text:
    Woodward and others vs. Camp.
    A married woman, being desirous of making a disposition of her real estate, to take effect after her decease, united with her husband, in the execution of a deed of the same, to a trustee, authorizing him to make a sale thereof, and eut of the proceeds to p4y certain sums to particular individuals, and the remainder to her legal representatives. The husband received such deed, after its full execution, upon his express promise and understanding to deliver it to the grantee, at her decease, if she should die before him. The wife having first deceased, it was held, that the title to such estate vested in the grantee, and that the' husband was bound to deliver such deed to him.
    This was a bill in chancery. In the original and supplemental bills, it was alleged, that one Martha Camp, when in life, the wife of the defendant, was the owner, in fee simple, of a certain piece of land, situated in the town of Plymouth, containing about two acres, with a dwelling-house, barn and other buildings thereon standing, and, while so in life, being desirous of making a disposition of the same, to take effect after her decease, for good and valuable considerations her thereunto moving, made and executed a deed of the same, to David D. Warner, in trust, for him to sell, and out of the proceeds, to pay certain sums to particular individuals, and the 'balance to her legal representatives. The defendant, her husband, united with her in the execution of the deed, and received the same from her, after the full and due execution thereof, upon the express promise and understanding, to deliver the same to -the said Warner, upon her decease, should she die before him.
    The said Martha had Jong since deceased, and it became and was the duty of the defendant, to deliver the deed to said Warner, that the same might take effect, according to the terms thereof; yet he had ever refused to deliver said deed to said trustee, or to any person in his behalf, or to any one beneficially interested therein. The plaintiffs, who were each interested in the conveyance, thereupon prayed for a decree, that the defendant make delivery of the deed to the trustee.
    To this bill, and the supplemental bill, the defendant demurred, and the question, as to the sufficiency of the same was, by the superior court, holden at New Haven, in April, 1853, reserved for the advice of this court.

      Baldwin and E. K. Foster, for the plaintiffs,
    contended, 1. That the instrument set forth in the plaintiffs’ bill was a deed. It was designed by them to operate as such, and was executed, with all the statute requisites, and as such was operative, from the time of its execution and delivery, and not, like a testamentary instrument, revocable at the will of one or both of the parties. Jones v. Jones, 6 Conn. R., 111. McCall v. McCall, 3 Day, 402. Stewart v. Stewart, 5 Conn. R., 317. Garnons v. Wright, 5 B. & C., 671. Verplank v. Sterry; 12 Johns., 536. Souverbye et ux. v. Arden et al., 1 Johns. Ch., 240. Belden v. Carter, 4 Day, 66.
    2. That the deed in question was delivered, in contemplation of law. Mrs. Camp had done everything that was to be done, on her part, and the execution of the deed, by Camp, upon the terms stated in the bill and admitted by the demurrer, was virtually and legally a delivery by him. He united with his wife, solely to give her a legal capacity to convey. Whiting v. Stevens, 4 Conn. R., 44.
    3. That it is not essential to a delivery, that the grantee be present. Merrills v. Swift, 18 Conn. R., 257. A deed may be delivered, and still remain in the grantor’s own custody, as bailee. 2 Green. Ev., 2989. McDonald v. Leach, Kirby, 72. Scrughan v. Wood, 15 Wend., 545. Garnons v. Wright, 5 B. & C., 671. Ruggles v. Lawson, 13 Johns., 285. Gardner v. Collins, 3 Mason, 398. Souverbye et ux. v. Arden et al., 1 Johns. Ch., 240. The same doctrine is sustained by the Connecticut cases before cited.
    This deed belongs to the plaintiffs, and the withholding of it, by the defendant, is fraudulent. And we are entitled to a decree against the heirs at law, to cut off all claim of title, by reason of the expiration of the time limited in the condition of the deed, for the execution of the trust.

      C. A. Ingersoll and Johnson, for the defendant,
    contended, 1. That Andrus Camp’s interest in his wife’s real estate having terminated with her life, the instrument in question, if given up by him, as prayed for in the bill, would pass nothing to the trustee, unless it was delivered as a deed, during the life of Mrs. Camp. Jones v. Jones, 6 Conn. R., 111. Jackson v. Leek, 12 Wend., 107.
    2. That it was never so delivered, during the life of Mrs. .Camp. It was not delivered to the trustee. There was, not only, no actual delivery to the trustee, and no person present, to whom a delivery for the grantor could be implied; but the bill shows, that the grantors had no intention of delivering it out of their control, so long as Mrs. Camp lived. It w’as not executed with a view to its present operation, but solely “ as a disposition of said land, to. take effect after the decease of Mrs. Camp.” And, pursuant to that understanding between them, it was retained in the possession of one or the other, until her decease. Jackson v. Phipps, 12 Johns., 421. Aniack v. Giles, 2 Molloy, 257, (13 Con. E. C. R., 441., d.) Scrughan v. Wood, 15 Wend., 546. The transfer of the deed, after execution, from Mrs. Camp to her husband, was not a delivery of the deed, for the use of the grantee, or to be held as an escrow. He being a party to the deed, such a delivery could not be made to him. It could only have been made to a third person, a stranger to the deed. 2 Greenl. Cruise, tit. Deed, ch. 2, s. 66-76. Shep. Touch., 57. Garnons v. Knight, 5 B. & C., 671, (12 E. C. L., 357.) He had an estate which might have lasted, (if they had issue,) after the decease of his wife. It was not only necessary for him to join with her, in the execution of the deed, but it must have been delivered as his deed, as well as hers, to have made it effective. To have operated as a conditional conveyance, it must have gone out, of the possession of both, and into the possession of a third party. The object of this instrument was, that it should take effect as a will, and the grantors clearly intended to retain that control over it, which they would have had over a will. The understanding or agreement between them, as to its disposition, after the death of Mrs. Camp, was confined to themselves, and they did nothing in pursuance of it, except as between themselves. The possession of one still continued, as the possession of both.
    . 3. That the bill showed no agreement on the part of the grantors, which a court of chancery v/ill enfoice. A married woman can only dispose of her lands, in the modes provided by the statute, viz., by deed, in which her husband must join, and by yvill. She can enter into no other contract for their conveyance, which is valid, either at law or in equity. Anan v. Merritt, 13 Conn. R., 478. Carr v. Williams, 10 Ohio, 305. Butler v. Buckingham, 5 Day, 492. Watrous v. Chalker, 7 Conn. R., 224. Martin v. Dwelly, 6 Wend., 1. Lane v. McKeen, 15 Maine, 304. 2 Kent, 168. Equity will not enforce an executory agreement or trust, unless it is upon a valuable consideration, or in favor of a wife and children. Buford Heirs v. McKee, 1 Dana, 107. McIntire v. Hughes, 4 Bibb, 186. Hayes v. Kershow, 1 Sandf., 258. 2 White & Tudor’s Leading Cases in Equity, 213.
   Waite, J.

Lands belonging to a married woman, may be

conveyed, by a' deed, executed by her and her husband. Whiting v. Stevens, 4 Conn. R., 44. And, in order to constitute a valid delivery of a deed, it is not necessary, that .it should be delivered personally to the grantee; it will be sufficient, if delivered to some third person, for the use of the grantee, although the latter was not present, at the time, had no knowledge of the existence of the deed, and never gave any authority to the person receiving it, to act in his behalf. Merrills v. Swift, 18 Conn. R., 257.

And, if a deed be delivered to a third person, to be by him kept, during the life of the grantor, subject to his order, and at his death, if not previously recalled, to be delivered over to the grantee, and the grantor die without having recalled the deed, such delivery will become effectual, and the title of the grantee consummated, in the death of the grantor. Belden v. Carter, 4 Day’s R., 66.

According to these authorities, had the deed, in the present case, been delivered to some third person, to be kept during the life of Mrs. Camp, and then delivered to the grantee, such delivery, upon her death, would have become perfected, and the title would have vested in him.

Does it make any difference, fhat the delivery was to her husband, instead of some other person ? We think not, so far as her interest is concerned. She had parted with the possession of the deed, with an intention to have the property vest in the grantee, at her decease. It was received by her husband, for the use of the grantee, and upon an express promise, on his part, that it should be delivered to him, at her death. The violation of his engagement may operate as a fraud upon the wife ; for, had she not relied upon his engagement, she might have substantially accomplished her object, by means of a will.

A father executed deeds to his two sons, and gave directions to his wife, to lodge them with the town-clerk, for record, after his decease; but kept them in his own possession, until he died. The late Chief Justice Hosrner, in giving the opinion of this court, in that case, held, that there had been no delivery of the deeds, but added, “ the case would have been different, if the deeds had been delivered to the wife, before the grantee’s decease. Jones v. Jones, 6 Conn. R., 111. We allude to the remark, although an obiter dictum, as the opinion of an eminent judge, in confirmation of our views. Our advice therefore is, that the demurrer to the bill be overruled.

In this opinion the otjier judges concurred.

, Demurrer overruled.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    Hemingway vs. Hemingway and others.
    A testator, by his will, having devised an estate in fee simple, in land, to his son J, added the follbwing clause : “ My will is, and 1 hereby appoint B, H and M, as trustees, to take into their care all the property that I have, in this my last will, given to my son J, and do further say and ordain, that the said J may be allowed the improvement, by their consent; but the property must not be disposed of, without that it is absolutely necessary for his comfort, and then, not without the consent of the above named agents.” Held, that such clause invested the appointees therein named, with the power of overseeing and advising J, in regard to the improvement of the estate devised to him, and prevented an alienation of the same, by him, in his lifetime; but, that it neither conferred upon them any legal or equitable interest therein, nor did it alter or vary the character or quantity of said estate, and consequently, that J had a devisable interest in said land.

      Where J subsequently made his will, as follows: “ All my estate, both real and personal, to me belonging, and which I shall die possessed of, alter the payment of my personal charges, and the expenses of settling my estate, I give and bequeath to my two nephews I and H;” it was held, that the word “ possessed,” as used by the testator, denoted ownership, and not merely personal and corporal occupation ; and consequently, that such portion of the land devised to J as aforesaid, by his father, as was retained until his death, and the proceeds of such part thereof as had been sold, under a resolution of the general assembly, on condition that the avails should be invested in other real estate, to be conveyed to J on the same terms, limitations, and restrictions as the estate so sold, passed, by such will, to the devisees of J.
    William Hemingway, one of the heirs at law of John Hemingway, deceased, appealed to the superior court, for New Haven county, from the following orders and decrees, passed on the 14th day of March, 1853, by the court of probate, for the district of New Haven, viz.: a decree accepting the administration account, with said estate, of Merrit Hemingway, the executor of the last will and testament of said deceased; an order to distribute and set out dower to the widow of said deceased ; and an order to distribute said estate among the devisees and legatees of said deceased, according to law and the provisions of said will. The appellant assigned, for reasons of appeal, that certain real estate, and six hundred and ninety dollars in cash, were inventoried as the property of said deceased, to be administered on by said executor, and to which said orders had referencé, and were intended to apply; that said testator did not die possessed of said property, or any part thereof; and the same never was, at any time, nor was any part thereof, during the lifetime of the testator, in the possession, or under the control of the said John Hemingway, the testator; but the same and every part thereof was, at the time of the death of said testator, and, at the time of making of said order, and long before the making of said will, had been, and ever since has been, up to the death of said testator, in the possession and under the control of said Merrit Hemingway, as trustee thereof, for the benefit of said testator, during his, the said testator’s life ; and the only interest that said testator ever had therein, was as the cestui que trust thereof, during his life; the same having been previously deeded in trust, as aforesaid, by the father of the testator and of the appellant, of whom the appellant is the heir-at-law, as well as the heir-at-law of said testator ; that, by allowing said executor’s account, and the passing of said orders, the appellant’s title to said real and personal estate was endangered and put in jeopardy.
    The cause came to the term of said superior court, holden in April, 1853, when the court found the following facts :
    On the 24th day of February, 1826, John Hemingway, senior, father of the deceased, made his last will and testament, which was subsequently duly proved and approved •by the court of probate ; by which, after providing for the payment of his debts, and making sundry bequests and devises, he devised the real estate in question to the said John Hemingway, deceased, in the following manner :

      “ I do give and bequeath to my son John Hemingway and unto his heirs and assigns forever, three pieces of land.on the lower rock quarter, which contains about ten and a half acres, more or less, $150; also about thirty-five and a half acres of land lying in North Guilford, near James Bishop’s, $500; also about five and a half acres, called the Plant Pasture, $300 ; also about two acres on the Great Hill, so called, Taintor Land, $50, estimated at $1000. The above property I have set to John, on account of money I gave to Merrit Hemingway, when he went into trade.

      “ I do give and bequeath to my beloved sons Merrit and John Hemingway, in equal portions, the residue and remainder of my estate, both real and personal, as Í. have not heretofore disposed of in my last will, on condition that they, the said Merrit and John, pay the legacies which I have in my last will given to my wife and daughter, viz., one legacy to my wife of $200, and one to my daughter Harriet of $402.41, and one to my daughter Mariah of $569.11, and one to my daughter Orilla of $525; my will is, that the' property which I have in this my last will given to my sons Merrit and John in equal proportion, shall be holden for each and every one of the legacies before mentioned in this my last will.
    “ My will is, and I do hereby appoint my father-in-law, Jo» siah Bradley, of East Haven, and Alfred Holt, of Hartford, and my son Merrit Hemingway, as trustees, to take into their care all the property that I have in this my last will given to my son John Hemingway, and do further say and ordain, that the said John may be allowed the improvement, by their consent; but the property must not be .disposed of without that it is absolutely necessary for his comfort, and then, not without the consent of the above named agents.”
    The aforesaid' $600 cash, was the proceeds of a certain mill, which was a part of the aforesaid real estate, sold by said Merrit, in the year 1842, under the authority of the general assembly, which passed a resolve, authorizing such sale, “ on condition that said Merrit should invest the avails thereof in other real estate, to be conveyed to said John, upon the same terms, limitations, and restrictions, as said John now holds said mill.”
    Before the distribution of the estate of the said John Hemingway, senior, two of the trustees, named in said will, died, and never acted under the will; and the said Merrit Hemingway, acting under his appointment, by said will, upon the settlement of said estate, took possession and charge of the estate, so devised to the said John Hemingway, Jr., for his use and benefit, accounting to him for the rents and profits, and so continued, until the year 1848, when the said John Hemingway, Jr., having married, went into the use and possession of said premises, by the permission and sufferance of the said Merrit Hemingway, and continued to use and improve them as his own, renting the same, and receiving the rents therefor, until his death, which was in January, 1852. The said $600 cash, from the time said Merrit Hemingway received the same, from the sale of said mill, as aforesaid, remained in his possession; said Merrit accounting for the interest thereof, annually, to said John Hemingway, Jr., and holding said money under said will, and the said resolve of the general assembly.
    On the 10th of April, 1843, said-John Hemingway, Jr., made his last will and testament, in due form of law, (which, after his decease, was duly proved and approved by the court of probate,) as follows, viz.:
    “ All my estate, both real and personal to me belonging, and which I shall die possessed of, after the payment of my funeral charges, and the expenses of settling my estate, of every name and nature, I give and bequeath to my two nephews, the sons of my brother Merrit Hemingway, viz., John Hemingway and Homer Hemingway, to be equally divided between them, to them, their heirs and assigns forever, and I do hereby revoke all former wills which I may have heretofore made, and I do hereby appoint my brother Merrit Hemingway, executor of this my last will and testament.”
    Said John Hemingway, Jr., was a seafaring man, and, previous to the year 1848, was frequently away from home, at-sea, and was forty-seven years old at the time of his death ; and, at the time he made his said will, he had no other property than that which came to him, under and by virtue of his father’s will.
    The appellant is the brother of said John Hemingway, Jr., of the whole blood ; the said Merrit Hemingway is his half brother, and is also father of the devisees, named in the will of said John Hemingway, Jr. !
    Upon the facts aforesaid, the question, as to what judgment should be rendered in the premises^ was reserved for the consideration and advice of this court.

      R. I. Ingersoll and Blackman, for the appellant,
    contended, 1. That no particular form of words is necessary, to create a trust; but the court will look to the intent, and so construe the instrument, as to carry that intent into effect. Donalds v. Plumb, 8 Conn. R., 447. Chamberlain v. Thompson, 10 Conn. R., 244. 2 Sw. Dig., 108, 109.
    The son John had not the power to dispose of the property, either by deed or devise,—for his father’s will directs, that “the property must not be disposed of, without that it is absolutely necessary for his comfort, and then not without the consent of the above named agents.” It was manifestly, the intent of John Hemingway, senior, that his son John was to have no control over the property,—no possession in his own right,—and no power to dispose of it, in’ any way. It can not be, that the father, thus limiting the life use, would confide to the judgment of one, deemed by him unsuitable to have even the improvement, unless by. the permission of the trustees, the entire disposition of the same property, by devise.
    2. That if John Hemingway, the younger, had the power to dispose of this property, by devise, he has not done so. The language of his will is, “ All my estate, both real and personal, to me belonging, and which I shall die possessed of” He never was possessed of any of the property in question, in his own right. He had not even the occupancy of the land, at the time the will was made, and for several years thereafter ; and though he occupied it at the time of his death, yet it was in right of the surviving trustee, and only by “'permission and sufferance.” The language of his will is satified, by applying it to the then future acquisitions which he might own and possess, at the time of his death.
    3. That, even if the language should be construed so as to include the land which he thus occupied, it can not comprehend the $600 in cash—the avails of the mill sold, which never was in his possession, nor in any way under his control, either when the mill was made, or at the time of his death. That sum, by an act of the general assembly, was in Merrit’s hands, as trustee, for a specific purpose.
    4. That no part of the real estate could be set out as dower. The statute is explicit, in confining the right to dower to “the real estate, of which her husband died possessed, in Ms own right.”

      C. A. Ingersoll and Buel, for the appellees,
    contended, 1. That John Hemingway, senior, gave his son John, an absolute estate, in fee, in all the property devised to him, subject only to the charge and control of trustees, during his life. Hungerford v. Anderson, 4 Day R., 368. 1 Sw. Dig., 146.
    It is apparent, from the language of the will of John Hemingway, senior, that no title was ever intended to be vested in trustees, and that their appointment was intended merely to secure the property, during his son’s life, for his comfort and support, and not to prevent his disposing of it, at his death, when the object of the trust had been answered. No objection to this clause has ever been made by the trustee, but it is assented to, by him.
    2. That the will of John Hemingway, Jr., conveyed the property devised to him by his father, John Hemingway, senior. The words, “ all my estate,”—“ to me belonging,”—“ of every name and nature,”—and the provisions for payment of funeral charges and expenses, and of settling his estate, showed, that he contemplated and intended a full disposition of all that he owned. The words, “ which I shall die possessed of,” do not qualify this intention, or indicate to the contrary; for, in connection with the whole instrument, they are equivalent to the expression, “ which I shall die the owner of.”
    3. That it is found, that, at the time this will was made, John Hemingway, Jr., had no estate, except that which came to him by his father’s will. He, therefore, must have intended to devise that, or the will is an absurdity.
    4. That the same accuracy of description is not required in wills, as in deeds, and where words are used, which in their strict, technical sense, are applicable only to a species of property which the testator has not, they shall be applicable to some other species of property he has, in order to effectuate his intention. 1 Sw. Dig., 137, 138. 4 Eng. L. & Eq. R., 84, 90. 9 E. L. & E. R., 196. 2 Wash. C. C. R., 475. 1 Jarman on-Wills, 353, 360,-note.
    5. That John Hemingway, Jr., was in the actual possession of the property in question, at the time of making the will, and died in the possession of it, except the $600 ; and of that he had the constructive possession.
   Storrs, J.

Two questions are presented in this case: 1.

Whether John Hemingway, second, by the true construction of the will of his father, acquired a devisable interest in the land therein devised to him ; 2. If he did, whether, by his own will, he devised that part of it which was not sold, by order of the legislature, and also the avails of the other part.

1. The first of these questions depends entirely on the import and effect of the terms of the two devises to him, in his father’s will, since the construction of that instrument is not affected, by any. extrinsic facts. His father gives, in the first of these devises, certain lands to the said John, in severalty, and, in the second, certain other lands, to him and his brother jointly. There is no doubt that, independent of the restrictive provision which is added to these devises, they convey a fee simple in those lands, to the said John. We are, therefore, brought to examine that provision, with a view of determining how far it changes or modifies them. By it, the testator appoints three persons, therein named, designating them “ as trustees,” to take into their care, all the property given in his will, to his said son, and then declares, that he may be allowed the improvement, by the consent of those persons; but that the property must not be disposed of, without it is absolutely necessary for his comfort, and then, not without .the consent of said persons, terming them “ the above named agents.” The appellant claims, that the estate in fee simple, which would, by the devises to John, if unrestricted by this provision, pass to him, is so abridged or changed by it, that his interest in the land ceased at his death, and therefore, that there was no estate then left in him, which he could devise ; for, that the effect of that provision is, to create an estate for his life, either in him, or in the appointees thus named, and a remainder in fee to his heirs, or a trust in those appointees, for his use, during his life, and afterwards for the use of his heirs. In our opinion, however, neither the character nor quantity of the estate given, by those devises, was at all altered, by that provision; nor, judging from its terms, was such the intention of the testator.

The claim, that a trust is created in these appointees, implies necessarily, that they are invested with the legal estate. But there is no devise to them, of such an estate ; and therefore, if it exists, it might be inferred, as a matter of intention, from the nature of the powers conferred by the provision in question, on them, in connection with the restriction imposed on the said John. It provides, first, that they may take into their care, all the property devised to him, and that he may be allowed to improve it, by their consent. We think that the meaning of this provision is, that these appointees are to be invested with the power of overseeing the said John, in regard to the improvement of the property, and of advising, and perhaps of directing him, as to the manner in which it shall be used ; and that, if, in their judgment, it would be proper, they might permit him to improve it, without their advice or direction. No argument is necessary, to show that such an authority, given to these persons, neither makes it necessary, nor implies, that they should have the legal title to the property. It neither creates a trust, nor an office or agency of that nature. Nor does it invest those persons with any interest or estate in the property, legal or equitable. Treat v. Peck, 5 Conn. R., 280. Their care and supervision over it is to be exercised, on his account, and for his benefit; and he is legally and directly entitled to the avails arising from its improvement. Nor do we think that his possession of the property would be divested or disturbed, by the exercise of the authority of these supervisors. Their appointment, for such a purpose, is more in the nature of an ordinary charge or agency confided to them by the testator, and for which they seem to have been selected by him, in consideration of their relationship and friendship to him and his son, for the protection of the latter, against imposition or unskillful management, than of a trust, as that term is applied to real estate, where the legal title is in one person, and the beneficial ownership in another. It is not necessary to determine, whether it would be competent for John to disregard the advice or directions of those persons, thus selected to oversee him, or whether they would have a remedy, if he should do so ; but if they would, it would be furnished on quite another ground than that they had any estate in the land, legal or equitable. See Shaw v. Lawless, 5 Cl. & F., 129. The expression, moreover, that they are to “take into their care, all'the property that I have, in this my last will, given to my son John,” confirms the preceding devise to him, of the legal estate, and imports, that he is to continue to hold such estate, and that it is his estate, which they are to take care of. Nor does the designation of these persons, “ as trustees,” in this provision, constitute them such, if the powers and duties imposed on them fall short of investing them with that character. But that term was used, in a loose and vague sense, as is evident, from the circumstance, that after-warden the same sentence, they are termed “ agents,” which, indeed, much more nearly describes their true character. The last branch of the provision in question, prohibits the disposition of the property, unless it is absolutely necessary for the comfort of John, and said appointees shall consent thereto. By this clause, no power is given to them to dispose of. it, but only the power of preventing the disposition of it, by withholding their consent to it, and it is clear, that the alienation of it, when made, is to be by John, and not by these persons. This is most plainly implied, from the requirement of their consent to the alienation, which would be senseless, or at least foolish, if they were to be the persons to aliene it. It is also equally clear, that the alienation here contemplated, and to which this restriction applies, is one to be made, during the life of John, because it is to be one which shall be necessary for his personal comfort. Such an alienation could be made only by deed, and not by devise. Hence this restriction only prevents an alienation, under the particular circumstances mentioned, by John, in his lifetime, by deed; and to that extent only, detracts from the.full power which ensues, and is incident to the ownership of property in fee. Nothing, therefore, in this clause strengthens the claim of the appellant, that any estate or interest was intended 'to be vested in these appointees, or that the estate of John was to cease at his death. The result is, that the interest in the land which was devised to him, by this will, being an estate in fee, was devisable by him.

2. We think that, by the true construction of the devise, in the will of John Hemingway second, it embraced all the property of which he died the owner, and that the word “ possessed,” was used in it, to denote ownership, and not merely personal or corporal occupation. Therefore, the portion of the property devised to him by his father, and which he retained, until his death, and also the avails belonging to him, in the hands of his brother, of that part of it which was sold, under the resolution of the legislature, passed by his will to his devisees.

We therefore advise the superior court, to affirm the decree from which this appeal is taken.

In this opinion, the other judges concurred.

Decree affirmed.


author: Hinman, J.

text:
    Aguirre and another vs. Parmelee.
    JYhere the vendor has the right of stopping goods in transitu, such right continues, until there has been a full and final delivery of them, at the place named by the purchaser, to the vendor, as the place of final delivery or ultimate destination, as distinguished from a delivery to a person acting as a carrier, or a forwarding agent to the purchaser.
    Wool was purchased in New York, by a manufacturing corporation, located at T, through their agent A, to be paid for by the paper of the purchasers, when delivered at T. Upon an order of the vendor, to deliver the same to the purchasers, or bearer, such wool was delivered to A, by the storekeeper, who had possession of it, for transmission. A was also agent of another manufacturing corporation, located at S.. and it was his usual course, of business, to divide between said corporations, large lots of wool purchased for either, each company giving its own notes for its respective shares, when received. A, having divided the wool purchased of the plaintiffs, forwarded one portion thereof to the corporation located at S; without the knowledge of the vendor. Before the wool, so forwarded, was received, both said corporations became insolvent, and such wool was attached, as the property of the corporation at S. In an action of trover, against the officers who served said attachment, it was held, that the transitas of said wool was not terminated, either by the plaintiffs’ order upon the store-keeper, the acts of the agent of such corporations, or the attachment of the defendant.
    This was an action of trover, for forty seven bales of African wool, brought against Leander Parmelee, sheriff of the county of New Haven.
    The defendant pleaded the general issue, with notice of special matter to be given in evidence.
    The cause came on for trial, before the superior court for New Haven county, at the April term, 1853, when the court found the following facts, and reserved the question, as to what judgment should be rendered thereon, for the advice of this court.
    On the 12th of September, 1851, the plaintiffs, being merchants, engaged in the foreign trade in the city of New York, and having a lot of wool in a custom-house store in that city, sold to the Thompsonville manufacturing company, a corporation located and engaged in the manufacture of carpets at Thompsonville, in the town of Enfield, in this state, one hundred bales of said wool, to be paid for, by the Thompsonville company’s paper, at six months.
    Nothing was said at the time, as to the time when the paper should be given, but it was customary in such cases, to send the paper forward, when the article arrived at the place to which it was to be sent; and it was the understanding of the plaintiffs, that the paper was to be given, when the wool arrived at Thompsonville.
    The sale was made in the city of New York, the plaintiffs being applied to by Ripley & Cameron, wool brokers in that city, through whom all their negotiations were made. No other party than the Thompsonville.Co. was mentioned to the plaintiffs, as in any way interested in the purchase. The plaintiffs never having had any previous dealings with the company, and being ignorant of. its existence, the broker described to them its locality, explained its business, representing that the wool was wanted by it, for purposes of manufacture, and gave them references in New York (on being required by the plaintiffs) as to its character and credit; the information received by the plaintiffs, on these references, proving satisfactory, the sale was concluded, and the following contract of sale was given to the plaintiffs, by the brokers.
    “ Sold for Messrs. Aguirre and Galwey,—to the Thompsonville company,—say Y. M. 100 bales washed African wool, at 20 cts., six months. Tare 8 lbs. per bale. ‘ New York, September 12,1851.
    J. Ripley & Cameron,
    per John J. Ripley.”
    A corresponding entry was made in the books of the brokers, and a similar entry and charge were also made in the books of the plaintiffs.
    At the time of this sale, Orrin Thompson was the general agent, in the city of New York, of the Thompsonville company, to purchase wool on account of the company, to be transmitted to their factory at Enfield. He was also an agent, for a like purpose, of the Tariff Manufacturing Company, a corporation also engaged in the manufacture of carpets, at Simsbury, in this state. His office in New York was at the counting-room of Thompson & Co., a firm which had the selling of the manufactures of the two companies in that city : but he was not a member of said firm. His course of business, as the agent of those companies, was to make purchases for, and transmit to, the companies, at their respective factories, and in making a large purchase of wool, it was his general custom to divide the lot purchased, equally between the two companies, each company giving its own note, for its respective lot when received. He had been in the habit of making his purchases of wool, principally, through the brokers, Ripley and Cameron, and they were acquainted with his agencies and his mode of business. In directing the purchase in question, he gave no instructions to the brokers, not to buy, on account of the Thompsonville Company, nor did he tell the brokers, that any part of the purchase was intended for the Tariffville Company, nor did the broker communicate to the plaintiffs, his relations to the Tariffville Company, or his mode of dividing purchases made by him, nor was the existence of the Tariffville Company known to the plaintiffs, until after they had parted with the possession of the wool.
    On the 17th day of September, the plaintiffs received from Ripley and Cameron, a written order to “deliver the wool, purchased on account of the Thompsonville Company, to the bearer” of the order, and thereupon the plaintiffs gave said bearer, who was a porter, in the employ of Thompson & Co., and was sent by Orrin Thompson, (though not known to the plaintiffs,) an order, in their usual form, upon the keeper of the store where the wool was; of which order the following is a copy :

      New York, Sept. 17, 1851.
    Mr. James Meldrem :—Please deliver to Thompsonville

      Company, or bearer, Y. M., ninety-jive bales wool, stored at 5 West St. *

      Ex. Theresa

      And oblige,

    95 bales. Aguirre Galwey.

      Exhibit B. F. R. G. per Daril W. Teller.

    On the 18th Sept., the wool was delivered from the store, upon that order, to the person presenting- it. Before being taken from the store, the wool, without the knowledge of the • plaintiffs, was, by direction of Orrin Thompson, acting as agent, as aforesaid, for both of the companies, divided into two lots, one of fifty-three bales, and the other of forty-seven bales, the former of which was, at the same time, marked for transportation to the Thompsonville Company, and the latter marked for transportation to the Tariff-ville Company. On the same day, the lot of forty-seven bales was freighted by Orrin Thompson, to the Tariffville Company, by the New York and New Haven R. R. and was received, by said Railroad Company, for transportation to Tariffville.
    On the 17th, the plaintiff sent to Ripley and Cameron, a bill for the wool purchased, which bill was as follows :
    “New York, 12th Sept., 1851.
    The Thompsonville Company,
    Bo’t of Aguirre & Galwey.
    Y.M.100 bales washed Mazayan Wool, viz.: 31,000 lbs gross,
    Tare of 7 lbs. per bale, 700
    30,501 lbs. net
    c. 20 + $6100.25”
    6 Months. Please draw in three notes, to your own order.
    This was the only bill ever rendered from the plaintiffs, or of which they had any knowledge. On the 19th, Mr. Orrin Thompson sent, by mail, to the Tariffville Company, the following bill, with letter subjoined.

      New York, September 15, 1851.
    Tariff Manufacturing Company,
    Bought of Aguirre and Galwey.
    Y. M. 47 bales washed Mazayan wool, weighing as per return, viz.: Total weight 4,957
    Tare 7 lbs per bale 329 14,628 lbs.
    at 20 cts. per lb., is $2,925.60
    6 months.
    “New York, Sept. 19th, 1851.
    Mr. John Turnbull,—Dear Sir :
    Above you have bill and return weight for 47 bales wool, which was sent forward yesterday. Orrin Thompson.”
    It was the general course of business, with the plaintiffs, and other merchants engaged in similar business in the city of New York, when selling merchandise to a manufacturer, at a distance, and where the place of manufacture was contemplated as its ultimate destination, to receive the notes of the purchaser, agreed to be given in payment, on the receipt of the merchandise, at its place of destination; and such was the understanding of the plaintiffs, in the present sale; nor, during the negotiations, did Ripley and Cameron, or any one else, at any time, give the plaintiffs to understand differently.
    The plaintiffs never received the notes of the Thompson-ville Company, agreed to be given for the one hundred bales of wool, nor did they ever receive the notes, or any obligation of either the Thompsonville or the Tariffville Company, for the lot of forty-seven bales, sent as before stated, to the Tariffville Company. After the present suit was brought, the Thompsonville Company sent to the plaintiffs, by mail, their Company note, for a sum corresponding with the value of the lot of fifty-three bales, before mentioned, requesting an acknowledgment of its receipt; but the plaintiffs did not acknowledge its receipt, or enter it upon their books, but retained it in their possession.

      On the 22d of Sept., 1851, the Thompsonville Company, and the Tariffville Company, being deeply insolvent, failed, and the plaintiffs immediately thereupon took steps to recover the wool, in its transit to Thompsonville. The lot of forty-seven bales, which had been freighted to Tariffville, was found in the possession of the defendant, Parmelee, having been by him attached, while in the cars of the New York and New Haven Railroad Company, by virtue of a writ of attachment against the Tariff Manufacturing Com pany.
    The plaintiffs, by their agent, thereupon, on the 24th of Sept., 1851, made demand upon the defendant and upon the Railroad Company, for the wool, with atender to each, of all charges, but the same was refused, and thereupon the present suit was brought. The value of the forty-seven bales, at the time of the demand, was $2,925.60. Execution was taken out by the Railroad Company, upon a judgment recovered in said suit, and the property levied upon and sold, in due form of law.

      R. I. 4" C. R. Ingersoll, for the plaintiffs,
    contended, 1. That the plaintiffs never legally parted with their possession of the property in question. No contract of sale arises upon the facts found. The plaintiffs never agreed to sell their wool to any other party, than the Thompsonville Company, nor to accept any other party as théir debtor, for any portion of it. On the other hand, the Thompsonville Company have never recognized a sale to them, of the entire lot. The sale note, rendered by the brokers to the sellers, and the bills rendered by Orrin Thompson to the supposed buyers, described different bargains. The minds of the parties never met, upon any contract to which the Tariff-ville Manufacturing Company was a party. Baldwin, &c. v. Mildeberger, 2 Hall, 176. Long on Sales. (Am. Ed.) p. 5. Suydam v. Clark, 2 Sandf. Sup. Ct., 133.

      2. That if there was a valid contract of - sale to the Thompsonville Company, the property in question was not taken out of the possession of the plaintiffs, upon that contract. Orrin Thompson, or the bearer of the delivery order, acting under his directions, must have received the forty-seven bales, as the agent of the Tariffville Company. And, whether the wool in question was taken from the plaintiffs, by the Tariffville Company, through the mistake or fraud of the Company’s agent, it never went legally out of their possession.
    3. That if the plaintiffs parted with the possession of the wool in question, upon their contract of sale with the Thompsonville Company, they could resume their possession, upon the insolvency of that Company, before the wool had reached the factory of the Company, at Thompsonville, the place of its destination, originally contemplated by the parties, by virtue of their right of stoppage in transitu. Coats v. Railton, 6 B. & C., 403, (13 E. C. L., 223.) Jackson v. Nichol, 5 Bing., 508, (35 E. C. L., 203.) Hays & Black v. Mouille Co., 14 Penn. (2 Harris.) 40. Buckly v. Furniss, 15 Wend., 137. Newhall v. Vargas, 13 Maine, 93. Stubbs v. Lund, 7 Mass., 456. Blackburn on Sale, 201. The wool had not reached the destination, contemplated at the time of sale. It was purchased (the case finds) for “ purposes of manufacture.” The “ locality” of the company was represented to the plaintiff, by the broker, as at Enfield. The notes to be giyen, for the purchase, were to be given, “ when the wool arrived at Thompsonville.” “The place of manufacture was contemplated as its ultimate destination.” There it was to be “ applied to the use” of the purchaser.
    4. That the transit of the wool was not determined by, anything done by the Thompsonville Company, or its agent, before it reached the destination, contemplated at the time of sale. The object and effect of the order of the plaintiffs, upon the store-keeper, to deliver the wool “ to the Thompsonville Company, or bearer,” was simply to put the wool in transit. The right to stop, in transitu, implies a delivery to some intermediate agent. Jackson v. Nichol, 35 E. C. L., 203. Orrin Thompson had no authority from the Thompsonville Company, to take the general control of the wool for them, and thus determine the transit. The case finds, that he was merely their “ general agent in the city of New York, to make purchases of wool, on account of the Company, to be transmitted to their factory at Thompsonville,” and that, “his course of business, as the agent of the Company, was to make purchases for, and transmit to, the Company, at its factory.”
    5. That Thompson, in fact, did nothing but to send the wool forward to its destination, as he supposed it to be. The division, which the case finds he directed to be made, as “the agent of both Companies,” was a preparatory step for its transportation. He did nothing else, except to direct the wool to be “ marked for transportation,” and to freight the parcel in question, to Tariffville, whither, as is evident from his letter to that Company, he supposed it was to be “ sent forward.” And all this was done, “on the same day.” Upon the same principles, the plaintiffs had a right to stop the wool, in transit to Tariffville, if it shall be contended that there was a sale, by them, to the Tariffville Manufacturing Company.
    6. That the right of stoppage in transitu, is not defeated, by an attachment, in favor of the creditors of the vendee. Smith v. Gass, 1 Camp., 282. Woodruff v. Noyes, 15 Conn. R., 335.

      Dutton and C. A. Ingersoll, for the defendants,
    claimed, 1. That the facts found by the court show, that the title to the goods had vested in the Thompsonville Company. So far as the defendant is concerned, this deprives the plaintiffs of a right of action.
    2. That the vendor has no right to a stoppage in transitu,
      when the goods have been delivered to the vendee, or an agent, authorized to take charge of the goods. Woodruff v. Noyes, 15 Conn. R., 335, 340. James v. Griffin, 1 Mees. & W., 20. 2 Mees. & W., 623. 8 Taunt., 83, 4 E. C. L., 27. Coats v. Railton, 6 B. & C., 422, (13 E. C. L., 225.) Thompson was the agent of the vendees. A delivery to him was a delivery to the vendees. It was the ordinary case of a purchase, by a mere agent, who, of course, has a good right to receive the goods.
    3. That Thompson had authority, in New York, to dispose of the goods, at least to the Tariffville Company. This had been his course of busifiess. The plaintiff had nothing to do with sending the goods to Thompsonville or Tariffville. Thompson, as the agent of both companies, put them on board the cars.
    4. That the fact found, that the goods were not to be paid for, until received by the vendees, shows, that the payment was not a condition precedent. The plaintiff had no agent, to receive the notes; he relied on the vendees, to send them after they had received the goods. Lupin v. Marie, 6 Wend., 77.
    5. That the vendees were under no obligation to transport the wool to Thompsonville. The plaintiffs supposed it was to go there, but that created no obligation; they were entitled to the notes in payment, as soon as Thompson hád taken possession of the wool, or, at least, as soon as he exercised ownership over it.
   Hinman, J.

Upon the facts found by the court, in this case, we are of opinion, that the plaintiffs are entitled to judgment. If we look at the case, as the plaintiffs must have viewed it, at the time they ordered the goods to be stopped, which is, perhaps, the most natural aspect in which it is presented, by the facts, it is clear of all difficulty and doubt. The Thompsonville Company, through the agency of Mr. Orrin Thompson, purchased of the plaintiffs, in New York, a large quantity of wool, including the forty-seven bales in question ; and, while it is on its transit, from New York to Connecticut, before it comes to the possession of the vendees, and on their failure, without paying for the wool, or, in any form, complying with the terms of the contract, on which it was sold, the bales- in question were stopped by the plaintiffs at New Haven. These facts make out the ordinary case, where the right to stop goods, in transitu, is said to attach; and the questions in the case seem all resolved into this, whether there is any thing in the other facts, shown in the finding, which will deliver the case from the operation of the rule of law, in regard to the right of the vendor to stop goods in transitu. The defendant’s counsel rely,in the first place, upon the delivery of the goods to Orrin Thompson,in New York; claiming, that the right to stop them was terminated by that delivery. We, however, do not think that can be said to be such a delivery as to put an end to the vendor’s right to stop them in transitu. The delivery was not to him, as owner, nor, as agent of the owners, to dispose of them in any other way than to transmit them to the vendees’ place of business. The finding is, that he was the agent, of the vendees, to make purchases of wool, to be transmitted to Thompsonville, and this seems to be the extent of his agency. He stood, therefore, rather in the position of a mere forwarding agent, than in that of an agent to receive the goods for the vendees’ use; and no point is clearer than that a vendor, where the right to stop in transitu exists at all, may stop the goods in every sort of passage to the hands of the purchasers. Stokes v. LaRiviere, cited, 3 E., 397.

We do not say, as was intimated by Lord Mansfield, in Hunter and another v. Beal, cited, 3 T. R., 466, that “the goods must have come to the corporal touch of the vendees.” But, to take away this right, there must have been an absolute delivery in New York, for the use of the vendees, and it must have been a full and final delivery, as contradistinguished from a delivery to a person, acting as a carrier or forwarding agent to the principal. Dixon v. Baldwin, 5 E., 134. And this delivery should be at the place named byj the purchaser, to the vendor, as the place of final delivery,' or ultimate destination of the goods. They must either come to the actual possession of the vendee, or to that place where, by his authority, they are destined to come, for his use, and where nothing further is to be done with them but to sell them to a customer, or apply them to his use. Coats v. Railton, 13 E. C. L., 223. Jackson v. Nichol, 35 E. C. L., 203. Stubbs v. Lund, 7 Mass., 453. According to this test, the transitus, in this case, would continue until the wool arrived at Thompsonville, which was the place where it was to be sent, for the use of the purchasers.

It is said, however, in answer to this, that the agency of' Orrin Thompson for the Tariffville Company, at Simsbury, in connection with his agency for the Thompsonville Company, and his general course of business, as the agent of both companies, of dividing the large lots of wool which he purchased for either of them, between the two, and each company giving its own note for its respective lot or share, when received, justified him in dividing the wool which he purchased of the plaintiffs, between these two companies, as he did; and that this division, and the transmission of these forty-seven bales to the Tariffville Company, took away, and destroyed the plaintiffs’ right to stop these goods, on their' way to the latter company. On any question between these two companies, where the interests of third persons are not involved, it is .no doubt true, that Mr. Thompson had authority to divide the lots of wool which he purchased for either, between them both. But the plaintiffs were not privy to any arrangement of this sort, and their interests ought not to be affected by it. They had no connection with the Tariffville Company. That company was not named to them ; and they did not even know of its existence. It seems clear, therefore, that the plaintiffs are not bound to recognize the Tariffville Company, as having any interest whatever in the goods, so long as they were on their transit. Indeed, .it is by no means clear, that the plaintiffs are not rigfyt, in claiming, that, in respect to them, the division of the goods, and the sending of a part of them to Tariffville, is such a departure from the understanding and agreement of the parties, as to-justify them in retaking their goods, 'on the simple ground, that they had never legally parted with their possession of them, irrespective of their right to stop them in transitu. As the plaintiffs did not know the Tariffville Company in the transaction, they had never agreed to accept of that company, as their debtors, for any portion of the wool, and, as the Thompsonville Company never forwarded their note for the whole purchase, and do not appear to have been advised, of the purchase of the whole lot, by their agent, but only of the part sent to them, it would not, perhaps, be going too far to say, there was such a mutual misunderstanding, as rendered the contract inoperative. But, however this may be, we do not feel called upon to determine it; and we do not place the case on this ground. The defendant claims the goods, by virtue of an attachment of them, as the goods of the Tariffville Company. Of course, he claims, and must claim, that the act of Orrin Thompson, in dividing the goods'into two lots, and sending the forty-seven bales to the Tariffville Company, was a legal and valid act, not only in respect to the two companies for which he was agent, but also in respect to the plaintiffs. He, therefore, seeks to affirm that act, by claiming the property under it. Now, when it is shown, as in a. former part of this opinion, we have said it is shown, that there was no absolute delivery of the goods in New York,’ to the purchasers, or to Orrin Thompson, for their use, as owners of them,—but only to him as a forwarding agent, it is obvious, that, while the defendant claims the goods, under the act of Orrin Thompson, he must, also claim them to have been purchased by the Tariffville Company, of the plaintiffs. But, upon this claim, the plaintiffs must also be at liberty to affirm that transaction, as. a sale from them, and to waive the irregularity, arising from the absence of any previous consent to the sale, on their part. On doing, this, they, of course, have the same right of stoppage in transitu, against the Tariffville Company, that otherwise they would have had against the Thompsonville Company; and, as the finding is, that both these companies became insolvent, and failed at the same time, on the 22d of September, 1851 ; and as the plaintiffs stopped the goods at New Haven, before the contract had been complied with, by either company, we do not see why the plaintiff, as against the defendant, who claims the goods, only on the supposition that there was a sale to the Tariffville Company, had not a right to stop them, (as against that company, and the defendant who claims under it. We, therefore, have not been able to perceive any ground, on which the defendant can retain the goods, as against the plaintiffs, and we accordingly advise the superior court, to render judgment for the plaintiffs.

In this opinion, the other judges concurred. 4

Judgment for the plaintiffs.


author: Ellsworth, J.

text:
    Hatch vs. Spofford.
    The defendant, In an action of account, pleaded in abatement, that, before the commencement of the action, the plaintiff and defendant then being inhabitants of the city of New York, the plaintiff brought his bill in equity, before the supreme court of that state, in which the defendant, in obedience to a subpcena, appeared, and submitted to the jurisdiction of said court, and filed his answer, on oath; that said bill was still pending before a court having jurisdiction over the parties and over the subject matter, so that a judgment therein would be conclusive between the parties to said action of account, and a bar to the'same, and that the defendant was served with process, while on a journey through this state ; held, that this plea was insufficient to abate the plaintiff’s writ. The case of Mart v. Granger, 1 Conn. R., 154, commented on.
    This was an action of account, brought to the superior court for New Haven county, by Ansel M. Hatch, against Paul Spofford, demanding six hundred thousand dollars damages.
    The defendant pleaded in abatement, that the plaintiff’s, writ was issued on the 23d day of November, 1852, and was served on the defendant on said day, while the defendant was on a journey through the state of Connecticut, in the town of Wallingford, in said state,- he, the said defendant, at the time, being an inhabitant of the state of New York, and not an inhabitant of the state of Connecticut; and was no otherwise served than as a summons on said day, and was served on the défendant, at no other time, or in no other manner, or way; that, before the. beginning of said suit, and before the service of saidowrit on the-defendant as aforesaid, to wit, "on the 22d day of November, 1847, the plaintiff, then being an inhabitant and resident of the city of New York, in the state of New York, exhibited his bill in equity before the supreme court of the state of New York, in the city and county of New York, against the said defendant, he, said defendant, then being also an inhabitant and resident of the city and state of New York, for the same matters, causes, and things, and subjects of controversy, as mentioned in the plaintiff’s declaration, in the present suit, and for the same matters, causes, things and subjects of controversy, for which the present suit was brought; upon which said bill in equity, a subpoena was duly issued, and was duly served upon this defendant, he then being an inhabitant and resident of said city of New Fork; and in obedience to which said subpoena, the defendant appeared before said supreme court, to which said bill in equity was brought, and submitted himself, to the jurisdiction of the same, and, on the 29th day of March, 1848, filed his answer, duly sworn to, to the said bill in equity; as by duly exemplified copies of the files, records, and proceedings of said supreme court of the state of New York, in court to be produced, will appear ; the said files, records, and proceedings, there now remaining in said supreme court of said state of New York, in the office of the clerk of said city and county of New York; and that said suit in equity, so brought before said supreme court of the state of New York, at the time of the service of the writ in the present suit, on the defendant, at the time the present suit was commenced against the defendant, was pending in said supreme court, and undisposed of, and that the parties in 'said former suit, in the state of New York, and in this suit, are the same and not other or different persons, and that the present suit was brought for the same matters, causes and things, as the said suit in equity before said supreme court, and for no other matter, cause or thing, and that said supreme court, in the state of New York, before which said suit in equity was pending, as aforesaid, at the time the present suit was commenced, had jurisdiction over the parties to said suit in equity, and over the subject matter of said suit; so that a judgment in said suit in equity would be conclusive between the parties in this suit, and the subject matter thereof, and bar the same.
    To this plea, the plaintiff demurred, and the questions of law thereon arising were reserved for the advice of this court.

      Baldwin, R. I. and C. R. Ingersoll, and Beach,

    after remarking that the defendant, having been served with process within the territory, is amenable to the jurisdiction of the courts of this state, unless they are deprived of the jurisdiction they would otherwise have had, by the pendency of the suit in New York, contended, 1. That, irrespective of the effect of proceedings in rem, or of judgments rendered by courts having jurisdiction of the parties and subject matter, it is believed that, in regard to transitory actions, in personam, the law is perfectly well settled, as between foreign states, that a Us pendens in one, is no cause of abatement of a subsequent suit, against the party in another jurisdiction.

      2. Jt does not come within the principle on which a second suit in a domestic tribunal is abated, which is, prima facie, regarded as vexatious. But, even within the same jurisdiction, if it be made to appear that any advantage, in point of justice or security, is attained by the second suit, it will not be abated by the pendency of the first. Ward v. Curtiss, 18 Conn. R., 290. Quinebaug Bank v. Tarbox, 20 Conn. R., 515. Gould’s Pleading, 285. But, from the mere fact that a suit is pending in a foreign jurisdiction, for the same matter against the same party, afterwards found here, it does not, prima facie, appear to the court, that the second suit is vexatious. As the courts do not take judicial notice of the laws of foreign states, they can not know that the defendant may not have an available defence to the remedy in the foreign state, of which, by the policy of the state where the - second suit is brought, he would not be allowed to avail himself.
    3. Whatever may be the effect of judgments rendered, in regard to their conclusiveness, when sought to be enforced in foreign states, it is certain that, until final judgment has been rendered, the original cause of action remains unchanged, and, though the weight of authority seems to be in favor of the conclusiveness of such judgments, it has been uniformly held, that the pendency, merely, of a suit in one jurisdiction, is no cause of abatement of a suit, subsequently brought in another. Maule v. Murry, 7 Term R., 470. Imlay v. Ellefsen, 2 East, 463. Bailey v. Edwards, 3 Swanst., 703. Bank v. Nias, 4 Law Eq., 252.
    4. The defendant relies on the fourth article of the constitution of the United States. It has been decided, under this clause, and the act of Congress, of May 26th, 1790, that “ if a judgment has the effect of record evidence in the courts of the state from which it is taken, it has the same effect in the courts of every other state. Consequently, that nil debet is not a proper plea. Mills v. Duryee, 7 Cranch, 481. But it does not thereby acquire the force of a domestic judgment in another state. It establishes, by record evidence, the debt conclusively. But it is no less a foreign judgment than it would have been, if there had been no such provision in the constitution. McElmoyle v. Cohen, 13 Peters, 312. The statute of limitation may be pleaded, in bar of a suit brought on it in another state, though such statute was not applicable to domestic judgments, and though no such statute existed in the state where such judgment was rendered. It simply establishes the debt, but furnishes no means of enforcing it, by execution in any other state, or otherwise than by another' suit upon the judgment.
    5. A pending suit has no effect whatever upon the cause of action, in another jurisdiction. Until the court has acted upon it, the transcript of the proceedings will prove in another state, only, that such proceedings are pending. But when those proceedings merely show that a cause of action, transitory in its nature, is in litigation between the parties, they show a fact, which has all the faith and credit given to it, to which it is entitled in another jurisdiction, when its existence, as a fact, is recognized. Nothing is shown which affects the cause of action, or which presumptively renders a second suit in another state where the defendant is found, vexatious or unnecessary. The same considerations which are applicable to a second suit, in a jurisdiction wholly foreign, are equally applicable here. The process of the court before which the first suit was brought, will not reach the defendant, or his property, in his new location. The defendant, by his answer on oath to the bill in chancery, pending in New York, may have an advantage which it may not be in the power of the plaintiff to countervail, by disinterested testimony; whereas, in the suit in Connecticut, the parties, by the policy of our law, will stand upon an equal footing. The defendant has not stated, in his plea, the character of the defence, set up in answer to the bill in equity. Suppose it to be the statute of limitations. A judgment even, upon that plea, would only be evidence of the fact, that the remedy was barred in that state.
    6. That the decisions in the state of New York, in regard to the effect of a lis pendens in another state, are conformable to the English rule. Bowne v. Joy, 9 Johns., 221. Walsh v. Durkin, 12 Johns., 100. Mitchell v. Bunch, 2 Paige, 606. Godfrey v. Hall, 4 Miller, Lou. R., 158. 2 Kent Com., 124.
    If the exercise of jurisdiction, where it exists, were not demandable of right; if, in such case, it could ever be regarded as discretionary on the párt of the court, there can be no claim, in view of the decisions in the state of New York, that the courts in this state are bound, by any rule of comity to the judicial tribunals of New York, who do not themselves recognize any such obligation, to forbear the exercise of jurisdiction.
    7. That the case of Hart v. Granger, 1 Conn. R., 154, was decided, before the decision of the supreme court of the United States, in 2 Peters-, 586, (since generally followed in this state and elsewhere,) that the states of - this union are to be regarded as foreign to each other, except so far as they are united, by the constitution, for national purposes.
    The property to be affected by the decision in that case, was land situated in Ohio, and the proceeding on the bill- in equity, pending in that state, seems to have been' regarded as a proceeding in rem. And it is believed that it has not been regarded by the court, or by the profession generally, as establishing the doctrine claimed by the defendant in this case.
    8. That the plea in abatement to an action at law, on the ground of the pendency of a bill in equity, for the same matter, between the same parties, in another court, it is believed, has never been sustained in any court, foreign or domestic. Blanchard v. Stone, 16 Vermont, 234.
    9. That the plea refers to the plaintiff’s declaration, and avers that the bill in equity, which was filed November 22d, 1847, was for the same matters, causes, things, and subjects of controversy, as mentioned in the plaintiff’s declaration, in the present suit. But the declaration thus referred to, charges the defendant, as bailiff, &c., and demands an account from the 22d of March, 1819, until the first of November, 1852, including a period of five years, after the filing of the bill in equity.

      G. A. Ingersoll, contra,
    contended, 1. That if a suit is pending before any court, and while it is thus pending, another suit is brought, by the same plaintiff, against the same defendant, for the same matter, cause and thing, and if a judgment, rendered in such former suit would be considered by the court before which the latter suit is brought, as conclusive between the parties, and binding upon them, so that such judgment could be pleaded in bar to the latter suit, then the pendency of such former suit could be pleaded in abatement of the latter one. Hart v. Granger, 1 Conn. R., 171. Newell v. Newton, 10 Pick., 471. 3 Watts & Serg., 399. 2 Doug., 244. Mills v. Duryee, 7 Cranch, 481.
    That a judgment, rendered by the supreme court of the state of New York, would be considered by our courts, as merging the original cause of action ; that it would be a bar to a suit brought in this state, for the same matter, cause and thing ; that it would be conclusive between the parties, and binding upon them, so that such judgment would estop them from further litigating the matter in controversy; that it would have as full effect, as a judgment rendered by the courts in this state. Hampton v. M’Connell, 3 Wheat., 234.
      Andrews v. Montgomery, 19 Johns., 160. Hall v. Williams, 6 Pick., 232. Then it follows, that the plea in abatement is sufficient, and that the present suit must abate and be dismissed.
    2. That there could be no doubt, in the mind of any one, were it not for certain decisions in the state of New York, in which it has been held, that the pendency of a prior suit, in the courts of another state, would not abate a subsequent suit, for'the same matter, cause and thing, brought before the courts in that state. Bowne v. Joy, 9 Johns., 222. Walsh v. Durkin, 12 Johns., 99.
    But the supreme court of the United States, in the seventh of Cranch, and in.the case in the third Wheaton, already cited, have determined, that the premises upon which those decisions were based, were false. Even in the state of New York, it has been decided, that a foreign attachment, or trustee process, pending in another state, might be pleaded in abatement of a suit, subsequently brought in that state. Embree v. Hanna, 5 Johns., 101. Forest v. Leavitt, 1 Hall, 137. But this point has been expressly decided, in our own state. Hart v. Granger, 1 Conn. R., 154. In the case of Newell v. Newton, 10 Pick., 470, Shaw, C. J., in giving the opinion of the court, intimates that if, in the plea in abatement, it had been alleged, that the court in the state where the prior suit was pending, had jurisdiction of the parties, and of the subject matter of the suit, the plea would have been sufficient to abate the second suit. Ex parte, Balch, 3 McLean, 221. Renner, &c., v. Marshall, 1 Wheat., 215. 3 U. S. Cond. R., 547. Gelston v. Hoyt, 3 Wheat., 246, 4 U. S. Cond. R., 244. 2 Kent’s Com., 125, note. 3 Watts & Sergt., 399. 2 Doug., 244. The effect of the judicial proceedings in the state of .New York, the faith and credit given to them in that state, would be to abate this suit, if it was pending there ; and they must then have the same effect here. The judicial proceedings of another state are to have the same faith and credit given them in this state, as if they had taken place in this state. If the proceedings had in New York, had been had in this state, then, undoubtedly, they would abate this suit.
    3. The proceedings and judgments of the courts of the state of New York, are not foreign proceedings and judgments. If they were foreign judgments, then an action of debt on judgment would not lie in this state, upon them. 1 Chitty’s Pleading, 120. 11 East, 124. Douglass, 4. But, debt on a judgment of a court in the state of New York, is the proper action, to recover the amount of that judgment, before a court in this state. Our courts would consider it, when regular, as merging the original cause of action; and, as a bar to a suit for the original cause of action, brought in this state; nul tiel record would be the proper plea to it, and it would be binding and conclusive upon the parties here. Hall v. Williams, 6 Pick., 232. 7 Cranch, 481. 3 Wheat., 234. The state of New York is not a foreign state. The citizens thereof, and the citizens of this state, are citizens of the same state, and that state is the United States. It is a restricted, independent state, but not a foreign state. Courts in this state, have never considered another state as a foreign state. The courts of Westminster Hall consider as foreign judgments, all to which they do not give full faith and credit, and which are rendered by courts, which have not concurrent jurisdiction with them; as a Scotch judgment,—an Irish judgment,-—a Canada judgment. The plea involves a matter of fact, which can not always be determined by the record.
   Ellsworth, J.

The defendant’s plea in abatement states,

that the plaintiff and defendant are inhabitants of the city of New York,—that the plaintiff has there instituted and is prosecuting a suit against the defendant, in a court of chancery, for the same matter, cause, and thing,—that the defendant has there appeared, filed his answer, and submitted to the jurisdiction of the court,—that the court has full jurisdiction to adjudge the matter, and its judgment will be a conclusive bar to the controversy. To this plea, the defendant has filed a demurrer, and thereby admits the truth of the allegations, at least for the purpose of trying the demurrer.

The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at the common law, good cause of abatement. It is so, because there can not be any reason or necessity for bringing the second ; and, therefore, it must be oppressive and vexatious. But while the law is thus careful to screen the defendant from oppression and vexation, it is equally impartial and open to the plaintiff, and I may say, even indulgent, in permitting him, a creditor, to seek redress, by pursuing several remedies at the same time, if this is found to be reasonable and necessary. It will not countenance vexation and oppression, neither will it prevent a creditor from Using, in a fair manner, the means in his power to collect his debts.

Now, the plea of a prior suit is to be looked at, in just this impartial view. The rule above stated is not a rule of unbending rigor, nor of universal application, nor a principle of absolute law,—it is rather a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. It should be remembered, that a dilatory plea is not' like a plea of pay ment, or satisfaction-, or of something in bar of the merits of the claim; then it would find more favor; but its object is to cause postponement and delay,—and the language of the plea is, the proceeding is unnecessary and vexatious, and should be abated.

It is obvious then, a second suit is not, of course, to be abated and dismissed as vexatious, but all the attending circumstances are to be first carefully,considered, and the true question will be, what is the aim of the plaintiff? Is it fair and just, or is it oppressive ? It is possible the defendant may not owe the debt, as the plaintiff claims he does, and may want only to present his defence, in a manner as little expensive and inconvenient as possible,—which right he ought certainly to enjoy ; but his plea now is, for delay, and delay only. If the plaintiff, by a second suit, can place his claim in a more favorable condition for obtaining redress, why should he not be permitted to do it ? as where he can secure his debt by an attachment, his first suit being a summons,—or where, as in Ward against Curtiss, the first suit is found to be premature ; so where he is apprehensive that, by reason of error or misapprehension, he is not in as good a condition as he could place himself in, by a second suit. What reason can be assigned, why he may not pursue his best remedy ?

The court will not be reluctant to grant him any necessary aid ; nor is a defaulting debtor a favorite of the court, to be shielded from a fair and speedy trial, in any competent court, where the debtor can be summoned to appear.

The only certain rule on this subject, which we find, is, where the parties are the same and the second suit is for the same matter, cause and thing, or the same object is to be attained, as in the first suit and in the same jurisdiction, the second shall abate and be dismissed; and no case beyond this, can be found, except perhaps Hart v. Granger, 1 Conn. R., 154, which extends the rule to suits pending in different and independent jurisdictions,—nor to cases pending in the same jurisdiction, in a court of law and in a court of equity. These last qualifications are, in our judgment, most material to the case on trial, and are, we think, decisive of the merits of the plea in abatement. No case has been cited by defendant’s counsel, (and his elaborate researches would have found them, if in the books,) of a bill in equity, pleaded in abatement to an action at law, or vice versa, even though the general object of both suits be, the attainment of the same object; which is allowing to this defendant, quite as much as the facts in his plea will justify; for the bill in equity is by one partner against the other, not only to settle his account but to close up the partnership, while the action at law is on a covenant to render Ms account. In Laflin v. Brown, 7 Met., 676, the court say, “ The pendency of a bill in equity has not usually been considered sufficient ground for sustaining a plea in abatement; but when both suits are commenced by the same party, it may furnish a proper occasion for a motion to require the party to elect in which action he will first proceed;” so in Blanchard v. Stone, 16 Vermont R., 234, it is said by the court, “ A plea in abatement to an action at law, on the ground of a pendency of a bill in equity for the same .matter, between the same parties, in another court, it is believed, has never been sustained in any court, foreign or domestic.” There is very much in the peculiar nature and extent of the jurisdiction of these different courts, to sustain this exception to the general rule. Besides, the rules of procedure and manner of execution in these courts, are not alike; so a court of equity acts or not, in many cases, according to its discretion; it not unfrequently leaves the party to his remedy at law ; it prescribes conditions, causes new parties to be brought before the court, and combines new matter, in any stage of the trial, by supplemental, or by cross bills, and often protracts a case, otherwise easily disposed of, for a long period of time,—equity acts likewise, without a jury, and in most countries, upon evidence taken in writing, by masters in chancery, and it has a wide discretion, which it is generally found necessary to call into exercise, in winding up a partnership connection. It is true, the demurrer in this case admits, that this action at law will be settled by the judgment in the suit in New York; but this is, as before said, an admission, to try the demurrer,—the general question remains as before.

But, if we are mistaken in this limitation of the general rule, there is another which is not less obvious and decisive, viz., the suits must be pending in the same jurisdiction. This has long been the law in England, as established in the cases of Maule and another v. Murray and another, 7 Term R., 466, and Imlay v. Ellefsen, 2 East, 457, and Ostell v. Lepage, 10 Eng. L. & Eq., 255. In the first, the court adopt this language, “ This court will not take judicial notice of an arrest in a foreign countryadding, “ it would be unjust to deprive the plaintiffs of perhaps the only security they have, for the payment of their debtand, in the second, Lord Ellenborough, Ch. J., in giving the opinion of the court, which turned on this very point, says, “ We do not see but the plaintiff has the same security, (by a suit in Norway,) for his demand, and all the benefit of prosecuting his suit there, which he has hére ; and as we do not see that such is the case, we do not feel ourselves warranted in taking from him, the benefit he is entitled to, from the laws of this country. So in Bayley v. Edwards, 3 Swanston, 710, which was a suit in Jamaica, a plea in abatement was filed, setting forth a prior suit then pending in England ; the court in England, on appeal from the colonial court, held, the plea was insufficient. Lord Camden said, “ It is impossible to maintain this plea,—it is a plea to the jurisdiction. The plaintiffs in England, attempt to set up the suit here, in bar of the jurisdiction of Jamaica; but the causes for allowing the plea of double suits, are all where the suits are in court here, while this is a second suit, in a court which is a foreign court.” The same is the law in the United States. It was so held in 11 N. H., 88. Bowne & Seymour v. Joy, 9 Johns., 221. Walsh v. Durkin, 12 Johns., 101. Mitchell v. Bunch, 2 Paige, 620. Newell v. Newton, 10 Pick., 472, and Colt v. Partridge, 7 Met., 574. If the case of Hart et al v. Granger is held to contain different views, and can not be distinguished from the above cases, by reason of its peculiar circumstances, the land lying in Ohio, or as proceeding upon the idea that these states are not foreign states, which was not decided until afterwards, in the supreme court of the United States, Buckner & Finley v. Van Lear, 2 Pet., 586, we can not approve of it. If there were nothing else in the case, but the fact, that the plaintiffs (citizens of Connecticut) were defendants in the suit in Ohio, and, of necessity, subject to a withdrawal of that suit, by the plaintiff, this was enough to justify the plaintiffs in getting the contract at once cancelled, if they could, as they found the plaintiff within our jurisdiction. It can not be supposed that they were under the necessity of going to Ohio, in order to obtain redress, when the plaintiff could, at his pleasure, leave the present plaintiffs remediless, by suffering a non-suit.- It is quite possible, if these plaintiffs had then filed a cross-bill, they could then have secured the relief which they were seeking, and to which they were entitled, upon their hypothesis ; but they were not obliged to submit to such> proceedings, and it might not have been expedient for them to trust their case to the decision, and a final one perhaps, of a county court of Ohio; for they had tried in vain to remove the case-into the United States court.

The counsel for the defendant insists, that, although these states are foreign states, except for federal purposes, the constitution of the United States has provided, that full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state, and that this provision in the constitution makes these states domestic states, or, at least, that their judicial proceedings are to be held as if they were; because they are conclusive and final; and then, he insists, that the general principle, already commented upon, shall be applied. We think it is not so, although we fully assent to the conclusiveness of the proceedings specified in the constitution ; but the want of this conclusiveness is not the reason assigned, why a prior suit, in a foreign jurisdiction, shall not abate another. It is not sosaid in Maul et al. v. Murray et al., or Imlay v. Ellesfen, or Bailey v. Edwards, nor in the cases in this country ; although some of the latter were decided after the decision in Buchner & Finley v. Van Lear. And although the earliest cáse in New York, was prior to Buchner & Finley v. Van Lear, yet we think the same view of our national compact had prevailed from the first. Judge Van Ness, it is true, in Mil ler v. Hackley, 5 Johns., 375, did hold, that a bill drawn on a person in another state, was not a foreign bill, but it does not appear, this was the point of the case, or that the question was argued or examined. Excepting this remark, we think, the decision in Buckner & Finley v. Van Lear, involved nothing essentially new. Such are the cases of Warder v. Arrel, 2 Wash., 298, Hitchcock v. Aiken, 1 Cai., 460, Bartlett v. Knight, 1 Mass , 430, and cases in note ; Duncan v. Course, 1 South Carolina Constitutional R., 100, 3 Kent, 93. The true reason is, every country or state is entirely sovereign and unrestripted in its powers, whether legislative, judicial, or executive, and hence, does not acknowledge the right of any other nation, to hinder its own sovereign acts and proceedings. Nor will the courts of one country take notice of the courts of another, nor of its laws, or rules for the administration of justice ; and therefore, the courts of a country, where a second suit is brought, will not dismiss a suitor, merely because initiatory steps have been taken elsewhere. It may bé cause for staying proceedings : but, to abate a suit is to put a final end to its existence ; should it do this, it might learn, too late, that no adequate remedy can be had elsewhere. That country is undutiful and unfaithful to its citizens, which sends them out of its jurisdiction, to seek justice elsewhere. We need not repeat, that, from necessity, it does not know what is practicable in a foreign jurisdiction,—what the mode of trial there,—the rules of evidence,—the statutes of limitation, or wHat the kind of judgment and satisfaction, and whether, if satisfaction is to be had at all, it may not be, on terms prescribed by laws favoring chiefly the interests of the debtor. This is so, even in some of these states; bow much more may it be so in other states and countries. Besides, the expense, uncertainty and delay, incident to a trial abroad, perhaps in a country very remote, is, one would think, cause enough for prosecuting a suit at íiome. The creditor, having been obliged to sue the debtor abroad, because he was found there, and could be sued nowhere else, should not be denied the right to sue his debtor at home. In truth, to do this, in such a case, is not unnecessary and vexatious ; for it is what the most upright and scrupulous man would do, without hesitation.

As we have said, the defendant’s counsel endeavors to distinguish this case, from those cited from the English reports, in this,—that the judgment in New York will be final and conclusive ; which, he says, is not the case with the foreign judgment; and this is the point he has most labored ; for, he does not deny, that the English law is against his defence, if it is to apply. Now, we remark, it is by no means clear, whether a judgment fairly obtained in the court of a foreign country, (the court having jurisdiction of the subject matter and the parties,) is not conclusive elsewhere. This is a disputed point. If then, it is conclusive, the entire force of the argument is taken away. It is undoubtedly so, in all proceedings in rem, and there is very high authority that it is so, in actions in personam. Mr. Greenleaf, in his treatise on Evidence, 1 vol. sec."546, closes his remarks on the cases, by saying, “ Though there remains no inconsiderable diversity of opinion among the learned judges of the different tribunals, yet the present inclination of the English courts seems to be, to sustain the conclusiveness of foreign judgmentand Judge Story says, in his Conflict of Laws, sec. 545,550,605. “ It is indeed very difficult to perceive what could be done, if a different doctrine were maintainable to the full extent of opening all the evidence, and merits of the cause anew.” fs the court to review the former decision, like a court of appeal, upon the old evidence; or is the court to open the judgment, and proceed as at first, ex equo et bono ? The rule, that the judgment is to be prima facie evidence for the plaintiff, would be a mere delusion, if the defendant might still question it, by opening all or any of the original merits, on his side, for it would be equivalent to granting a new trial. The very latest ease we have seen, is the Bank of Australia v. Nias, in Queen’s Bench, 4 Eng. L. & Eq., 252, where the court most evidently inclined to hold a foreign judgment to be conclusive, if the court had jurisdiction, and the trial, was fairly conducted; but they held it unnecessary to decide the point absolutely, because the judgment which had been rendered in Australia, a colony, had been appealed from, to the Queen’s privy council. Lord Denman, in Furguson v. Mahon, 39 E. C. L. R., 39, and more emphatically in Henderson v. Henderson, 6 Queen’s Bench, 288, says, “ That a plea to an action on the judgment of a colonial court, ought to steer clear of any inquiry iiffo the merits of the case ; for whatever constituted a defence, in that court, ought to have been pleaded there.”

There are, undoubtedly, many dicta, that a foreign judgment may be overhauled, on its merits, and is only grima facie evidence of the debt. It does not appear, however, says Lord Campbell, Ch. J., that the question has ever been solemnly decided, where the foreign court has regularly adjudicated the matter between the parties. It is open, no doubt, to the defendant, to show, the foreign court had not jurisdiction of the subject matter, or the person, or that the defendants had not a fair trial. Perhaps it is in view of these exceptions, it has been said that such a judgment is only grima facie evidence, and maybe impeached. We will not, however, pursue the subject any further; the numerous authorities on the subject are collected and ably commented on, by Judge Story, in his “ Conflict of Laws,” and by Smith, in his Leading Cases, 2 vol., 499. Most of them are likewise collected in Greenleaf’s Evidence, and in Cowen’s Notes to Pfiilipps. For these reasons, we advise judgment to be rendered for the plaintiff.

In this opinion, the other judges concurred.

Judgment to be rendered for the plaintiff.