of action is to be deemed to have arisen within the city of Bridgeport, notwithstanding the proceedings of the officer against the garnishee (the plaintiff in error) without its limits.

It is also insisted, under the first assignment of errors, that it does not appear by the declaration on the scire facias, that the city court had jurisdiction of the cause of action set forth in said writ of scire facias, because it is not alleged therein that the note, on which the original action was brought in the city court, in which the plaintiff in error was factorized, was executed within the limits of the city of Bridgeport, which was confessedly necessary in order to give jurisdiction of that action to the city court. It is to be observed, that the objection here is not that, for the want of such allegation, it-did not appear, as it should have done, in the declaration in the original action in that court, that the note was executed in the city, and therefore that that court had not jurisdiction of that action. No such error is here assigned. If it had been assigned for error that the declaration on the scire facias was insufficient, for the reason that it does not thereby appear that there was such jurisdiction of the original action, we are unable to see how that objection could have been answered; for, if the city court had not jurisdiction of that action, its judgment in it would have been void and would have laid no foundation for an action of scire facias against the garnishee, and the declaration in the scire facias would have been insufficient, because it would have disclosed no cause of action against him.

The plaintiff in error would have prevailed on such an objection, simply for the insufficiency of the declaration in scire facias, on its merits, in not setting forth a fact which was indispensable to the creation of a liability on his part on such scire facias, viz., the prior recovery, in the city court, of a valid judgment. The declaration in the action of scire facias was demurrable, not because the city court had not jurisdiction in that proceeding, to determine whether a sufficient cause of action was disclosed therein, but because no such cause of action was set forth, for the want of an averment that that court had jurisdiction in the original action.

But the objection made on this assignment of errors is not that that court had not jurisdiction of such original action, or that the declaration in the action of scire facias is insufficient, but that that court had no jurisdiction of the action of scire facias; that is to say, had no right to determine whether the plaintiff therein had any cause of action against the defendant. The right to determine that question would presuppose, and, indeed, constitute jurisdiction. That that court had the right to determine that question, and therefore had jurisdiction of the action of scire facias, we have no doubt, and, indeed, results from what has been said on the preceding point. We can not think that the judgment in the action of scire facias was an absolute nullity, as it would be if, as is insisted, the court had no jurisdiction of that action. The declaration was fatally defective for the reasons before stated, and should have been adjudged so on demurrer; or on a writ of error the judgment might have been reversed for that defect: it was, however, not void, but only voidable, and was good until so reversed. But it is scarcely necessary to say that a court is not deprived or ousted of its jurisdiction in a suit, by the circumstance that the declaration does not disclose a good cause of action, and is therefore demurrable. The objection we are considering is, therefore, untenable.

The question on the second assignment of errors is, whether the city court properly overruled the plea to its jurisdiction. It appears by the record in this case, that together with that plea, and at the same time, a plea in abatement, properly so termed, that the scire facias was not taken out from, and signed by, the clerk of said court, as the law required, was pleaded by the defendant below; which first plea was demurred to, and the latter traversed, by the plaintiff. The first plea was overruled, and the facts alleged in t.he other found to be untrue, and the defendant was ordered to answer over, which was done, and the case was subsequently disposed of on a plea to its merits.

Without considering the sufficiency of the plea to the jurisdiction, if it had been pleaded by itself, and supposing that, in that case, it would be unexceptionable, it is quite clear that, between that plea and the plea in abatement, there was a manifest repugnancy, as the latter plea impliedly admitted the jurisdiction of the court, which the former denied. According to the established rules as to the mode and order of pleading, which disallow of repugnant pleas, and forbid a plea, by way of defense, which denies facts admitted by the defendant in his previous pleas, it was incompetent for the defendant, either to plead the two pleas to the jurisdiction and in abatement together, or to interpose his plea to the jurisdiction after he had pleaded that plea in abatement; although it would have been competent for him first to plead to the jurisdiction, and that being sustained, afterwards to plead the matter which he set up in abatement. A plea to the jurisdiction, although popularly termed a plea in abatement, and sometimes, for convenience, treated of among such pleas, and though the effect of sustaining either is substantially the same, is not, technically and properly, a plea of that character. By the order of pleading, a plea to the jurisdiction is the first plea to be interposed, and therefore it must precede a plea in abatement, because the latter impliedly admits jurisdiction, which the defendant is therefore afterwards precluded from denying. Hence the defendant below, if he had intended to rely upon a want of jurisdiction in the city court, should have pleaded only to the jurisdiction, and if that plea was overruled, then interposed his plea in abatement, instead of pleading, in connection with the first, the latter plea, by which the fact of jurisdiction denied in the first was admitted. There is an obvious incongruity in trying at the same time an issue or issues which both admit and deny that the court has jurisdiction of the case. The question of jurisdiction should be first determined. The effect of the plea in abatement in this case, as it admitted the jurisdiction of the court, was, in our opinion, to supersede or waive the matters set up in the plea to the jurisdiction; and the latter plea was therefore properly disregarded or overruled; and the authorities on this subject decisively sustain this conclusion.

If it is conceded, as is supposed in the third assignment of errors, that the denial of the motion to erase the case from the docket would, if erroneous, be a proper ground for the reversal of the judgment of the city court, it results from what we have said under the second assignment of errors, that it did not appear from the writ of scire facias or the declaration therein, that the court had not jurisdiction of that action or proceeding, and therefore that the motion to erase it was properly, denied.

The error last assigned is, that it appears from the record in this case that, when the judgment in question was rendered, the city court was not legally constituted, because there was then present, besides the recorder of the city, only one alderman, instead of two as the charter requires. It was clearly unnecessary for the record to state the names or the number of the judges who were present when the judgment was rendered, and it would be free from any objection if that part of it had been omitted. But if, which is very questionable, that statement is to be considered as properly a part of the record, we think that the objection founded on it is obviated by adopting the reasonable intendment — against which nothing appears — that it was not possible, as we can well conceive it might not have been, to supply another person who could sit as judge; in which case we are of the opinion that the court might legally be holden by the recorder and one alderman only. But, if another judge could have been supplied, we think further that the exception on account of his absence was one which could be waived by the parties ; and that their appearance before those judges who were present, and submitting to their action in the case, without objection, constituted such a waiver. The objection is not to the jurisdiction of the city court, which confessedly had cognizance of the action, but only to the manner in which it was organized in regard to the persons composing it. We think that the case, therefore, falls within the reason of those cases where it is decided that the parties may waive the absence of a part of a jury, or board of auditors, rather than of those where there was an entire want of jurisdiction in the court or tribunal, and in which it was held that it could not be conferred or waived by the consent or agreement of the parties.

The judgment complained of is therefore affirmed.

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

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Farmers and Citizens’ Bank vs. Payne.
    A bill of exchange is evidence against an acceptor, in favor of an endorsee, under the common count for money had and received.
    The case of Eagle Bank v. Smith, 5 Conn., 71, referred to and approved.
    The knowledge of a director of a bank, as to the object for which certain bills of exchange were delivered to a party applying to the bank for a discount thereof, such director not being present at the meeting <jf the directors at which such application was made and such bills discounted, and not having communicated his knowledge to any other director or officer of the bank, is not to be regarded as notice to the bank.
    This was an action of assumpsit, brought by the plaintiffs as endorsees, against the defendant as acceptor, of three bills of exchange, drawn on him by Nathaniel Greene, agent, and endorsed by John F. Greene.
    The declaration contained three special counts, and a general count embracing a claim for money had and received. The case was tried to the jury on the general issue, at the term of the superior court holden in the county of Fairfield, in October, 1856.
    On the trial, the defendant objected to the bills offered in evidence by the plaintiffs, under both the special counts and the general count, because of a variance claimed by him between the bills and the description thereof in the special counts, and because they did not support the general count. The court overruled the objection and admitted them under both the special counts and the general count. The details of the variance claimed to exist, are not important in the view of the case taken by this court.

      The plaintiffs offered evidence to prove that, before the transfer to them of the bills in suit, three other bills of about the same amount, of the same general form, and drawn and accepted by the same parties and payable to the order of John F. Greene, had been endorsed by said John, and transferred to the plaintiffs before their maturity, as security for a call loan” of $>8,700, made to him by the plaintiffs, he stating to them that said bills had been made and accepted for wool sold, and were fair business paper: that about sixteen days after, they requiring payment, and said bills being nearly due, said John stated to them that said wool was sold upon six months’ credit, and that said bills were drawn for a shorter time to enable, him to negotiate them at the bank; and that now, in order to carry out said agreement for six months’ credit, he had taken a new set of bills, (which were the bills in suit,) which he requested the plaintiffs to discount for him, and with the proceeds pay said loan, and pay over to him the balance in money, assuring them that said new bills were, like the first, good business paper, and would be paid when due ; and that the plaintiffs, relying upon said assurances, discounted said new bills upon the usual terms, and appropriated and paid over the proceeds as requested, and gave up said first mentioned bills to said John : that said loan was paid to said John in cash, and no part of it, or of the proceeds of said discounted bills, applied in payment of any antecedent debt due to said bank ; and that said bank in good faith received said bills as good business paper, and had no knowledge that any of them had been drawn, accepted or delivered to said John, for any specific purpose, or that he had not good right to dispose of them and the proceeds thereof at his pleasure.
    The defendant offered evidence to prove that N. Greene, who drew the bills in suit, was his agent for the-transaction of the business connected with certain mills owned by him, and before the bills in suit were drawn, had been accustomed, as such agent, to draw upon him bills of exchange for wool purchased for the use of said mills, which he had been accustomed to accept; that before the drawing of the bills claimed to have been taken by the plaintiffs as security for said loan, another set of three bills, amounting to about $10,000, had been drawn by said N. Greene as agent, upon the defendant, and by him accepted for the accommodation of said John F. Greene, and had been used by him for his own benefit; that said bills were drawn, accepted and delivered to said John, for the sole purpose of renewing and taking up said first set of bills, and upon his agreement that they should be appropriated to that purpose only; and that the bills in suit were in like manner drawn and accepted for the sole purpose of taking up said second set, (which said John represented to the defendant to be then held by one Howes,) and were delivered to him upon his agreement to appropriate them to that use and to no other, the defendant then supposing that said first set had been taken up and canceled : that neither the drawer nor acceptor of said bills received any consideration for drawing or accepting them, but did it solely for the accommodation of said John; and that he, in violation of his agreement, had fraudulently used said second and third sets of bills for his own benefit, leaving said first mentioned set outstanding and unprovided for; and that said John, when said bills were drawn, knew that said N. Greene acted as the agent of the defendant in drawing them, and that said John was, during all that time, and until after said last mentioned set were discounted, an acting., director of said bank. No evidence, however, was offered to prove that he ever communicated to any other director, or to any officer or agent of said bank, his knowledge of the purpose for which said bills had been drawn and accepted, or any notice that they were delivered to him for any specific purpose whatever.
    The defendant claimed that notice to the said John F. Greene, he being a director of said bank, was notice to said bank, and prayed the court to charge the jury that if they should find that the bills in suit were in fact delivered to the said John F. Greene for the specific purpose claimed by the defendant, and were transferred to the plaintiffs by him, in violation of his duty in regard to said bills, and that he was then a director of said bank, the verdict should be for the defe ndant.

      The court charged the jury that in negotiating with the plaintiffs for the transfer of the bills to them, said John F. Greene was to be considered as a party acting for himself, and not for said bank, or as a director or agent thereof, and that the plaintiffs were not to be charged with the knowledge possessed by him only, unless that knowledge was in fact communicated to some other officer or agent or director of said bank, acting in its behalf in that transaction. And that if the bills in suit were, as the defendant claimed, drawn, accepted and delivered to the said John F. Greene for the purpose of renewing or taking up other outstanding bills accepted by the defendant, and were misappropriated by him in fraud of the defendant, by procuring them to be discounted, or otherwise appropriating them or the proceeds thereof to his own use, leaving the old bills outstanding and unprovided for, and the plaintiffs knew or had notice of such misappropriation, then they were not entitled to a verdict; but that without such notice or knowledge, such misappropriation constituted no defense to this suit.
    The jury returned a general verdict for the plaintiffs, and the defendant moved for a new trial for a misdirection, and for error in the admission of the evidence objected to.

      Dutton and Warner, in support of the motion.
    1. If the plaintiffs knew that the bills were delivered to John F. Greene for a specific purpose, and were negotiated by him in violation of his agreement, they clearly can not recover. Chit. on Bills, (12th Am. ed.,) 80. Story on Prom. Notes, sec. 190. Denniston v. Bacon, 10 John., 198.
    2. If at the time they were taken by the bank, John F. Greene was an acting director of the bank, his knowledge of the facts was notice to all the directors, and sufficient to charge the bank with the knowledge. 1 Pars. on Cont., 66. U S. Bank v. Davis, 2 Hill, 451. North River Bank v. Aymar, 3 Hill, 262. The court erred in its charge to the jury on this point, and in not submitting to them exclusively the question of fact involved.
    3. The bills do not answer the description of them given in the special counts, and are not admissible in support of the common counts. Chit. on Bills, (12th Am. ed.,) 560, 579.

      Hawley and Beardsley, contra.
    1. The plaintiffs are not chargeable with the knowledge of John F. Greene with regard to the bills discounted by them. Ang. & Ames on Corp., sec. 306, 308. Washington Bank v. Lewis, 22 Pick., 24. Commercial Bank v. Cummingham, 24 Pick., 270. Housatonic Bank v. Martin, 1 Met., 294. Hartford Bank v. Hart, 3 Day, 491. Brush v. Scribner, 11 Conn., 388. Fairfield Co. Turnpike Co. v. Thorp, 13 Conn., 173. Butler v. Cornwall Iron Co., 22 Conn., 335, National Bank v. Norton, 1 Hill, 578. North River Bank v. Aymar, 3 Hill, 274.
    2. The bills are evidence under the money counts. Eagle Bank v. Smith, 5 Conn., 71. Rockefeller v. Robinson, 17 Wend., 206. Tatlock v. Harris, 3 T. R., 174. Martin v. Miller, 4 T. R., 320. Pierce v. Crafts, 12 John., 90. Ainslie v. Wilson, 7 Cow., 662.
   Storrs, C. J.

It is unnecessary to examine the point made by the defendant on the trial, that the bills of exchange offered in evidence by the plaintiffs, were variant from those described in the special counts of the declaration, because we are of the opinion that the plaintiffs were entitled to recover, on the facts claimed to have been proved, under the general count, which embraced a claim for money had and received. Whatever may have been the decisions on this point elsewhere, (and there is much confusion in the cases on the subject,) we consider it to be settled, in this state, by the case of The Eagle Bank v. Smith, 5 Conn., 71.

As it is conceded that if the bills in question in this - suit were drawn, accepted and delivered to John F. Greene for the purpose claimed by the defendant, and were fraudulently appropriated by said Greene to a different purpose, the plaintiffs, if they had notice of such misappropriation when they discounted them, were not entitled to recover, the remaining question on this motion is, whether the plaintiffs are chargeable with such notice. The defendant claimed to have proved, and it must therefore be taken to be true, that Greene was an acting director of the plaintiffs’ bank when these bills were discounted by the plaintiffs, and for a period previously, extending back to the time when the paper was received by the plaintiffs, out of which those bills originated. No evidence was offered to prove that Greene was present at the meeting of the directors of the bank, when any of the notes in question, or of those out of which they originated, were received or discounted by the plaintiffs; and it must therefore be taken that he was not present at any of those meetings, since, if it were otherwise, it was a fact for the defendant to show. Nor was there any evidence offered to prove that Greene ever communicated to any other director, or to any officer or agent of the bank, any knowledge of the purpose for which any of the said bills had been drawn or accepted, or delivered to him, or any notice that they were made or delivered to him for any specific purpose whatever ; and it must therefore be also assumed that he never made any such communication, as there is not any presumption that he would do so, unless it was while the directors or officers of the bank were officially engaged in its business, and he was not present when any business in relation to the bills in question was transacted by the plaintiffs.

Under these circumstances, we are clearly of the opinion that the knowledge of Greene, in regard to the object and appropriation of the bills in question, is not to be considered as the knowledge of, or as notice to, the plaintiffs. The general rule on this subject is that notice of a fact to an agent is notice to the principal, if the agent has knowledge of it while he is acting for the principal in the course of the transaction which is in question. And this rule is applicable equally to corporations and natural persons. Hence, knowledge of a material fact imparted by a director of a bank to the board of directors at a regular meeting of them, is obviously notice to the bank. It has also been decided in some cases, that notice to either of the directors, while engaged in the business of the bank, is notice to the bank. Whether, however, the knowledge of a director, who is present at a meeting of the board of directors, when paper is discounted on his application and for his benefit, is, under the rule which has been stated, to be imputed to the bank, is a question on which there is a diversity of opinion, but one which it is unnecessary here to determine. Whether such knowledge should be treated as notice to the bank in that case, would probably depend on the question whether the director should be deemed to have been acting as a director and in behalf of the bank, when the transaction took place. And it is upon that point only, that the difference of opinion which has been alluded to, arose. In all of the cases where the question was whéther the principal was to be affected by the knowledge of his agent, the latter possessed such knowledge while he was acting for the former. There is none in which it has been held, or indeed claimed, that such knowledge would have that effect while he was not so engaged, nor can we conceive any good reason for the adoption of such a principle. In The Bank of the U. States v. Davis, (2 Hill, 451,) where it was claimed that the director was not acting as such in behalf of the bank while he had the knowledge by which it was sought to be affected, Ch. J. Nelson, in giving the opinion of the court, admits that, if that was the fact, such knowledge would not operate as notice to the bank; and for this he gives a most sensible and satisfactory reason. He says; “ I agree that notice to a director, or knowledge derived by him, while not engaged officially in the business of the bank, can not and should not operate to the prejudice of the latter. This is clear from the ground and reason upon which the doctrine of notice to the principal through the agent rests. The principal is chargeable with this knowledge for the reason that the agent is substituted in his place, and represents him in the particular transaction ; and as this relation, strictly speaking, exists only while the agent is acting in the business thus delegated to him, it is proper to limit it to such occasions.” This, in our opinion, is a correct principle, and has been often recognized. See Angell & Ames on Corp., § 305, 306, 307. Story on Agency, § 140 and notes. North River Bank v. Aymar, 3 Hill, 262. Louisiana State Bank v. Senecal, 13 Louis., 525. H. & Lee Bank v. Martin, I Metc., 294. Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige, 127.

Although it is obvious, it should perhaps be remarked, that the question involved in this case, is only how far a corporation is affected by the knowledge of one of its directors, when he has no authority to act for it, excepting what is derived from the mere fact of his being such a director, and does not apply to one where some special authority is conferred on a director, other than what he would have by virtue of his being such, in which case his knowledge, while acting under such special authority, would affect his principal to the same extent as that of any other agent acting in the business in which he is employed. Here there was no claim of any such special agency.

On the ground, therefore, that Greene was not present at the meeting of the directors, when the bills here in question were discounted, and never communicated to any of the directors or officers of the bank any knowledge in regard to them, we are of the opinion that a new trial ought not to be granted, and so advise the superior court.

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

New trial not advised.


author: Hinman, J.

text:
    Green vs. Farmers and Citizens’ Bank.
    Service of a process of foreign attachment on a person temporarily within the state at the time of such service, hut residing without the state, is not effectual as an attachment, under the statute with regard to foreign attachments, of a debt due from him to the defendant in the suit.
    This was a process of foreign attachment against the Farmers and Citizens’ bank of Long Island as defendants, and Thatcher S. Payne as garnishee, brought to the superior "court for the county of Fairfield, at its session in December, 1856.
    The plaintiff was described in the writ as residing in the state of Rhode Island, the said Payne as residing in the state of New York, and the defendants as a body corporate by the laws of the state of New York, and located and doing business in said state. It appeared by the officers’ return, endorsed on the writ, that service was made on the said Payne at Danbury, in said Fairfield county, by leaving with him an attested copy of the writ and citation; and that no legal service was made on the defendants.
    The defendants, at the first term of the court, moved that the case be erased from the docket for want of jurisdiction in the court, they appearing for that purpose only; upon which motion the court found the residence and location of the parties to be as stated in the writ, both at the time of the issuing of the writ and of the service of the same; and that the said Payne was only transiently within the state, when the copy was left with him in service. The court also found that the defendants had, at the time of such service, a suit, founded on contract, pending in the superior court for the county of Fairfield, against the said Payne, and that the property of said Payne was held by an attachment in said suit, to secure any judgment that might be recovered therein.
    Upon these facts, the court reserved the question arising upon the motion for the advice of this court, the parties agreeing that it should be considered and determined in the same manner as if presented by a plea to the jurisdiction of the court.

      Hawley and Beardsley^ in support of the motion, contended,
    that the court had no jurisdiction, because, while no service was made on the defendants, the garnishee was not subject to the process ; that the statute intended to make only residents of the state subject to the process, as there would be no means of pursuing the ulterior proceedings against a garnishee who resided in another state; citing Sto. Conf. of Laws, sec. 547. Tingley v. Bateman, 10 Mass., 343. Hart v. Anthony, 15 Pick., 445. Nye v. Liscomb, 21 Pick., 263, and Lovejoy v. Albee, 33 Maine, 414, and referring to Rev. Stat., tit. L, secs. 229, 230, 231, 237, 238, and act of 1852 on same subject, sees. 2 and 3.

      Hutton and Loomis, contra, contended,
    That the case came within the language of the statute, and that there was nothing to give it the limited application claimed ; that the objection as to the difficulty of pursuing ulterior proceedings against a non-resident garnishee was too broad, inasmuch as a resident garnishee could remove from the state after service on him, and thus equally escape the jurisdiction of the court; and that if, in ordinary circumstances, a debt due from a non-resident could not be so attached, yet that here the defendants, by suing Payne in our courts, for the very debt that the plaintiff has attached, have located it in this state, and brought it within our jurisdiction ; referring to Rev. Stat., tit. i., secs, 14, 229, 230, 238, and act of 1852, as to foreign attachment.
   Hinman, J.

The parties in this ease are neither residents nor citizens of the state, and the defendants not having been served with process, the court obviously has no jurisdiction over the case for any purpose, unless a copy of the writ which was left with Thatcher T. Payne, as the attorney, agent, factor, trustee and debtor of the defendants, had the effect to attach any property there might be in his hands, belonging to the defendants, or any debt due from him to them. But Thatcher T. Payne was also a resident citizen of another state, and was only temporarily and transiently here at the time the copy was left with him; so that the question is whether, under our foreign attachment process, such service is sufficient to enable the court to hold jurisdiction of the case, for the purpose of enabling the plaintiff to avail himself of any property in Payne’s hands, or any debt due by him to the defendants, in order to satisfy his claim against them. *

The plaintiff claims that his case is within the letter and spirit of our statute in respect to foreign attachments. That statute provides, that “ whenever the goods or effects of a debtor are concealed in the hands of his attorney, agent, factor or trustee, so that they can not be found to be attached, or where debts are due from any person to a debtor, any creditor may bring his action against such debtor,” &c. Rev. Stat., tit. i., sec. 229. This language, construed without any limitation to the meaning of the words, is undoubtedly comprehensive enough to cover the claim made by the plaintiff. But it appears to us very apparent that such was not the meaning of the legislature. The legislature were providing for the attachment of property concealed in the hands of residents or citizens of the state, and of debts due from such residents or citizens, and not of non-residents. Property in the hands of our own citizens, and debts due from them, are within the jurisdiction of the legislature; but property in the hands of non-residents and debts due from them are not; and the legislature must be supposed to have intended to make a law that could be executed, and not one which would be inoperative. It is not to be presumed that a party residing out of the state, who has the property of a debtor concealed in his hands, will voluntarily bring it here, in order that it may be taken and appropriated in payment of the owner’s debts ; and if he does not, any judgment against it here is entirely nugatory, as no process of our courts can reach either the trustee or the property in his hands ; and it is quite certain that our legislature would not attempt that which they so obviously have no power to accomplish. Again, our legislature did not intend, in a matter of this sort, that the j urisdiction of our courts should depend upon the will of the garnishee in coming here, in order to give the courts jurisdiction over them; much less that it should depend upon the vigilance of a creditor, in being able to find him here transiently, and get a process served upon him before his departure from the state.

The debt of Payne, so far as it has any locality, is due in New York, where the creditor resides. In no sense has it any locality here, where neither the creditor nor debtor reside, and never had. And if the court should undertake to hold jurisdiction of the case, for the purpose of appropriating whatever may be due from him to the defendants for the plaintiff’s benefit, it would probably be treated as a nugatory act, by the courts of other states, where it is held that the trustee process will not lie against inhabitants of other states. Tingley v. Bateman, 10 Mass., 343. Mart v. Anthony, 15 Pick., 445. Nye v. Liscombe, 21 Pick., 263.

Our conclusion is, therefore, that the service on Payne, while he was transiently in the" state, had no effect to give the court jurisdiction over any debt due from him to the defendants. And as no service whatever was made upon the defendants, the court has no jurisdiction over the parties, and the case, consequently, should be erased from the docket of the court.

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

Case to be erased from the docket.


text:
    Winton vs. Meeker and others.
    The plaintiff having alleged in his declaration, that in consideration that he would accept the office of administrator of a certain estate, and proceed to the settlement thereof, the defendants promised that they would fully indemnify him for his services and expenses as such administrator, so far as the estate which could be made available should prove insufficient, and that he assumed said office and faithfully discharged all its duties, — it was held, that the plaintiff was bound to .prove a complete legal settlement of the estate, and that he was not excused from making an inventory and settling his administration account in the probate court, by the fact that the estate proved to be so small as not to warrant the expense.
    The contract proved on the trial, being one of indemnity only, it was held, that it would not support the common counts.
    Where an irrelevant question is put to a witness on cross-examination, his answer can not be contradicted by the party asking the question.
    Assumpsit. The plaintiff, in his declaration, alleged that before the first day of September, A. D. 1846, one Joseph Meeker, then of Westport, in this state, had died intestate, leaving certain estate on which no administiation had been taken on said 1st day of September; and that the defendants, desiring that the plaintiff should become administrator thereof, did then specially request him to become such administrator by legal appointment, and proceed to the settlement of said estate as such administrator, and did then and there, in consideration that the plaintiff would consent to do so, assume upon themselves and faithfully promise the plaintiff, that they would pay and satisfy him and fully indemnify him for all such proper services as should be rendered by him as such administrator, and all expenses, costs and charges which should be by him properly incurred in the discharge of his proper duties as such administrator, so far as the said estate, which could be made available for that purpose should prove insufficient for such payment, satisfaction and indemnification, when they should be thereafter requested ; and that in pursuance of said request and in reliance on said promise, he did, on the same day, consent to become such administrator upon being legally appointed such, and was afterward, on the same day, duly appointed administrator of said estate, and in all particulars duly qualified as such, and did then and there take upon himself the office of such administrator, and did thereafter take said estate into his possession as such, and proceed to discharge and did faithfully discharge in all particulars all his duties as such administrator, by collecting and realizing all of said estate which could be collected and realized, and properly disposing of the same, and did in so discharging his duties render services of the value of fifty dollars, and did for necessary expenses pay out seventy dollars ; and that the whole of said estate which could by all his exertions be collected and realized, and all that could by such exertions be made available-toward payment of his just allowance for said services and said payments and expenditures, amounted to the sum of twenty dollars only, leaving the sum of $100 still unpaid and due to him ; alleging notice to the defendants, a special demand, and their refusal to pay. The declaration contained also the common counts.
    The defendants pleaded the general issue, with notice that they should offer proof that the plaintiff did never discharge the duties of administrator of said estate as alleged in the declaration, and neglected to administer fully thereon, and neglected to settle his administration account in the court of probate.
    The case was tried to the jury at the term of the superior court holden in Fairfield county in December, 1856.
    On the trial, the plaintiff offered evidence tending to prove that before he took out letters of administration on the estate in question, he was solicited by the defendants to do so, and objected, unless they would agree to indemnify him against loss; that the defendants, claiming that there was property belonging to the estate, and wishing it investigated, to induce the plaintiff to become administrator, promised to make up the deficiency if there should not be property enough of the estate to pay him for his services and expenditures, and agreed to indemnify him against all expenses which should accrue in the settlement of the estate which he could not get out of the estate itself; that thereupon he took out administration, and procured the appointment of appraisers and commissioners to receive claims against the estate, and had a time limited by the court for the presentation of claims. The plaintiff also offered evidence that he made search for property belonging to the estate, and could find none but an old chest, worth about fifty cents, and a small note worth twenty dollars, that sum only having since been collected thereon by execution, the residue being uncollectible ; that the appraisers resided several miles from the place where said chest was, and that it would cost more than its value to inventory it.
    The plaintiff also exhibited in evidence his account for his services and expenditures as administrator, having applied in part payment thereof the above sum of twenty dollars. He also produced his account-book, in which the charges for his services and expenses were debited to the estate of the deceased.
    It was admitted that the plaintiff’s account had not been presented to the court of probate for allowance, or allowed by that court.
    The defendant requested the court to charge the jury that the contract of the plaintiff, as set forth in his first count as the consideration of the defendant’s promise, required a strict discharge by the plaintiff of all the duties of the administratorship, and must be proved to have been performed; and inasmuch as it was admitted that the plaintiff had returned no inventory and made no settlement of his administration account, he could not recover.
    The court did not so charge the jury, but instructed them that the words of the first count, setting forth the plaintiff’s agreement, had no such fixed legal meaning as necessarily to require a strict, technical discharge of all the duties of an administratorship; that the words were sufficiently flexible in their meaning to admit evidence of a contract, if such was made, to discharge the duties of administration with fidelity and substantial accuracy, and in a manner to accomplish such purposes as the parties had in view in causing administration to be taken out; and if such was in fact the contract, then the performance required ought to correspond with it, and need not be more strict and technical than was fairly contemplated by the agreement of the parties.
    The defendants claimed, on the trial, that the plaintiff became such administrator on his own solicitation, by their consent, but without being requested by them, and offered themselves as witnesses, and were heard in proof thereof. The plaintiff, for the purpose of repelling this claim, and to show that they had been solicitous to obtain some person to administer upon the estate, inquired of them whether they had not, before the plaintiff’s appointment, applied to Alva Gray, or to some other person, to take such administration ; to which inquiry they answered that they had never so applied to any person whomsoever. This inquiry and answer were made without objection. The plaintiff afterward offered the testimony of Alva Gray, that the defendants had applied to him to become such administrator, to which the defendants objected, on the ground that the contradiction related to an immaterial point; but the court admitted it.
    The plaintiff claimed to recover on the common counts, for so much of his services and expenses as the estate proved insufficient to pay, and requested the court to charge the jury that the evidence would support those counts. The court, however, instructed them, that upon the admitted facts in the case, the plaintiffs claim was primarily against the estate of the deceased, and that his claim upon the defendants was secondary, and upon them in the character of mere sureties upon the failure of the estate to furnish sufficient assets for his payment; that the relation of debtor and creditor upon which the common counts were founded, did not exist between the plaintiff' and defendants ; that the book of the plaintiff showed that the estate was regarded as the debtor, and that the engagement of the defendants was merely collateral; and that the plaintiff, therefore, was not entitled to recover upon the common counts, unless they could find that the defendants had hired him to act as their servant in the administratorship, so as to be entitled to charge his services directly to them.

      The jury returned a verdict for the plaintiff on the first count of the declaration, and the defendants thereupon moved in arrest of judgment, which motion the court overruled and rendered judgment for the plaintiff. The defendants thereupon filed a motion in error, and a motion for a new trial. The plaintiff also filed exceptions to the charge of the court as to his right to recover on the common counts. The motion for a new trial and bill of exceptions were allowed by the court, and the questions arising thereon were reserved for the advice of this court.
    Ferry, (with whom was Wilson,) for the defendants.
    1. Performance by the plaintiff of that which he agreed to do, is. essential to his claim to recover. He agreed to administer and settle the estate of the deceased ; but not having done this, the foundation of his action fails.
    But it is said that administration and settlement, as used in the declaration, arc not to be understood in their ordinary legal signification. But this is contrary to settled rules of pleading. 1 Chit. PL, 237, 238.
    The court, however, instructed the jury, substantially, that the plaintiff might recover without such performance, and that they had a right to consider the partial performance proved, as a sufficient compliance with the plaintiff’s agreement as set forth in the declaration. But the plaintiff' had neglected the first and most important duties of administration. Rev. Stat., tit. xiv., sec. 28.
    2. The defendants’ promise was to indemnify, “ so far as the estate should prove to be insufficient.” The settlement of the plaintiff’s administration account by the only proper tribunal, viz., the probate court, was necessary to ascertain the balance for which the defendants were to be responsible; but no such settlement has been made. And the defendant’s promise being merely to indemnify, they do not stand in the relation of debtors to the plaintiff, and can not be held liable on the common counts.
    3. The testimony of Gray was inadmissible, as the contradiction related to an immaterial point.

      Hawley, (with whom was Belden,) for the plaintiff.
    1. The character of the contract is to be regarded, and in ascertaining that, we must look at the object. That object was, to have an investigation into the condition of the estate by one clothed with authority to make it; to have the estate settled in legal manner, so far as necessary for the attainment of that object, and no farther; to do no more than should be necessary for the attainment of that object. Neither the law nor the contract required a nugatory and worse than nugatory act; the making utterly useless expenses for the defendants themselves to pay. Indeed, the making such expenses would have been a violation of duty to the defendants. An inventory and settlement are necessary only in reference to the ultimate disposition of the estate, and here was no estate to be disposed of. The contract is to pay for our trouble and expenditures, not such sum as should be allowed us by probate. Chit, on Cont., 74.
    2. There is a full consideration, the services and expenses. The contract was not to pay one already administrator, for his services, more than the law would allow. It was to pay him if he would become administrator, for his services, &c., if there was not estate enough to pay him. The principle relied on by the defendants, applies only to cases of promises to pay to one already clothed with office, or in an employment, and already liable to perform certain duties for certain fees or wages, a sum for such performance of those duties greater than the fees or wages for which he is already bound to perform them. Chit, on Cont., 51, 52.
    3. If the plaintiff could not recover on the special count, he can on the common. The services were rendered at the defendants’request; the account with the estate was only a memorandum of those services. It was a mere promise to pay for the services and expenses, less the sum he should get from the estate. ®
    4. The testimony of Gray was properly admitted. It contradicted the defendants on a point material to the issue, and was admissible for the purpose of showing that the defendants were solicitous to procure some one to undertake the administration. Bridge v. Eggleston, 14 Mass., 245. 2 Phil. Ev., (C. & H.,) 432. Sw. Ev., 153, 155.
   Hinman, J.

The plaintiff alleges in his first count, that in consideration that he would agree to become administrator on the estate of Joseph Meeker, deceased, by legal appointment, and as such administrator would settle the estate, the defendants assumed upon themselves and promised that they would fully indemnify him for all his proper services as administrator, and for all his expenses and charges incurred in the discharge of his said duties, so far as the estate of the deceased, which could be made available, should prove to be insufficient for his payment and indemnification ; and then, as the ground of recovery, he alleges that he has fully performed his part of the contract, and that the estate has proved insufficient to pay for his services and expenses, of which the defendants have had notice, and that they neglect and refuse to indemnify and pay him, &e.

The plaintiff proved that he took out administration under this agreement, and took certain measures as administrator in the progress of the settlement of the estate, but he failed to prove that he ever made any settlement of the estate; and the probate records show that no inventory of the estate was ever made, or that there was ever any settlement of the estate, or of his administration account with the court of probate ; and he now claims to recover on this count, without showing that he has administered and settled the estate; and the question is whether he can do so.

We see nothing in the contract itself, as the plaintiff has chosen to state it in this count, to excuse the performance of it on his part. He alleges such performance as the ground of his right of recovery; and it is obvious that so far as the acts to be done by him were in any sense material, they must be performed, or the whole foundation of his action fails. His agreement must be executed according to its legal effect, or he has no right to call for the indemnification promised him. Indeed, the character of the agreement was such as seems to render it impossible to know, with any legal certainty, what the deficiency of the estate, for his payment and indemnification would be, until the estate was finally settled, and his account, as administrator, was settled with the court of probate. If it was an object of the defendants to have the estate settled, it must be intended by it a legal settlement. The court below seem to have entertained the idea that the parties intended, by the settlement of the estate, merely such an investigation into its condition as to show with reasonable certainty what its condition substantially was, without requiring a legal settlement. If such was in fact the agreement, perhaps the plaintiff, on a count adapted to such a state of facts, might be able to succeed in his action. But we are satisfied that he can not, upon the contract, as he has stated it, in which he says he was to settle the estate, not merely to investigate its condition ; and to settle an estate, has as precise and definite a meaning as almost any other phrase. Surely it can not, in any sense, be said to be accomplished, so long as the administrator’s account is unsettled with the probate court. And as the plaintiff must recover upon the case as he has chosen to state it, we think the court was wrong in allowing the jury to find for the plaintiff upon any less proof than that the plaintiff had, in point of fact, caused a legal settlement of the estate. It is true the estate was very small, judging of it by such proof as was before the court, and might, probably, have been settled under the sixty-fifth section of the statute relative to the settlement of insolvent estates, at a trifling expense, and without the appointment of commissioners. But however this may be, we think some legal settlement of it was required to be proved in order to enable the plaintiff to recover on this count, and because the court charged the jury, substantially, that this was not required, we think a new trial should be granted.

The defendants were examined as witnesses in the case, and, on their cross-examination, they were asked if they had not applied to Alva Gray, Esq., or some other person, to take out administration on said estate; to which they'answered that they had never so applied to any person whatever. The plaintiff then was permitted to contradict this, by the testimony of Mr. Gray, though his testimony was objected to by the defendants. The object of examining the defendants on this subject is stated to have been to repel a claim that the plaintiff was solicitous to become administrator. But we do not see that this was a matter of any importance. The issue was not as to whether he was more or less willing to act as an administrator, but whether the defendants agreed to indemnify him for his charges and expenses for so acting. We are inclined to think, therefore, that as this point is stated in the motion, the testimony of Mr. Gray should have been excluded. There is no doubt as to the rule of law stated by Greenleaf, that if an irrelevant question is put to a witness, his answer can not be contradicted by the party who asked the question. And we do not see that the solicitation by the defendants, that Mr. Gray should act as administrator, tended at all to show that they also solicited the plaintiff so to act. It appears to us, therefore, that the inquiry of him should have been excluded.

The contract stated in the bill of exceptions appears to us, as it was held to be by the court, a contract of indemnity merely. There was no agreement to pay absolutely for the plaintiff’s services, and to repay to him his expenses; but the agreement was to pay so much thereof as the estate should prove insufficient to pay. The claim against the defendants, therefore, was in the nature of a claim against them as sureties for the estate. It was substantially a guaranty that the estate should prove sufficient, and as such did not show the relation of debtor and creditor, upon which alone the common counts are founded.

There was no error, therefore, in this part of the case; but for the reasons before stated, we advise that a new trial be granted.

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

New trial advised.