author: Ellsworth, J.

text:
    N. Sheldon & Co. vs. The Hartford Fire Insurance Co.
    /ín a policy of insurance, reference was made to a survey, in these words : “ Reference is had to survey No. 83, on file in the office of the Protection Insurance Company." The survey consisted of answers, given by the insured, to questions proposed by the insurers. Some of the questions were intended to draw forth a minute description of the premises to be insured, and others, to enable the insurers to estimate the degree and extent of the risk. Held, that the reference in the policy, to the survey, was not merely for a fuller description and identification of the premises to be insured, than was contained in the body of the policy, but was a proper reference, for the purpose of incorporating all the survey, as much as any part of it, into the policy, and that all the answers, applicable to the subject matter, were obligatory on the insured.
    Held, also, that the policy and the survey constituted the entire contract between the parties, and that, as there was no imperfection, or ambiguity in its language, evidence of parol representations, made prior to the issuing of the policy, could not be received, to explain and qualify the contract.

      ■When one of the interrogatories was,—“ Is there a watchman in the mill, during the night ?” to which the answer was,—There is a watchman nights,” the court were inclined to consider the answer not as a warranty, but as a representation material to the risk, to be substantially kept and performed.
    A party can not obtain redress, by motion in error, for a mistake of the jury in relation to a question which is properly before them.

      This was an action on a policy of insurance, to recover the sum of 7,000 dollars, insured against loss by fire,'on a woolen mill, stock and machinery, owned by the plaintiffs. The defendants pleaded the general(issue, with notice of special matter, to be given in evidence. The cause was tried at Hartford, April term, 1853.
    On the trial, the plaintiffs introduced in evidence the policy of insurance, on which the action was brought, the execution of the same being admitted by the defendants. It was also conceded,that the loss complained of, andfor which a recovery was sought, had occurred,"and exceeded, in amount, all the sums then insured, or purporting to be insured thereon, and that the fire which occasioned said loss, took place between three and four o’clock, on the morning of Sunday, the 8th of April, 1849, and while it was yet dark, and during the period covered by said policy. Reference was made, in said policy, to a survey, in these words: “ Reference is had to survey No. 83, on file in the office of the Protection Insurance Company, Hartford.” The defendants then introduced this survey in evidence, the caption of which was, “ Survey of a cotton or woolen mill, on which insurance is to be predicated.” The eighth interrogatory was as follows : “ Is there a watchman in the mill during the night ? Is there a good watch-clock ! Is the mill left alone, at any time, after the watchman goes off duty in the morning, till he return to his charge at evening!” To these questions, the plaintiffs made the following answers opposite thereto. “ There is a watchman, nights,—no clock. Bell is struck every hour, from 8 o’clock P. M., till it rings for work, in the morning.” The answer to the last question was, “ Only at meal times, on the Sabbath, and other days, when the mill does not run.”
    The ninth interrogatory was,—Is the dirty waste carefully removed from the mill, daily, and where is it placed ! Is batting made in the mill, and where 1 The answer opposite the first of these questions, was,—“ It is, and thrown into the river.” The answer opposite the second, was,—“ It is not.”

      The twenty-fourth interrogatory was,—“ How long has the machinery been running, and is it in good repair ? How many hands are there in the factory, and what proportion are men ? Answer, “ Not yet started ; can not tell; probably there will be from seventy to one hundred.” To the interrogatory, “ What amount is there now insured on the property, in what offices, on whose account ?” the answer was, “ Property not insured at all.”
    At the bottom of the survey, was the following letter.
    “Insurance Company, Hartford.
    “ Your application for insurance is received. Please give full and explicit answers to the interrogatories annexed, and fill the appropriate blanks in the above table, for valuation of buildings and machinery, on receipt of which, we will promptly advise you of the rate, at which this company will grant a policy thereon.”
    It was proved, that said survey was made, on or about the 8th day of September, 1848, and that Plunkett & Hurlburt, by whom said policy was countersigned, and who resided at Pittsfield, in the state of Massachusetts, were, at the date of said policy, and for a long time before and after, not only the agents of the defendants, for making insurances, but were agents for the like purpose, of the Etna and Protection Insurance Companies, respectively, of Hartford aforesaid. Two policies, bearing date the 11th day of September, 1848, each for the sum of $12,500, for the period of one year, commencing on said 11th day of September, 1848, at 12 o’clock, noon, and countersigned by said Plunkett & Hurlburt, as agents, were issued, one by said Etna, and the other by said Protection Company, and upon the same premises, in the application connected with said survey, requested to be insured, and covering in part, the same premises or a part thereof, purporting to be covered by the said policy of the defendants, and so far, in case of loss, made payable to the plaintiffs; both of which said policies were outstanding at the time of the date of said policy of the defendants, and of each of which said policies, said survey was made a part, and the statements therein contained were warranties. It was also proved, that, at the date of the defendants’ policy, said factory was, and for nearly six months then next preceding, had been, in operation, with a large number of laborers and operatives therein employed ; also that said factory building of the defendants, had been recently erected upon the site of another, which had shortly before been destroyed by fire. It was also conceded, that the plaintiffs were not accustomed to, and never had been in the habit of, keeping a watchman in or at their said mill, after 12 o’clock on Saturday night, until 12 o’clock of the Sunday night then next following, b,ut they were in the habit of keeping a watchman there, on all other nights, through the entire night. Their watchman, on the night of the fire by which said loss was occasioned, the same being Saturday night, left said mill and premises, a few minutes after 12 o’clock, and before said fire, and said fire occurred in the absence of any watchman.
    The defendants claimed, that said policy was based upon said survey, and that thé answers to the interrogatories therein contained, numbered eight and nine, were representations material to the risk.
    The plaintiffs claimed, that the reference to said survey, in said policy, was only for the purpose of describing and identifying the buildings containing the property insured, and not for any other purpose, nor with a view to adopt the answers and statements therein contained, or any of them, as part or parts of the contract between the parties, or as representations, upon which said policy of the defendants was based; that said policy was based upon the personal examination of Plunkett, one of said agents, and such information as was given to him, at the time such examination was made, which was the day but one next before the date of said policy, and made with a view to the issuing thereof, by one John S. Fenn, the superintendent of said manufacturing establishment, and the agent of the plaintiffs, and fully authorized by them to give any, and all such information, touching said risk, as might be required, or proper for the purpose of said insurance; that said Fenn did inform said Plunkett at the time of said examination, what were the usage and custom, as to keeping a watchman in or at said mill, and that the plaintiffs were not accustomed to, or in the habit of, keeping a watchman in or' at said mill, or establishment, at any time between 12 o’clock on Saturday night and 12 o’clock on the Sunday night next following, and that said agents well knew before, and at the time of, the date and issuing of said policy, that no watchman was kept in or at said mill, during said time; and the plaintiffs offered said Fenn as a witness, to prove the facts aforesaid.
    The defendants objected to the admission of said testimony, upon the ground, that the whole contract between the parties consisted of the policy and the survey, and was in writing ; that the survey, by the terms of the policy, either constituted a part of the contract, or was a written representation on which the same was based, and in either case, the stipulation therein, relating to the watch, although not a warranty, yet, if material, must be substantially complied with ; and that the parol evidence offered, and any parol evidence, was inadmissible, to vary the obligations of the parties, expressed in the policy and survey, especially in relation to the watchman, it being conceded, that the omission to keep a watchman, during a part of Saturday and Sunday nights, as above stated, was material to the risk.
    The defendants further claimed, that, inasmuch as the contract between the parties, consisting of the policy and the survey, was in writing, it was for the court, and not for the jury, to determine, whether the reference to the survey contained in the policy was or was not exclusively for the purpose of identifying the property, and whether the whole contract between the parties, as it existed at the date of the policy, was or was not contained in the policy and survey.
    But the court, for the purpose of enabling the jury to pass upon the evidence, admitted the sam e, pro forma.

    On the trial, the defendants introduced much testimony, which they claimed showed, that the policy had never been delivered to, nor accepted by, the plaintiffs, and that the premium thereon had never been paid, and consequently, that no valid contract existed between the parties.
    The plaintiffs claimed, on the other hand, that the testimony showed, that said policy had been delivered to them by the defendants, and that they had received and accepted the same ; that, as the agents of the defendants were authorized to fill up, countersign and deliver policies, at their discretion, and, upon the delivery thereof, became chargeable themselves, with the premiums to the defendants, whether they had been received or not, they necessarily had the power and authority to waive the fifth condition of the policy, which provided, that no insurance should be considered as binding, until the actual payment of the premium ; and if they had not, necessarily, this power, the jury might therefrom legally and rightfully infer and find, that they had such authority.
    The court instructed the jury, that, in order to render the policy binding upon the defendants, it was necessary that it should have been delivered, as such, by the defendants, and received by the plaintiffs; and that, whether there had been such delivery and acceptance, was a question of fact, for them to determine, upon the evidence before them.
    That, in relation to the premium, the defendants had a right to prescribe the conditions upon which they would issue their policies, and also to waive a strict compliance with the same, and that, if they had made an absolute and unqualified delivery of the policy, without requiring the payment of the premium to be thus paid, they could not afterward object to the validity of the policy, upon the ground that such premium had not been paid; that, if the jury should find, that there had been an actual delivery of the policy, and an acceptance of the same, by the plaintiffs, it was a question of fact, for them to determine, whether there had been a waiver of a strict compliance with the terms of the policy, in relation to the payment of the premium ; that it was competent for the defendants to make such waiver, by themselves, or by their duly authorized agents; that their agents, Plunkett & Hurlburt, who forwarded the policy to the plaintiffs, could not waive the payment, unless authorized so to do; and whether they had not authority, was also a question of fact for them to consider and determine.
    The jury having returned their verdict in favor of the plaintiffs, the defendants moved for a new trial, claiming that the court erred, in admitting the testimony objected to by them,and in not instructing the jury, as claimed by them.

      Perkins and Chapman, with whom was Deming, in support of the motion,
    contended, 1. That the policy and survey constituted one contract, and, the latter being in writing, parol evidence was inadmissible, in the same manner .as if both were written on one piece of paper.
    2. That, if any question existed, as tovthe purpose for which the reference to the survey was made, in the policy, or as to the admission of parol evidence to any specific point, it was to be decided by the judge, and not by the jury.
    3. That the survey was substantially a part of the contract, appears from the form and circumstances of the reference, the terms of the policy, and the terms of the survey; and although not strictly a warranty, so far as relates to the watch, the survey was to be substantially complied with. 10 Pick., 302. 2 Wood. & Min., 472. The Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. R., 34. 13 Wend., 92. Farmers' Ins. Co. v. Snyder, 16 Wend., 481. 2 Hall, 589. Houghton v. Mutual Ins. Co., 8 Mete., 114. 6 Cush., 440.

      4. That the rule, excluding parol evidence, applies to this case, and to all.contracts evidenced by two writings, as well as by one. 3 Cowen & Hills’ Notes on Phil. Ev., 1422. Alston v. The Mechanic's Insurance Co., 4 Hill, 340. Jennings v. Chenango Ins. Co., 2 Den., 75. 10 Pick., 230. Reading v. Weston, 7 Conn. R., 143. 8 Conn. R., 120. Palmer v. Gurnsey, 7 Wend., 248. 14 Mass. R., 15, 154. 1 Taun., 115. Richardson v. Churchill, 5 Cush., 425. 14 Mass. R., 106.
    5. That the policy was not delivered and accepted, and that there was no waiver of the premium.

      Hungerford and Toucey, contra,
    contended, 1. That the survey was no part of the policy, nor were the statements therein warranties ; in which particular, the case differs essentially from that of the Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. R., 19. The reference was made in the policy, to the survey, with a view merely of designating the building, in which the property insured then was, or was to be, and it was the duty of the court so to decide, if, as claimed by the defendants, it was to be decided as a question of law merely; but, in that event, if the court left it to the jury, the defendants have no ground of complaint. Jefferson Ins. Co. v. Cotheal, 7 Wend., 72. The Farmer's Ins. and Loan Co. v. Snyder, 16 Wend., 481, and authorities cited. Pawson v. Watson, Cowper, 785. Harlow v. Thomas, 15 Pick., 66.
    2. Admitting that it does not explicitly appear, upon the face of the policy, for what purpose the reference is made, parol testimony was admissible, to explain it, and to show the accompanying circumstances and the application of the reference. Cole v. Wendel, 8 John. R., 116. Ely v. Adams, 19 John. R., 317. Fish v. Hubbard's admr., and authorities cited. 21 Wend., 651. Cartlett v. Pacific Ins. Co. of New York, 1 Wend., 561. Hart v. Hammett, 18 Verm. R., 127. Peisch v. Dickson, 1 Mason, 10. Mechanic's Bank v. Bank

      of Columbia, 5 Whea., 326. Bradley v. Washington St. Boat Co., 13 Pet., 89. Brainerd v. Cowdrey, 16 Conn. R., 1. Baldwin v. Brown, 17 Conn. R., 201. Birch v. Depeyster, 2 E. C. L., 359. Smith v. Doe, 6 E. C. L., 208.
    3. Admitting that the statements in the survey are all referred to, as representations, (and it was admitted by the defendants, on the trial below, that they were no more,) parol testimony was admissible to show, that the defendants knew, as to the facts, and were not led astray, by any erroneous statement therein contained. Because, 1. A representation is no part of the contract, but a mere statement of a fact, or facts, operating, or supposed to operate, as an inducement to it, or the reverse; and a misrepresentation in insurance, is always classed under the head of fraud. Hughes on Insurance, p. 347; as to representations, 306,307; as to warranties, Alston v. Mechanic’s Mutual Ins. Co., 4 Hill, 329. 2. A written representation, being mere evidence of a fact, and no part of the contract, does not fall within the, rule, that parol evidence may not be admitted, to vary, control or contradict the writing. McRea v. Purmort, 16 Wend., 473.
    4. If the defendants knew, at the time of issuing the policy, the true state of the facts, even if there had been a misrepresentation in the previous statements, the previous representation would be entirely immaterial, as the defendants were in no wise led astray thereby. Stafford v. Newsom, U. S. Dig., vol. 10, p. 123, § 8. Clopton v. Cozart, 13 Sm. & Mar., 363.
    5. In the charge of the court, in regard to the delivery and acceptance of the policy, there was no error. Whether it was delivered and accepted, or not, was a mere question of fact, for the jury, if there was any evidence proper to be submitted to them ; and, so far as it regards the matter of fact, the jury have found, that the policy was delivered and accepted, which is final, unless the judge, in instructing them, mistook the law.
   Ellsworth, J.

Three questions are presented for our

consideration. 1. The propriety of introducing parol'testimony ; 2. The incompleteness of the contract of insurance ; 3. The non-payment of the premium. The two last are resolved chiefly, if not entirely, into questions of fact, for the jury, which we shall not discuss, since some evidence was properly before them, for their consideration. Jf they have mistaken its force, this motion will not give the defendants redress. As to the first question, we think there must be a new trial.

The defendants claim, that the entire contract has been reduced to writing; their part, in the policy of insurance ; the plaintiffs’ part, in the questions and answers in the survey, so called, referred to in the body of the policy. The defendants say, these stipulations and conditions, though not specifically l'epeated in the policy, are, byreference, made to constitute a part of the contract, as fully as if the survey had been incorporated at full length ; and that the survey being in writing, is so precise, and free from ambiguity, that parol testimony can not be admitted to explain or qualify it, without denying first principles. On the other hand, the plaintiffs claim, that the survey is not referred to, to express the stipulations obligatory on the insured, but for the purpose of designating and identifying the building in which the property is to be kept or manufactured, and that the true representation was, the statement made by John S. Fenn, to the agent. The plaintiffs make no question, that they have not kept the stipulatiqns and conditions contained in this survey, as it reads, and especially, that they have not kept a watch in the mill, as required in the answer to the eighth interrogatory ; as this court held was required, in the case of the Glendale Woolen Co. v. The Protection Insurance Co., in the 21st Conn. R., and that they have no case here, if the entire survey is held to be binding. Nor do they pretend, that this stipulation is unimportant, but they insist, that the survey is not their representation, and that the true representation was, as we have said, the statement made to said agent, by said Fenn, a short time before the issuing of the policy.

We are persuaded, the view taken .by the defendants’ counsel, is the true one. All the survey, as much as any part of it, is incorporated into the policy of insurance, and constitutes the conditions of the plaintiffs’ contract; and hence, every part, applicable to the subject matter, (and the eighth interrogatory certainly is,) is to be regarded as obligatory on the insured, whether the survey is to be held a warranty, as in the policy, or a representation material to the risk, to be substantially kept and performed, which latter is the character we are inclined to give it. We know no reason why a writing, intended to be a part of a contract, may not be held to be incorporated into it, by a proper reference, as well as by an extended recital. The reference in this case,- in our judgment, is of such a character. It was made, we think, to s,how what then were and should continue to be, the stipulations of the plaintiffs, touching the property insured. This the plaintiffs deny: they say it was for the description and identification of the factory building. Now it seems to the court, that this purpose was altogether unnecessary and superfluous, since it was already, stated in the policy, that the building was a factory building, occupied by the plaintiffs, situated in Glendale. -If more than this was wanted, as the ground assumed by the plaintiffs seems to allow,—viz., a more minute description of the buildings, it was, that the insurers might be better informed of the risk, so far as these particulars were important, in estimating the degree of it. But if so, are not the other parts of the survey equally important and obligatory, and especially the eighth interrogatory and answer ? It is incredible, that the insurers were so anxious to know more minutely the size and kind of material of the factory building, &c., and therefore incorporated the survey into the policy, to secure themselves to that extent, while other parts of the survey, touching the use and condition of the building, equally important, are passed over, as unworthy of attention ; such as the kind of business to be done in the mill, the mode of heating and lighting it, the position of water casks and forcing pumps, the kind of stoves and fuel used in the mill, the continuance of a watch by night, with a good watch-clock, to ensure constant watchfulness; the number of hours in the twenty-four,-the factory is run ; in what manner friction matches are kept in the mill; that no smoking or drinking of liquor is to be allowed on the premises ; whether the mill is run by the proprietor or tenants'; the existence of an organized fire company in the neighborhood, and the like. Who has a right to say, that any of these are not conditions and stipulations, meant to be incorporated into the policy, when the survey is referred to, generally, for information ? The directors of the company must have been beside themselves, not to have secured the company at all, in these and the like particulars; but it is so, if the survey is to be rejected.

When the plaintiffs admit, that, by the reference, the survey becomes a part of the contract, to the extent they allow in argument, we think they yield the question to.their opponents; as, after this, they can not make a sensible distinction between what they admit, and what the defendants claim.

Besides, if the survey is to be rejected by the plaintiffs, except to the extent admitted, where are we to look for any stipulations and conditions, on the part of the insurers ? or are there none ? Is this (a case of more than ordinary importance) an exception to all others ? Can we believe that, with the vigilance of the defendants, manifested by their requiring a printed survey of numerous and most discriminating questions, to be forwarded to the company, that they may have full information of anything material to the risk, they wanted only to know in this instance, the description and identification of the factory building, and for that purpose, made reference to the survey 1

It should be remembered, likewise, that this survey had been made some five months before the date of this policy, in behalf of these plaintiffs,and was sent by the very agents who issued the present policy, to the Protection Insurance Co., who had issued a policy upon that survey, payable, in case of loss, to the plaintiffs. There it remained, and reference was made to it, as there, and we can not doubt, it was meant and agreed by all parties, that it should be referred to, as the proper and true survey, in this case,

On the whole, viewing this survey as the contract of the plaintiffs, the case already mentioned, in the 2lst of Conn. R., settles the question; there, upon a kindred question, we held, that the eighth interrogatory and answer were a clear, certain and definite contract, not susceptible of ambiguity, and not open to parol proof.

If Mr. Fenn’s story, which is denied by the agent of the defendants, (and he made the contract of insurance, and issued the policy in pursuance thereof,) is true, then it is obvious, the policy and survey do not contain the true contract between the parties, and should have been amended; but this can have no effect in this case ; we take the writings as they are.

In this opinion, the other judges concurred, except Waite, J., who tried the cause in the court below, and was therefore disqualified.

New trial advised.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    McBride, Sheldon & Co. vs. The Protection Ins. Co.
    In a process of foreign attachment, the defendants in the principal writ, were described as “ Henry B. Anderson and Harvey Nickerson, partners under the name of H. B. Anderson & Co,;” and the garnishees were alleged to be the agents, factors, trustees and debtors of such defendants. After the service and return of the original writ, it was so amended, that the defendants were described as Harvey B. Anderson, Loyal C. Anderson and Hobart Nickerson, partners under the firm of H. B. Anderson & Co. The factorizing clause remained unchanged, and judgment was rendered therein for the plaintiffs. In a scire facias in said process, the defendants therein were alleged to be the debtors of the defendants, in the principal suit. It appeared, however, that the latter were, in fact, indebted to the said Harvey B. and Hobart, jointly, but were not indebted to the said Loyal C., either solely or jointly, with said other defendants, and that he was never a partner in said firm. Held, in such case, 1. that the original suit, so far as the garnishees were concerned, was a proceeding in rem only, against the debt due to the defendants, in such suit, at the time the copy of the writ was left with such garnishees in service, and that without the amendment, said Loyal C. would not be a party to the original suit, and such judgment would furnish no evidence of any indebtedness from the defendants to him, either alone or jointly with said Harvey B. and Hobart. 2. That the description of the defendants, in the scire facias, as the debtors of the defendants, in the principal suit, implied, that the former were the debtors of all those defendants jointly, and not of each, or a part of them. 3. That, whatever might be the effect of the amendment of the original writ, upon the defendants therein, no indebtedness was attached, or secured to respond to the judgment obtained thereon, except such as might be due from the present defendants, to all the principal defendants ; and as there existed only an indebtedness to Harvey B. and Hobart, ;two of said defendants, the plaintiffs had failed to prove a material allegation in their scire facias, and consequently could not recover.
    Whether the principal suit should be regarded as an action against a copartnership, by the company name, under our statute, authorizing amendments in such actions. Qu. ?

    Where it appeared, that, at the time of the purchase of the goods, which constituted the consideration of the claim, upon which the principal suit was founded, the said Harvey B. represented to the plaintiffs, that the firm of H. B. Anderson & Co. consisted of himself, the said Loyal C. and Hobart, but neither said Loyal C. nor Hobart had any knowledge of such representations, and in no way sanctioned the same; it was held, that, although the said Harvey B. was estopped from denying that Loyal C. was a partner in said firm, yet, that neither the said Loyal C., nor Hobart, nor the defendants in said scire facias, was estopped from making such denial, nor from showing, that he was not a partner, in relation to the debt sought to be attached, and in noway interested therein.
    This was a scire facias, in a process of foreign attachment, setting forth a judgment, obtained by the plaintiffs, before the superior court for Hartford county, on the fourth Tuesday of January, 1850, against Harvey B. Anderson, Loyal C. Anderson and Hobart Nickerson, all of Coral, in the state of Illinois, partners in company, under the name and firm of H. B. Anderson &' Co.
    The cause was tried at Hartford, January term, 1853, when the court found the facts, of which the following are those which are material.
    The original suit, referred to in the scire facias, was instituted, by writ, bearing date the 8th day of January, 1850, purporting to be against Henry B. Anderson and Harvey Nickerson, of Coral, in the state of Illinois, described therein as partners in company, under the firm of H. B. Anderson & Co., and served, by leaving a copy thereof with the secretary of the defendants, and was on the same day duly returned.
    Neither of the defendants was ever a resident in this state, nor was any service made upon either, in person, nor did any, or either of them, or the garnishees, appear in said original suit, at the January term of the court, 1850, to which said writ was made returnable.
    At said term, the plaintiffs, by leave of the court, caused said writ to be amended, by changing the name of Henry B. Anderson, to that of Harvey B. Anderson, and that of Harvey Nickerson to that of Hobart Nickerson, and adding the name of Loyal C. Anderson, so that, when it was so amended, it purported to be a writ, against Harvey B. Anderson, Loyal C. Anderson and Hobart Nickerson, partners in company, under the firm of H. B. Anderson & Co.
    The court commenced its session, on the 22d day of January, 1850, and said amendment was made, upon motion, between said 22d day of January and the 2d day of February, 1850; and upon said 2d day of February,^.notice was issued by said court, and served, and no otherwise served than, as shown by the officer’s return. Baid action was continued to the term of said court, holden in September, 1850, when the names of Hungerford & Cone, who were the general attorneys for the Protection Insurance Company and who in behalf of said company, intended to appear for said insurance company alone, were, by their direction, entered in the docket of said court, by the clerk, without designating whether said appearance was for the said defendants, or for the garnishees therein. Said Hungerford & Cone had no authority to appear in behalf of said defendants, and did not intend so to appear. Subsequently, during said term, said attorneys caused their appearance to be erased from the docket of said court; which was known to the attorney of the plaintiffs, and said garnishees were, with the consent of said Hungerford & Cone, defaulted. The attorney of the plaintiffs, until such' withdrawal, supposed said appearance of Hungerford & Cone was for said defendants, as well as for said insurance company. And at the same time, and before said Hunger-ford & Cone had so withdrawn their appearance, an order was made by said court, that the defendants should plead by the third Monday of November then next, and said cause was continued to the January term of said court, 1851, at which last-mentioned term, judgment was entered by default, against Harvey B. Anderson, Loyal C. Anderson, and Hobart Nickerson, for the sum of $893.83, damages, and for the sum of $16.77, costs of suit.
    The plaintiffs having filed the bond required by statute, execution was'issued, upon said judgment, bearing date the 29th day of January, 1851, and served upon the defendants.
    The Protection Insurance Company, by a policy of insurance, bearing date the 16th day of November, 1849, insured H. B. Anderson & Co., against loss by fire, to the amount of $2,000, on buildings and personal property, situated in the town of Coral, McHenry county, Illinois, and there was no evidence whether said insurance company did, or did not know who constituted the members of said firm, at the time said policy was issued. The real estate covered by said insurance, was owned by the said Harvey B. Anderson and Hobart Nickerson alone, and said personal property was owned by said Harvey B. and Hobart alone, and no other persons were, in any way, interested therein. About the 10th day of December, 1849, the property so insured, was destroyed by fire, and said Protection Insurance Company became liable for the amount by them insured thereon, which was the same claim sought to be recovered in the present suit.
    The. said Harvey B. Anderson and Hobart Nickerson, partners under the firm of H. B. Anderson & Co., on the 11th day of January, 1850, made an assignment, among other things, of their claim against said Protection Insurance Company, for the benefit of their' creditors, which assignment was valid. Said insurance company, on the 4th day of June, 1850, paid over the amount of said claim, to the assignees, and took from them a bond of indemnity. Said Loyal C. was never a partner with Harvey B. and Hobart, and never, in any wise, interested in the property, either real or personal, covered by said insurance, and there was no evidence, that said Loyal C. bad or had not any knowledge whatever of the proceedings, or any of the proceedings in said original suit. Said Harvey B. and Hobart became partners, under the firm of H. B. Anderson & Co., prior to June, 1849; said Loyal C. wras the father of said Harvey B., and the father-in-law of said Hobart. Said Harvey B., soon after "the formation of said firm, came to the city of New York, where the plaintiffs were carrying on business, as merchants, and applied to them, for the purpose of purchasing goods for said firm. At the time of said application, the plaintiffs inquired of said Harvey B., who were the partners, composing said firm ? to which he replied, that it consisted of himself, his father, and Hobart Nickerson, and upon this information, the plaintiffs sold to Harvey B., for the firm of H. B. Anderson & Co., a bill of goods upon credit, being in part, the same goods for the price of which judgment was recovered in the original suit. Said Harvey B., at the time he gave said information, supposed that his father would become and be a partner in said firm, but his father had no knowledge that such information was given. The plaintiffs, when said goods were sold, believed that said firm was constituted as stated by said Harvey B., and would not have sold said goods, had they not believed that said Loyal was a member of said firm ; but said Loyal had no knowledge that such information was given by said Harvey B., and did not authorize the same. Prior to said application to the plaintiffs, for said purchase, there had been conversation, between said Harvey and said Loyal, respecting said Loyal becoming a partner with said Harvey and said Nickerson, in trade, and said Harvey, at the time of said conversation, believed that said Loyal would afterward become a partner with them, in their business of merchandising ; but the court did not find, that said belief of said Harvey was founded on any encouragement or assurance to that effect, which had been given by said Loyal, to him or to said Nickerson. In August, 1849, the firm of H. B. Anderson & Co. ordered, by letter, a small additional bill of goods, of the plaintiffs, who furnished them, and said firm of H. B. Anderson & Co. made one or more payments to the plaintiffs therefor ; the plaintiffs still supposing .said Loyal to be a member of said firm, and if they had not so supposed, they would not have sold said goods. The prices of the goods, sold in the spring and summer of 1849, constituted the whole amount for which said original judgment was recovered. Said Loyal made no claim to the debt due from said insurance company, and there was no other evidence that the plaintiffs had any other information, at the time of making said sales, as to who constituted said firm. About the 8th of January, 1850, the plaintiffs forwarded to their attorney, at Hartford, Connecticut, said claim for collection, and furnished to him the names of Henry B. Anderson and Harvey Nickerson, as the persons composing said firm, and gave no intimation whatever, that Loyal C. Anderson was, or was ever regarded by them, as a member of said firm.
    By reason of the loss, sustained by said fire, the firm of H. B. Anderson & Co., consisting of said H. B. Andérson and said Nickerson, became insolvent and unable to pay their just debts, and the amount of the policies, assigned for the benefit of their creditors, after deducting the expenses incident to the collection, was insufficient to satisfy the claims for the security of which the assignment was made. Upon these facts, the question was reserved for the advice of this court, as to what judgment should be rendered in the suit.

      T. C. Perkins, for the plaintiffs,
    contended, 1. That the amendment was good, by statute (ed. 1849, 62, 71,) which should 'be construed liberally. Phelps Manf. Co. v. Enz, 19 Conn. R., 62. The lien of the plaintiffs is not impaired by the améndment. To retain a lien, was the object of granting power to amend.
    2. That the parties are estopped from denying that Harvey B. Anderson was a member of the firm of H. B. Anderson & Co. Middletown Bank v. Jerome, 18 Conn. R., 450.
    3. That the insurance company have a bond of indemnity, from the plaintiffs, and can not be bound by a judgment against them. H. B. Anderson can never make claim on them. The appearance of counsel sanctioned the proceedings of the plaintiffs, in procuring the allowance of the amendment.
    - 4. That the assignment of the claim upon the defendants, and the attendant circumstances, did not impair the right of the plaintiffs to amend, which right, they never relinquished.

      Hungerford 4" Cone, for the defendants,
    contended, 1. That the debt due from the insurance company, if ever attached, was so attached, at the time the copy was left in service. Fitch v. Waite, 5 Conn. R., 117.
    The two defendants in the original writ were, at first, described, as Henry B. Anderson and Harvey Nickerson, partners in company, under the firm of H. B. Anderson & Co., which, as against Harvey B. Anderson and Hobart Nicker-son, was a nullity, and could not justify an attachment of the property of either. Aquila Cole v. Hindson, &c., 6 T. R., 234. Scandover v. Warne, 2 Camp., 270. Wilkes v. Louk, 2 Taun., 400. Delanoy v. Cannon, 10 East, 328. The King v. Sheriff of Surrey, 4 E. C. L., 331. Morgan v. Bridges, 1 B. & A., 647. Griswold v. Sedgwick, 6 Cowen, 456. Mead v. Haws, 7 id., 332.
    2. Admitting that the original process might be amended, as to the names of the defendants, it could not be, by the introduction of an additional defendant or change of parties. It could not be, either at the common law or by virtue of the provisions of the 51st and 78th sections of the statute relating to “ civil actions.” Stat. 1849, pp. 62,71. Peck v. Sill, 3 Conn. R., 157. This action was not instituted against the copartnership, by the copartnership name, within the meaning of the above mentioned sections of the statute; relating to civil actions, because, 1. The writ purports to be against the two individuals named, who are described, as composing the firm, an.d all the firm. 2. A suit in the co-partnership name, within the provisions of these sections, must be such as to embrace collectively, under that name, all the individuals composing the firm.
    3. In the writ, as it originally was, Henry B. Anderson and Harvey Nickerson, as individuals, were the defendants. The property of no one else could be attached, by the process, and the words, “ partners in company, under the name and firm of H. B. Anderson & Co.,” are merely descriptive. The original writ, as amended, describes the defendants in the scire facias, as “ the attorneys, agents, trustees, factors,

      and debtors” of the defendants, in the original suit; whereas the court has expressly found, that they were the debtors of Harvey B. Anderson and Hobart Nickerson only. Boardman et al. v. Stewart, 1 Root, 473. Todd v. Potter, 1 Day, 238. Treadway v. Andrews, 20 Conn, R., 384. Upham v. Naylor, 9 Mass. R., 490.
   Storrs, J.

In the writ in the original action of assumpsit,

brought by these plaintiffs, which is referred to in the declaration, in this case, the defendants were described to be “ Henry B. Anderson and Harvey Nickerson, of Coral, in the state of Illinois, partners in company, under the name and firm of H. B. Anderson & Co.; ” and the defendants, in the present suit, are alleged, in the factorizing clause, to be “ the attorneys, agents, factors, trustees and debtors of the said defendants” in that action. That writ was, after the return thereof, amended by the plaintiffs, by permission of the court to which it was returnable, by changing the name of Henry B. Anderson to that of Harvey B. Anderson, and that of Harvey Nickerson to that of Hobart Nickerson, and adding, as defendant, the name of Loyal C. Anderson; so that, as thus amended, the defendants were therein described to be “Harvey B. Anderson, Loyal C. Anderson and Hobart Nickerson, of Coral, in the state of Illinois, partners in company, under the name and firm of H. B. Anderson & Co.” The factorizing clause remained unaltered, after said amendments, so that it purported that the defendants in the present case were the attorneys, agents, factors, trustees and debtors of the defendants in that writ, as thus amended, viz.: Harvey B. Anderson, Hobart Nickerson and Loyal C. Anderson, against whom judgment, by default, was rendered in that action. There was never any debt or claim, due from the defendants in the present suit, to the said Loyal C. Anderson, either solely or jointly with the said Harvey B- Anderson and Hobart Nickerson, or either of them; and the said Loyal never was a member of the firm of H. B. Anderson & Co., which was composed of the said Harvey and Hobart only.

Without considering whether thé writ, in that action of assumpsit, was amendable, or to what extent, it is very clear, that if it had not been amended, but had remained as it was originally made, with respect to the defendants named therein, the service of it, upon the defendants in this suit, would not have the effect of attaching or sequestering, in their hands, any debt or claim due from them to the said Loyal C. Anderson alone, or to him jointly with Harvey B. Anderson and Hobart Nickerson, because the said Loyal would not be named, or in any way described, as a defendant in that writ, and would not, therefore, be a party to the suit commenced by it, or to any of the subsequent proceedings under it; and the factorizing clause of that writ would, moreover, be no notice to the defendants in this suit, that any such debt or claim was intended to be secured or attached in their hands, to pay the judgment which the plaintiffs should recover in that action. It is sufficient, on this point, to refer to the terms of our statute of foreign attachment. Stat.,1849, p. 115.

The plaintiffs however insist, first, that it was competent for the court to which the original suit was brought, under the general statute relating to. the amendment of writs, and the practice of our courts, to allow the amendments which were made to the-writ in that suit; and, further, that if those amendments were not allowable under that statute or practice, that suit is to be deemed to have been brought against the copartnership, consisting of the persons whose names appear therein as defendants, after such amendments, by their partnership name, and that under the 51st section of the act for the regulation of civil actions, ( Stat. 1849, p. 62,) those amendments were valid; and they thereupon claim, that such amendments being made, the same lien was acquired, by virtue of that writ and the proceedings under it, as if it had been originally drawn, so as to be conformable to those amendments ; and therefore, that Loyal C. Anderson is, to all intents, to be deemed a defendant in that suit, since its commencement. The present defendants deny, that, by the practice of our courts, or either of those statutes, those amendments were effectual, as against them, to attach or secure in their hands, any debt or claim due from them, when the copy of that writ was left in service, either to the whole or any part of the defendants, against whom judgment was rendered in that suit, whatever may have been their effect, as between the plaintiffs and any of those persons who were made defendants in that suit, either before or after the making of those amendments.

It need not be decided, in this case, whether the defendants in that suit were personally bound by the judgment rendered therein, although it would seem to be clear, that, as neither of them had any notice of the suit or appeared in it, that judgment would not affect either of them personally. However that may be, that suit, so far as the present defendants are concerned, was a proceeding in rem only, under our statute of foreign attachment, against the debt or claim due, when they were served with a copy of. the writ in that suit, from them to the defendants in that suit; and the question now presented to us, is, whether, by virtue of the institution of that original suit, and the proceedings under it, the debt found to be due in this case, by the present, defendants, was so attached or secured, that they are liable in this suit, to a recovery by the plaintiffs, for the amount of such debt. In order to decide this question, we do not consider it necessary, and therefore we do not intend, to express any opinion' upon the claims of the respective parties, which have been stated, in regard to the propriety, validity, or effect of any of the amendments made to the writ in the original suit; because we are clearly of opinion, that, whether those amendments were allowable or not, there can be no recovery, by the plaintiffs in this suit,

If, in the first place, those amendments were allowable, and the writ in the original suit is to be viewed as if it had been at first framed in accordance with those amendments, that suit and the proceedings in it would have laid no foundation for such a recovery, for the reason that, by the form and effect of the factorizing clause in that writ, no indebtedness would have been attached or secured, to respond to the judgment to be recovered in that suit, except one which might be due to all the defendants therein, from the present defendants ; whereas it is found in this case, that there was no such indebtedness, but that the indebtedness by the latter, was due to two only of the defendants in the original suit,—viz., Harvey B. Anderson, and Hobart Nickerson. The plaintiffs, therefore, here seek to appropriate to the payment of that judgment a debt which was not attached in that suit, and to which they never acquired any lien. Even if it had been competent for them to have attached, in that suit, a debt due to two only of the defendants therein, by the present defendants, (upon which we express no opinion,) they have not done so, in this instance. The present defendants are described in the factorizing process, as the debtors of the defendants in that suit; which imports, that they were the debtors of all of those defendants jointly, and not of each or a part of them only. We think that its effect was only to notify the garnishees, the present defendants, that the debt which they might then owe to the defendants in that suit, jointly, was intended to be secured, and to secure only a debt of that description. It is plain, that a debt due to two persons by a third, is entirely different from, and therefore not properly described as, a debt due by the latter to those two, jointly with another. An averment of an indebtedness by one person, is, in some cases, held to be supported, by evidence of an indebtedness by him jointly with another; because, debts due by several persons jointly, are deemed to be several as well as joint. Whether that principle would be held to apply to the allegation of an indebtedness in a factorizing process, need not be here considered ; because it is obviously inapplicable to a case of indebtedness to two persons only, where it is alleged to be an indebtedness to them jointly with another. On this ground also, there is a failure by the plaintiffs, to prove the material allegation, in this writ of scire facias, that the present defendants were indebted to the defendants in the original suit, which is necessary to a recovery.

The plaintiffs however insist, that the defendants in this case are estopped to deny, that they were indebted to all the defendants in the original suit, by the representations that Loyal C. Anderson was a partner with the other two of them, made by Harvey B. Anderson, one of those defendants, to the plaintiffs, when the goods were sold, for the price of which the judgment was recovered in that suit. We see no just ground for this claim. It is found, that neither the said Loyal, nor Hobart Nickerson, the other of those defendants, was cognizant of those representations, or ever authorized or sanctioned them. Those representations constitute an estoppel in pais, only for their own proper purpose, which is to preclude the person who made them, and those claiming under him, as between them and the person deceived by such representations, from denying their truth, in a case involving the character or merits of the transaction in the course of which they were made ; but not to affect other persons not privy to those representations. Therefore, in the action which was brought by the plaintiffs, for the price of the goods, it would not have been competent for Harvey B. Anderson, the defendant therein, who induced the sale by those false representations, to deny their truth, and claim that Loyal C. Anderson was not a partner with him and his co-defendant, Hobart Nickerson, in the purchase ; but neither the said Loyal nor the said Hobart would be estopped to make such' denial. . But, considering, for the purposes of the present suit, as the plaintiffs claim, that the original judgment should be viewed, as having been properly and regularly rendered against all the defendants in that action, in which light alone, the present suit can be sustained, the question now before us is, not whether those defendants were indebted to the plaintiffs, but whether the defendants in the present suit are estopped, by the representations which have been mentioned, from denying, that they are indebted to the defendants in the original suit. In our opinion, they clearly are not so estopped. The indebtedness of the present defendants; on which it is attempted to subject them in this suit, is founded on the contract contained in the policy of insurance, by them executed and delivered only to Harvey B. Anderson and Hobart Nickerson, the sole owners of the property insured. That contract of insurance was a transaction subsequent to and wholly distinct from, the original purchase of the goods, and that, whether those goods constituted the property so insured, or not; and the question, who are to be deemed the parties to that particular contract, is to be determined by the circumstances attending it, and not by those connected with the previous contract for the purchase of that property. There was no representation by any one, when that contract of insurance was made, that Loyal C. Anderson then or ever had any interest in the property insured, and it is found that he had not. It is most difficult to see, on what ground Harvey B. Anderson himself, who made the representations imputed to him by the plaintiffs, would be estopped, even as between him and the plaintiffs, from denying, in this suit, that Loyal C. Anderson was a party to the contract for the insurance of those goods; but, however that might be, it is quite clear, that neither said Loyal nor Hobart Nickerson, nor any person claiming under them or either of them, is precluded from insisting, according to the truth, that the former had no interest in that property, and therefore was not a party to that contract. Hence it results, that, as that contract was made by the present defendants with the said Harvey and Hobart only, a payment by the former, of the indebtedness which accrued by virtue of it, to the two latter, or to their assignees, would be a protection against any claim founded on it. In this case it is found, that payment of that indebtedness has been made by the present defendants to such assignees, who are really the parties here contesting the right to it with the plaintiffs; although it is a sufficient answer to the claim of the plaintiffs in this case, that the policy of insurance was not made by the said Loyal jointly with the said Harvey and Hobart.

Thus far we have considered this case, as though all the amendments, made to the writ in the original suit, were allowable.

If, however, the amendment, adding the name of Loyal C. Anderson as a defendant, (to say nothing of the other amendments,) was not allowable, and is, therefore, to be merely disregarded, or treated as if it had not been made, (which is the least effect that can be claimed for it by the plaintiffs,) the objections to a recovery in this action are more numerous, and more palpably insuperable. Indeed^ the counsel for the plaintiffs have not claimed before us, that, if that is the light in which the case is to be considered, they are entitled to judgment.. Without noticing all those objections, or dwelling upon any of them, it is sufficient to say, that the said Loyal, not being mentioned in that original writ, and therefore not being a party to that suit, would not be affected by the judgment in it, which, as to him, would be a nullity, and therefore furnish no evidence of any indebtedness from him to the plaintiffs ; that, as we have before remarked, in considering said amendment, if allowable, not to have been in fact made, there would be nothing in the factorizing clause of that writ, to indicate, that the present defendants are indebted to him, either solely or jointly, with the defendants named in that writ, or either of them, and therefore that no lien on such debt could be created or secured by the plaintiffs, by virtue of that process ; and that, moreover, the averment in this writ of scire facias, that it was alleged in that original writ, that the said 'Loyal was, jointly with the other defendants, therein mentioned, indebted to the plaintiffs, would be negatived, by the finding1 of the court, in this case.

The superior court is, therefore, advised, to vender judgment in favor of the defendants.

In this opinion, the other judges concurred.

Judgment for defendants.


author: CironcH, C. J.

text:
    Hedge vs. Clapp.
    It is not a ground of error, that the court received evidence of the declarations of a witness, contradictory to his statements, sworn to on the trial, without requiring that the witness should have been first inquired of, on cross-examination, whether he had made such contradictory statements. Such contradictory statements are, of theipselves, proper matters of evidence ; and the time and order o£ receiving such evidence, rests in the discretion of the court.
    The English rule, first promulgated in the Queen’s case, (2 B. & B., SIO,) that a witness can not be impeached, by proof that he has made statements contradictory to what he has sworn upon the trial, unless he has been inquired of, on cross-examination, as to such alleged contradictions, has never been adopted in this state, by any legislative enactment or judicial decision.
    The decision in the case of Tucker v. Welsh, 17 Mass. R., 160, cited and approved.
    This was an action of assumpsit, tried before the jury, at the August term, 1852, of the county court, for Hartford county.
    The defendant pleaded the general issue, with notice of special matter, to be given in evidence, and also, that she should claim a set-off of an indebtedness of the plaintiff.
    On the trial, the plaintiff offered Dorcas H. Chandler, as a witness, who testified, that certain household furniture) which was a matter of charge against the plaintiff, in the defendant’s notice of set-off, was in the defendant’s possession, about the last of May, or first of June, 1851 ; that said furniture was removed by the plaintiff, from the defendant’s possession, about that time ; that she was present, when such furniture was removed; that the defendant, on the day of the removal of said furniture, went out, for the purpose of buying other furniture, to supply the place of the furniture so removed ; that she soon after returned, said she had purchased other furniture, had made several dollars by it, and, as the plaintiff’s furniture was being removed, said she was glad of it, as she could now furnish her front room with her own furniture. Said witness was not inquired of, by the defendant, nor did she testify, whether she had said anything, or what she had said, out of court, to the defendant, or to her daughter, in regard to the witness being absent, at the time of the removal of said furniture, nor whether she had told said defendant, or said daughter, or any other person, that she was not present, at the time of such removal, nor what she had said, out of court, or if she had said anything, in regard to any of the matters referred to, in the testimony as set forth. The defendant, for the purpose of discrediting and contradicting the testimony of said witness, offered her-' self and her daughter, as witnesses, to prove that said Chandler had declared to them, out of court, that she was not present, when said furniture of the plaintiff was removed, and knew nothing about it.
    To the admissibility of this testimony, the plaintiff objected, on the ground that said Chandler had not been asked, and had not testified, whether she had declared, out of court, that she was absent, at the time of said removal of furniture, or what she had declared in regard thereto.- At the time said testimony was offered, said Dorcas was not in court, but she had not been dismissed, as a witness, and might have been called upon to testify, relating to said matters, after the introduction of said witnesses. -The court overruled said objections, and permitted said witnesses, and each of them, to testify, that said Dorcas had declared to them, out of court, that she was absent, at the time of said removal of furniture, and knew nothing about it. To which ruling of the court, at the time of said ruling, the plaintiff did not except, nor request the court to make any minute of such exception.
    The jury having returned a verdict in favor of the defendant, and judgment being rendered thereon, the plaintiff filed a bill of exceptions, and by motion in error, brought his case before the superior court, when the judgment of said county court was affirmed, and thereupon, by motion in error, the case came to this court.

      Hubbard, for the plaintiff in error,
    contended, that a witness can not be contradicted, by proof of declarations, made out of court, without first asking the witness, as to those declarations. Queen's Case, 2 Brod. & Bing., 284. Angus v. Smith, 1 Moody & Malk., 473. Crowly v. Page, 7 C. & P., 792. Carpenter v. Wall, 11 Ad. & El., 803. 1 Stark. Ev., 213, 605. 2 Phil. Ev., Hill and Cowen’s Notes, 772. 1 Greenleaf’s Ev., 462. Kimball v. Davis, 19 Wend., 445. Franklin Bk. v. Steam Navigation Co., 11 Gill & Johns., 28. Doe v. Reagan, 5 Black, 217. Story v. Saunders, 8 Humphy., 663.

      Welles, for the defendant,
    contended, 1. That the testimony received by the county court, is admissible, as substantive evidence, and there is no necessity for laving a foundation for its admission, by an inquiry of the witness who is to be disparaged. This was the English rule, until the Queen’s case, 2 B. & B., 300, 313. Phil. Ev., 230, 231, (ed. 1820.) Peake Ev., 89. 2 Esp. N. P. IkJjSJ—Phill-ip&Jays down the rule, without qualification, that “ the credit of a wiN'” ness may be impeached, by proof, that Ml has made statements, out of court, on the same subject, contrary to what he swears at the trial.” Neither Gilbert, Peake,''Phillips, nor any other writer on evidence, lays down any such rule as that in the Queen’s case, occurring previous to that time. Tucker v. Welsh, 17 Mass. R., 160. In Connecticut, the former practice was, to introduce contradictory evidence, without first inquiring of the witness. Judson v. Blanchard, 4 Conn. R., 557. Atwood v. Welton, 7 Conn. R., 66.
    It is not the fact that the witness is, or may be, contradicted, on the stand, that makes^the éjnSfñce admissible; but that he has given different and contradictory accounts ; and this may be proved by any competent evidence, as a fact, which affects his credit. Phil. Ev. (ed. 1820,) 231. Note containing opinion of Lord Redesdale. All the authorities, cited by the opposing counsel, have their origin in the Queen’s case.
    2. This being substantive ground of evidence, the time and order of its' admission must rest in the discretion of the court, and is not a ground of error. <Et is a mifre matter of convenient practice. 11 Wheaton, 280, 302. 5 Conn. R., 187. 1 Conn. R., 49. 6 Conn. R., 559. Hathaway v. Hemingway, 20 Conn. R., 196, 9. Doane v. Cummings, 11 Conn.. R., 152.
    3. In this case, the plaintiff might have recalled his witness, and has therefore suffered nothing, from the decision complained of.

      Hungerford, on the same side,
    declined further argument.
   CironcH, C. J.

This is a motion in error, to reverse the judgment of the superior court, by which a judgment of the county court, on motion in error, had been affirmed.

The ground of exception to the decision of the county court is, that witnesses were called by the defendant to testify, and did testify, that Dorcas H. Chandler, who had before been called by the plaintiff, to testify, had, out of court, stated to them, facts contradictory to, and inconsistent with, her testimony given in chief, for the plaintiff, without being inquired of, by the defendant, on her cross-examination, and without testifying, whether she had made to the defendant’s witnesses or others, any such contradictory or inconsistent statements, as' sworn to by them. This testimony, thus introduced by the defendant, upon objection, was admitted by the county court; and this, without recalling the said Dorcas, who might have been recalled, to contradict or explain.

The question before us, is not what has been, either anciently or in modern times, or what we may think would be, a reasonable or convenient practice, resting in the discretion of the court, in the examination of witnesses, either as to the order or subject of such examination ; but whether any rule or principle of law, of which the plaintiff had a right to avail himself, has been violated by the county court, so that, he is entitled, as a matter of right, to demand a reversal of the judgment of that court.

f In the admission or rejection of testimony, and in regard to many matters occurring in the course of trials, the due course of justice demands, to some extent, the exercise of a discretionary power by the court/ In exercising such discretion, courts frequently regard-former usages and practice,’ although when propriety seems to demand it, they pass by such practice, and, without violating any legal rights of parties : thus they often depart from the usual course of procedure, to-protect a witness from surprise and embarrassment ; or to expose one to detection, who seems disposed to conceal or prevaricate, &c.

/in this' state, we do not believe there has been a uniformity of usage, in conducting the examination of witnesses who have made contradictory statements out of court, since the Queen’s case, in 1820; although, before that time, a contradiction of a' witness might be proved, without qualification. Sometimes the impeaching proof has come in, without objection; sometimes, the first witness, upon cross-examination, has been inquired of, generally, whether he has ever made a different representation of facts, without referring to circumstances or persons, and this has been very frequently done ; and sometimes, the course now insisted upon by the plaintiff, as the only proper one, has been pursued. We conclude, therefore, that the legal profession here, has never considered the law on this subject, to be fixed, but has treated the subject, rather as a matter of practice, in the examination of witnesses, and subject to the discretion of the court.

We do not very well see, how an unyielding rule can be prescribed, in conformity with the rule claimed by the plaintiff, which shall apply consistently to all cases. A great portion of the evidence in our courts, consists of depositions, and it would be found quite impossible, in depositions taken exjcarte, to apply any such principle or practice.

The judges, in the Queen’s case, reported in 2 Brod. & Bing., 301, (6 E. C. L. 112,) adverted to an existing usage, in support of the advice which they gave to the House of Lords, establishing the rule of evidence now relied upon by the plaintiff; but they refer to no book or reported case, upon which they relied as an authority; and we believe that no such existed, in any such form as to furnish evidence, that such, before that time, was the common law of the land, or of the courts, rather than a mere rule of practice, which some or more of the judges had, in the exercise of a discretionary power, followed at the circuits. Indeed, the English judges, in subsequent cases, appeal, in support of the rule, which is certainly now well established in their courts, solely to the Queen’s case, as its origin. Angus v. Smith, 1 Moody & Malkin, 360. Crowley v. Page, 7 Car. & P., 789. If this be so, it can not be claimed properly, that the law, as received and understood in this state, before that case, has been abrogated and abandoned, and the new principle en-grafted into our system of jurisprudence, unless by some statute provision, or judicial decision of our own ; and there has been no such. We must, therefore, look for our law, on this subject, to a period before the decision of the Queen’s case.

Chief Baron Gilbert, in his treatise on evidence, the first book of authority on this branch of the law, does not allude to any principle, known in his time, which required, on cross-examination, that a witness should be inquired of, as to his acts or declarations, out of court, in order to admit evidence, by way of impeachment, of- his inconsistent testimony in court. He gives the principle without qualification : “ a prisoner may bring evidence to prove, the witness gave a different testimony, before a justice of the peace, or at another trial.” Gilbert’s Law of Ev., 31.

.Mr. Peake asserts the principle, without condition or qualification, that declarations, made by a witness, on the same subject, contrary to what he swears on the trial, may be given in evidence, to impeach his credit.” Peake’s Ev., 89. So Phillips, in the first edition of his very valuable work, published in the year 1817, three years before the trial of Queen Caroline, states the law in the same manner; although he gives it differently, in subsequent editions, published after that trial. Phil, on Ev., 1 edition, p. 230. In De-Sailly v. Morgan, 2 Esp. Cas., 691, it was decided, that a letter, written by a witness, might be read, to contradict his testimony in chief, although no allusion was made to it, on his cross-examination. In Christian v. Coombe, id., 489, a protest, signed by a witness, was admitted for the same purpose.

No qualification of the rule or practice, as laid down in the authorities above referred to-, is suggested by Judge Swift, in his system, or in his law of evidence, nor in his digest, nor have we any decided case, adopting the modern qualification, as recognized in the Queen’s case.

In the case of Tucker v. Welsh, 17 Mass. R., 160, this subject was brought under the -notice of the supreme court of Massachusetts, and well considered, and in the result, the court say : Whatever may be the reasons for adopting the practice in England, of first advertising a witness, on what grounds he is about to be impeached, we are satisfied that such practice has never prevailed here. In England, it is rather a matter of practice, than a rule of evidence, as would seem by the opinion of the judges in the Queen’s trial. It may date its origin long since we were bound by English laws, and if so, would have no force here, except by adoption.”

The same views, and we think they are correct, are expressed by the court in Maine, in the case of Ware v. Ware, 8 Greenlf., 42.

We think we are justified, from the foregoing view of the law, in our opinion, that, however proper and salutary the practice may be, as now established by the courts in England, on the subject we have been considering, .yet the rule has never been adopted, as a principle of our law of evidence, that the credit of a witness can not be impaired or impeached, by proving contradictory statements made by him, out of court, unless his mind and recollection have been called to them, on his cross-examination, so as to justify us in reversing a judgment, as a matter of legal right, because such rule or practice has been disregarded. And, it is important, we think, to notice the fact, that the opinions, expressed by the judges in the Queen’s case, were intended to influence a court, in the progress of a pending trial, and were not pronounced upon the question, whether a judgment, already rendered, should be reversed; if they had been, the judges would have decided explicitly, whether the course of examination, thus approved by them, was a matter of judicial practice merely, or required by any known and settled principle of the law.

In the present case, at any rate, we see no cause for the plaintiffs complaint. His witness was still within his reach, and subject to his control, after the impeaching testimony had been heard; and all the cases agree in determining, that, in such case, the witness could have been recalled by the plaintiff, for the purpose of explanation.

Now, although for the reasons suggested, we can not reverse this judgment, yet we feel that in many, if not in most cases, the rule of practice and course of the examination of witnesses, as recognized and established by the courts of England, where contradictory representations are relied on, for the purpose of impeachment, is a very safe and conservative one, as protecting the just rights of witnesses, as well as calculated to elicit the truth, and one to which it will be very proper to adhere, subject to such exceptions as a sound discretion may, from*time to time, suggest.

In this opinion, the other judges concurred, except Waite, J., who tried the case in the court 'below, and was disqualified.

Judgment affirmed.


author: Hinman, J.

text:
    Canfield vs. Bostwick and others.
    The refusal of the superior court to tax costs, in favor of either party to an appeal from probate, is no ground of error. Such taxing is a matter for the discretion of the court, to be exercised according to the circumstances ’ of each case.
    The superior court at Litchfield, at its August term, 1852, passed a decree, pursuant to the advice of this court, in the case of Canfield v. Bostwick and others,-21 Conn. R., 551. Both the appellant and the appellees claimed costs, but said superior court decreed, that no costs should be taxed or allowed to either party.
    To revise this decision, Royal I. Canfield brought the. case before this court, by motion in error.

      Sanford and Orton, for the plaintiff in error.

      Seymour, Woodruff and Harrison, for the defendant'in error.
   Hinman, J.

In Mary Sloan’s case, 1 Root R., 151, where

the distribution of Daniel Mansfield’s estate was disaffirmed, on appeal, the court held, that the appellant was not entitled to costs, on the ground, that an appeal from probate was in the nature of a writ of error, and, in ordinary cases, it was unreasonable, to subject a party to costs, for the error of the judge. The practice, up to 1830,- was in conformity to this rule, and costs were not taxed against appellees in probate cases. Comstock et al. v. Hadlyme, 8 Conn. R., 262.

In 1830, a statute was passed, giving costs to the successful party, in a writ of error, and, since the passage of that statute, it has been held to be competent for the superior court, on appeals from probate, to allow and tax costs, in analogy to the principle of that act., Smith v. Scofield, 19 Conn. R., 534.

It is apparent, from this examination of the law, and practice of our courts, that the present practice of the superior court, of taxing costs, in most cases which come up, on appeals from probate, is not under the provision of any law or statute, absolutely giving costs to the prevailing party; and especially, that the statute, giving costs to the party who succeeds in a civil cause, is not considered as having any application to cases of this sort; but the taxation of costs in them is a matter of discretion, to be exercised or not, according to the circumstances of the case. It follows, of course, that a writ of error will not lie, from the decision of the judge, in the exercise of this discretion. The plaintiff’s motion is, therefore, denied.

In this opinion, the other judges concurred, except Church, C. J., who decided the question in the court below, and was disqualified.

Judgment affirmed.


text:
    Seymour vs. Seymour and others.
    A deed of land, executed under a probate order of sale, purporting to be for a consideration which is less than the sum specified in such order, is not void, on the ground that said order is not thereby strictly complied with.
    The real estate of a deceased person remains subject to a lien for the payment of his debts, even after all the parties interested therein, as heirs or devisees, have made a mutual distribution thereof, under their hands and seals.
    The plaintiff, who had signed a promissory note, as surety for his father, after the father’s decease, united with the other heirs, in making, under their hands and seals, a mutual distribution of the estate of the deceased, before it could be known what debts would be allowed against it, reserving certain turnpike stock, for the payment of such debts as might be due. At the time of making such distribution, in September, 1849, the other heirs signed an agreement, indemnifying the plaintiff against his liability, as surety, and thereupon entered upon their respective shares of said estate, and continued in the occupancy thereof, under the distribution. Being afterward compelled to pay said note, and the other heirs not indemnifying him therefor, the probate court allowed the plaintiff’s claim therefor, against the estate of the deceased, and granted an order for the sale of real estate, and the plaintiff purchased the shares of such estate, held by the defendant^, and. a return of such sale was made to; and approved by, said court. In an action of ejectment against the distributees of the estate sold, it was held, 1. that the agreement to indemnify the plaintiff against his liability, as surety, was no merger of his claim against the estate; 2. that he was not estopped from setting up a title to the premises conveyed'to him, against that of the defendants under the distribution; 3. that the probate court had exclusive jurisdiction of the claim of the defendants, and that they were concluded, by the proceedings there had, when the order of sale was issued, and the return accepted.
    This was an action of ejectment, for a parcel of land in the town of New Hartford, formerly owned by Sylvester Seymour, deceased.
    The cause was tried at Litchfield, August term, 1852. The plaintiff claimed title to the land in question, under a deed, executed by authority of the court of probate. On the trial, to prove his title, the plaintiff offered in evidence a deed of the premises to him, from Hiram Goodwin, together with the decree of the court of probate, directing said Goodwin to sell so much of the real estate of Sylvester Seymour, deceased, as would raise the sum of nine hundred and sixty-six dollars, and sevehty-four cents, which order was recited therein. Said deed was in the usual form, but purported to convey the premises to the plaintiff, for the consideration of eight hundred and fifty-six dollars, and forty cents. To this deed, as evidence of the plaintiff’s title, the defendants objected, on the ground that it appeared on its face, that said Goodwin had not discharged the trust and power conferred upon him by said court, but had departed from the same, in selling less land than directed by the order; no evidence being offered by the plaintiff, that said power and authority had been discharged, in any other way than as appeared on the face of said deed, and it being admitted that the lands embraced therein were only a part of the real estate of said Seymour. It was admitted that the plaintiff, during the lifetime of said Sylvester, had executed a note with him, as his surety, to the town of New Hartford, for the sum of —--dollars, which note remained unpaid at the decease of said Sylvesterand that afterward, while their note remained unpaid, (the plaintiff' having before that time been appointed one of the administrators on said estate,) the remaining heirs executed to him an indemnity against his liability to pay said note, and there upon a distribution and division of said estate was made, by mutual assent of all the heirs of said estate, and the following agreement, signed and sealed by them, in the presence of two witnesses, and acknowledged before the judge of probate, was indorsed upon such distribution—viz.:

    - “ Whereas the foregoing distribution has been made by the mutual agreement of the subscribers, the widow and heirs of Capt. Sylvester. Seymour, late of New Hartford, deceased; now we do hereby confirm and agree to the foregoing distribution, and agree, that the foregoing shall ever be and remain the division and distribution of said estate, except the turnpike stock belonging thereto, which is reserved in the hands of the administrators, for the payment of the debts due from the said estate, and when said debts are paid, the remainder of said turnpike stock, or the avails thereof, are to be equally divided between the said children and heirs of the deceased, and also the land and buildings are to be so divided, which are set to the said widow, when her estate is ended,
    “ In witness whereof, we have hereunto set our hands and seals, at New Hartford, this 30th day of September, 1829.”
    It was admitted, that, after the execution of said indemnity, and said distribution and agreement, the plaintiff was compelled, by suit at law, to pay said note, and thqt said heirs neglecting to perform said contract of indemnity, the plaintiff thereafter procured his account and claim for said payment to be allowed by the court of probate, whose decree was, on appeal, affirmed by the superior court; and the plaintiff obtained an order of said coqrt of probate, for the sale of real estate to pay said debt to him, being the same order before named, and the same recited in the deed of Hiram Goodwin to the plaintiff. It was agreed, that the parties to said distribution respectively entered on their respective shares of said estate, so divided to them, and occupied the same as their own divided shares; and that the defendants had, ever after said distribution, occupied the demanded premises, claiming title under said distribution and agreements.
    The defendants claimed, that, upon the facts and instruments, before named, the plaintiff was estopped from setting up a title, against the title of the defendants to the demanded premises ; but the court decided against the claim of the defendants, and that said matters did not constitute an estoppel ; and decided, that the matters offered by the defendants, as evidence of estoppel, were not admissible for the purpose offered ; and that the deed of said Goodwin to the plaintiff, was evidence of title in the plaintiff, and admitted the same as evidence.

      The jury having returned a verdict for the plaintiff, the defendants moved for a new trial.

      Hubbard, Hall and Cornwell, in support of the motion,
    contended, 1. That the deed to the plaintiff is void, because the order of the court of probate was not complied with. The power and trust conferred by said court must be strictly pursued. There was other estate of the deceased ; and, as the debts exceeded the amount raised by the sale, there is an apparent departure from the order of probate, and its justification must be shown by the plaintiff.
    2. That while the administrator may, by virtue of an order of probate, sell, or procure the-sale of, the estate of the deceased, as a general rule, yet in this case, he could not sell such of this estate as he had, by his own deed, bound himself not to sell. He is estopped by his deed of partition, bond of indemnity, and the possession of the parties to the partition, and that of their grantees. He should have resorted to other property of the estate of the deceased.

      Goodwin, contra,
    claimed, 1. That the objection of the defendants to the validity of the plaintiff’s deed, is, that the order of the court of probate to sell land, to raise a certain amount, can not be executed in parts, by several sales of distinct parcels of land, to different purchasers, but must be executed in solido. Such claim is not authorized by the terms of the order itself, and would frequently be inconvenient, often wholly impracticable, and is at variance with the practice in this state.
    2. That the plaintiff has done nothing, except by the sanction of a court of appropriate jurisdiction, and can not be estopped from setting up a title, derived not by his own act, but under the decree of a court of competent jurisdiction. If the matter could now be considered as wholly open, there is no foundation for the claim of the defendants. The distribution was made at the same time of the agreement to indemnify the plaintiff against the payment of the note, which payment constitutes the plaintiff’s claim against the estate. The distribution was assented to by the plaintiff, in the confidence that the defendants would perform their agreement to indemnify him; and the neglect of the defendants has imposed upon him the necessity of paying the debt. The defendants can easily relieve their land from the debt, by performing the agreement.
    3. That the payment of the debt by the surety, creates a debt in his favor, against the deceased, which has never been discharged or acquitted by the plaintiff. The agreement is not under seal: itps a mere collateral undertaking, intended as a recognition of the obligation of the estate, and as additional security, but is no merger of the plaintiff’s claim ; as was decided by the superior court, on the appeal, from the court of probate. It is not now an open question.
   Hinman, J.

This was an action of disseisin, to recover

the possession of premises lying in New Hartford. The plaintiff’s title was by a deed from Hiram Goodwin, under authority derived from the court of probate, appointing him to sell real estate of Sylvester Seymour deceased, sufficient to.pay certain debts and charges, allowed by said court against said Sylvester’s estate. The order empowered and ordered said Goodwin, to sell so much of said estate as should be-required, to raise the sum of nine hundred and sixty-six dollars and seventy four cents; and, as the land sold to the plaintiff, by the deed under which he claimed title, was less than that sum, it is now claimed, that the deed is void upon its face, on the ground that the order to sell was not strictly complied with. We see nothing objectionable in this : we know of no rule or law, that requires an administrator to sell all the real estate he is ordered to sell, at one and the same time, and to the same purchaser; Where the sum to be raised is large, it would often be very difficult, and perhaps impossible to do so. He can not sell mote than he is authorized to sell; and where such appears to be the case, on the face of the deed, the instrument is wholly inoperative and void, it being impossible to distinguish the excess from that which was authorized, and the whole must, therefore, fall together. But, where there is no excess of authority, and the administrator conducts reasonably, we see no objection to his making sales of different parcels, to different persons, as may best promote the interests of all concerned.

The plaintiff and the defendant Sylvester Seymour, were two of the sons and heirs-at-law, of the deceased, Sylvester Seymour, and the plaintiff was one of the administrators on his estate. The debt which was the foundation of the order of sale, was a note which had been executed by the deceased, to the town of New Hartford, and the plaintiff had joined in the execution of it, as surety for his father. The heirs wished to procure a distribution of the estate, before it could be known, what debts would be allowed against it, and, so-far as we know, before any administration account was settled in the court of probate. For this purpose, the administrators, on the 17th of September, 1829, made a representation to the court of probate, that certain turnpike stock, belonging to the estate, would be sufficient to pay the debts and charges that would probably be allowed against the estate, and they, thereupon, requested a distribution of all the estate, except said turnpike stock. Such a distribution was accordingly ordered, and, on the 30th of September, was made and returned to the probate court; and, on the same day, all the heirs of the deceased executed to the plaintiff an indemnity against his liability on said note to the town of New Hartford, and, thereupon, the distribution of the estate of the deceased, made as aforesaid, was assented to, by the widow, and all the heirs, and such mutual assent was indorsed upon the distribution, signed by all the parties in interest, and, being also executed under their respective seals, was also acknowledged, before the judge of probate; and the respective shares, so distributed to them, have , since been occupied and used by the distributees respectively, the defendant having ever since occupied the demanded premises, claiming the same, under said distribution. The plaintiff has since been compelled, by action at law, to pay said note, and the heirs not indemnifying him, as they had agreed, he procured his account for such payment to be allowed by the court of probate, and obtained the order of said court, to sell real estate to pay the same, which is the order under which the sale in question was made.

Upon these facts, and especially upon the distribution so agreed to, signed, and acknowledged by the plaintiff, the defendants insisted, in the court below, and still insist, that the plaintiff is estopped to set up a title in himself, against the title then acquired by the defendant; and whether he is so estopped, is the main, and only important question in the case. The agreement to indemnify the plaintiff against his liability on the note, was not under seal,' and was, therefore, a simple contract merely, and did not merge his claim against the estate, for the money afterward advanced by him. We do not see, therefore, how he could have been prevented from presenting his claim against the estate for payment, or how the court of probate could have refused to allow it. Indeed, the case shows that, although the allowance of it was contested, and the order of the probate court, allowing it, appealed from, yet the claim was sanctioned by the superior court, which refused to disaffirm the decree of probate.

If the plaintiff could not be prevented from prosecuting his claim against the assets belonging to the estate generally, the question then arises, whether, in consequence of his agreement to the distribution, executed, as we have seen it was, under his hand and seal, he is precluded from doing anything which may have the effect of breaking up that distribution. The defendants claim, that the assent of the plaintiff to that distribution, is tantamount to a covenant never to disturb, or do anything that shall in any manner affect it; but that it should, for all time, remain a distribution and division of the estate. On the other hand, the plaintiff’s claim is, that the distribution, though executed under the seal of the parties in interest, is still but a mere substitute for a distribution, effected only through the action of the court of probate : and, as such a distribution is always subject, by our law, (Griswold v. Bigelow, 6 Conn. R., 263 ; Booth v. Starr, 5 Day’s R., 286 ; Kirby, 36,) to be broken up by the appearance and allowance of claims against the estate, and a sale of the estate to pay them, this distribution is liable to be similarly affected. The equity of the case seems to favor this view of it. The statute requires, that a distribution shall be made by disinterested persons, unless all the persons interested make a division of the same, under their hands and seals.

Now, as there are only these two modes of making a distribution, and they are both alluded to, in the same section of the statute, and the mode of making either of them effective is particularly pointed out and prescribed; it seems rather unnecessary to make any distinction in the effect which they áre to have upon the rights of parties under them. And, in regard to this particular distribution, it is not unworthy of notice, that it was made at the same time the defendant, with the other heirs, made their written agreement to indemnify the plaintiff against the payment of the note he had signed with his father. The two instruments, being parts of the same transaction, the presumption is, that the plaintiff assented to the distribution, upon the faith that the defendant, and the other heirs, would perform their agreement to indemnify him. It is their neglect, alone, to make such indemnity, that has laid the foundation of the order If) sell, and made it necessary to sell, to indemnify himself against this very claim. The defendant could have prevented the sale, by performing his agreement to indemnify; and it seems rather ungracious, on his part, to resist the sale of his land, while he is refusing to do anything toward rendering it unnecessary. But we do not put the case on this ground, because we are all of opinion, that the defendants can not now take advantage of the distribution, to defeat the plaintiff, in this action. The case shows, that, in order to raise money to pay this claim, the court of probate issued an order to sell real estate. Now, although the claim was valid against the estate, yet it did not follow, that all the land of which the deceased died possessed, was liable to be sold to pay it, at the time the order to sell was issued. If the plaintiff had confirmed the title of any distributee, and covenanted that he would never, for any purpose, procure an order to sell the land distributed to him, it would seem, that he ought to be precluded from afterward selling it. But there was, in this case, no real estate, except such as was the subject of the distribution alluded to, and, if the defendants are correct in the claim which they now make, we think the proper time for them to take advantage of it, was, either at the time the order of sale was issued, or at any rate, at the time when the return of sale was accepted by the court of probate. That court had full and exclusive jurisdiction over the subject. It was competent for the defendants to have appeared before it, and objected to the order to sell; or they could have caused the order to.be so qualified, as that it should not affect the land distributed to them. They could have objected to the return of sale, and have caused it to have been rejected and disallowed; and, we think, their omission to take any measures to prevent the sale, ought now to conclude them, in this action. Had a third person, not interested in the estate, purchased this land, upon the faith of an administrator’s, sale, upon a regular order, finding, as this order did, that the personal estate was exhausted, and that there were debts and charges, to the amount stated in the order, still unpaid, and, thereupon, ordering the real estate to be sold to pay them, we presume no one would question the validity of his title. If an innocent purchaser could not rely on such a sale, it is clear that no one can know, when he may safely purchase, under a probate sale. But if a third person would be safe, in purchasing under this order, we do not see why the plaintiff should not also be protected. As between him and the defendants, we think the matter has passed under the sanction of the only court having jurisdiction over the subject. He could have appeared, as we have seen, and resisted the application to sell the real estate of the deceased, for the benefit of the plaintiff. There, he would have had a hearing upon the effect of the distribution, made'in the manner it was. That would have been a direct attack upon the plaintiff’s right to procure the sale of the distributed estate, and a much better mode of contesting the propriety of the order, than to do it in this more indirect, and, therefore, more irregular manner. Had he done this, it is presumed justice would have been done him in the probate court; but if not, he could have appealed, and thus have procured a decision directly upon the legality of his claims. We think he ought to have taken this course; and as he neglected to do so, he ought to be concluded by the proceedings, and he can not attack them in this collateral way. We do not, therefore, advise a new trial.

In this opinion, the other judges concurred.

New trial not to be granted.


text:
    Shepard vs. Giddings.
    Secondary evidence of th:e contents of a writing, which is in the possession of a third person, residing out of the jurisdiction of the court, and which can' not be presumed to be in the possession of the opposite party, is admissible, without giving ¡previous notice to said party, to produce the original.
    This was an action of ejectment, brought to the superior , court, for the county of Litchfield, in August, 1850, to recover possession of certain premises situated in Barkhamsted; of which premises the plaintiff claimed to have been dispossessed, by the defendant. On the trial to the jury, at the August term, 1852, under the general issue, with notice of special matter, the plaintiff claimed title to the demanded premises, from the administrators of Orville Howd, deceased, under a deed made by said administrators to him, by virtue of an order of the court of probate for the district of Barkhamsted, dated July 1, 1850. The defendant claimed title to the same premises, by virtue of a deed from the said Howd, in his lifetime, dated September 22d, 1845. The plaintiff claimed, that this last mentioned deed was fraudulent and void, as against the creditors of said Howd, deceased,—and this the defendant denied. The defendant, as proof conducing to show that he had paid a full and fair price, bona fide, for the demanded premises, and that his deed was good, as against the creditors of said Howd, and against the plaintiff, as the purchaser under said administrator’s sale, among other things, offered in evidence a copy, duly proved as such, of a contract made by him with said Howd, and by him delivered to said Howd, in pursuance of an agreement made between them, at the time of the execution of said deed, from said Howd to him, accompanied by proof conducing to show, that he had, on his part, fully performed said contract. To the admission of said copy in evidence, the plaintiff objected. The defendant had given-to the plaintiff no notice to produce the original; and it was proved to the court, that the original contract had been delivered by the defendant, to said Howd, and had never been in the defendant’s possession since.
    After the death of said Howd, said original contract came into the hands and possession of Dwight Howd, a son of said deceased. Said Dwight Howd, soon after, removed to the territory of Wisconsin, and took with him said original contract, and still retains the same, and now resides in Wisconsin. The defendant never knew, nor had reason to suppose, that said original contract was in the hands and possession of said Dwight Howd, or that it ever had been, although it was proved, that the defendant himself resides, and for some time has resided, in said Wisconsin, and within five miles of the residence of said Dwight Howd. Whereupon the court overruled said objection, and admitted said copy to be read in evidence.
    The plaintiff thereupon moved for a new trial; and the question arising thereon, was reserved for the advice of this court.

      Goodwin and Hollister, for the motion.

      Hall and J. B. Foster, contra.

   Ellsworth, J.

The preliminary proof was sufficient to

allow the. introduction of the evidence offered. The original paper was in the state of Wisconsin, out of the jurisdiction of the court. Notice to the plaintiff himself, was not necessary ; for he claimed, in opposition to the paper, and could not be presumed to have possession of it, or even to have knowledge of its existence. The executor or administrator of Orville Howd, was the person, who, it should be presumed, held and controlled the paper, but whether he was still living, or if so, in this state or elsewhere, did not appear, on the trial. But it did appear, in fact, that he did not hold the paper. It was in the hands of a person in another state, not subject to the call or control of the defendant. If the defendant had indeed known, that it was in Wisconsin, he could not have compelled the possessor of it, there, to give any more than what the defendant already had, a true copy.

In this opinion the other judges concurred, except Church, C. J., who tried the cause in the court below.

New trial not to be granted.