author: Storrs, J.

text:
    Clark against Pendleton.
    The allegation of a promise to marry, generally, is supported, by proof of a promise to marry, on request, or in a reasonable time, but is not supported, by proof of a promise to marry, at a specified future time, or on the happening of a future event, as on a return from a certain voyage.
    Where the plaintiff’s testimony, in an action for the breach of a promise of marriage, shewed, that the defendant had paid his addresses to the plaintiff, in the ordinary manner; rode and walked out with her; seemed unhappy, unless he was in her society, and so expressed himself; had his daguerreotype taken, and exchanged it with her for hers ; referring to a voyage in prospect, be said, they had thought of being married before, but the owners wanted him to sail, and they had concluded to be married on his return ; on another occasion, he said, they had given up being married until he came back ; and that their courtship was all done; it was held, that this evidence conduced to prove a general promise to marry, on the part of the defendant, independently of any particular time or future event.

      New-London,

    July, 1850.
    Where the court charged the jury, in such action, that if they should find from the evidence, that there was a promise to marry, without any specification as to the time when it was to be performed, and it was afterwards arranged by the parties, that the ceremony of marriage should not take place until the defendant should return from his contemplated voyage; such evidence would be applicable to a count alleging a general promise of marriage, and a verdict might be rendered thereon for the plaintiff; it was held, that such charge was correct.
    Such an arrangement merely, would not constitute a new contract between the parties, which would discharge the former one, but would recognize its continued existence.

      A apromise to marry, in consideration of a similar promise by the other party, ; is not within the statute of fra
    Nor is a promise to marry, after the defendant’s return from a contemplated voyage, on which it was expected he would be absent eighteen months or more, within that statute, as an “ agreement not to be performed within one year from the making thereof.”
    Where there are several counts in the declaration, and a general verdict is given, the court will not set it aside, because evidence which would support one count, was received as applicable to another, to which it was inapplicable.
    Where the jury, in action for a breach of promise to marry, gave to the plaintiff, 1,500 dollars, damages; it was held, that although they were higher than the court would have awarded ; yet as they did not appear to be flagrantly excessive, or disproportioned to the injury received by the plaintiff, the court would not disturb the verdict, on that ground ; the assessment of damages, in such a case, being peculiarly within the province of the jury.
    This was an action for a breach of promise to marry the plaintiff. The declaration contained four counts.
    In the first, the plaintiff declared, that on the 1st day of June, 1846, in consideration that she, the plaintiff, being then sole and unmarried, had, at the request of the defendant, undertaken and to him faithfully promised to marry him, in a reasonable time thereafter, when she should be thereunto requested, he, the defendant, undertook and to her, the plaintiff, faithfully promised to marry her, when he should be thereunto requested. A breach of such promise, on his part, though she had remained single and unmarried and had been ready to perform on her part, and had requested him to perform on his part, was then alleged.
    In the second count, the plaintiff, after stating mutual promises to marry, alleged, that the defendant, being about to embark upon a whaling voyage, and to be absent from the united States, for about the term of eighteen months, as was then expected, in consideration that the plaintiff had, at his request, promised to marry him, when thereto requested, after his return from said voyage, he, on the 1st day of June, 1846, undertook and to her faithfully promised to marry her, when thereto requested, after his return from said voyage that he returned from said voyage, on the 30th day of March, 1848 ; alleging a subsequent request by her, and a breach on his part, as in the first count.
    The third count was like the second, except that the defendant’s promise to marry the plaintiff was alleged to be “ within a reasonable time after his said return, when thereto requested.”
    The fourth count was like the first, except that the clause “ in a reasonable time thereafter,” next after the defendant’s promise to marry, was omitted.
    The defendant pleaded the general issue; on which the cause was tried, at New-London, September term, 1849.
    On the trial, the following testimony was introduced, on the part of the plaintiff.

      Maria B. Langworthy, sister of the plaintiff, testified as to the visits made to the plaintiff, by the defendant, at the house of her husband, Henry B. Langworthy, in the spring of 1846. He, the defendant, paid his addresses to the plaintiff, in the ordinary manner; rode and walked out with her; seemed unhappy, unless he was in her society, and so expressed himself. He often spoke of his happiness ; and said, life had been more valuable to him, for a few weeks past, than all his life before. The defendant was going a voyage to sea, on a whaling voyage ; and about a fortnight before he sailed, being at the house of Mr. Langworthy, he spoke of having their daguerreotypes taken ; and asked my husband, whether they had better go to Norwich or New-London, for the purpose of having them taken. My husband thought it best to go to New-York. My husband asked him, if it was not a new idea ? He said, Yes, they had thought of being married before; but the owners wanted him to sail; and they had concluded to be married on his return : that he wished her [the plaintiff] to be all ready, when he should return ; that their courting was all done ; and that he should have nothing to do, but get a suit of clothes made, and they could be married in one or two weeks. It was expected, that he would be absent on his voyage, from
    months to two years. The daguerreotypes of the parties were taken in New-York; and the defendant took that of the plaintiff, and gave her his.
    The defendant went to sea, the 10th of June, 1846, and returned home, March 29th, 1848. He remained with the plaintiff until guns were fired from the ship, for him to come off to her, on the day she sailed from Stonington : he said, that when he returned, he should go and see his mother, and then should come and see her, and might come in his sailor’s rig.
    When he returned home, he did not come to see the plaintiff, on that day ; and the plaintiff requested Mr. Lang-worthy to call and see him, and ask why he did not call on her. The next day, he came, and had an interview with the plaintiff, in private ; and after the interview, they conversed in the hearing of the witness and her husband. The plaintiff seemed grieved, and said, he has broken my heart-he has broken my heart. The defendant said, he should not marry the plaintiff; and asked her to release him from his engagement, which she declined to do. They conversed as to the causes which had induced him to break off the engagement; and the causes spoken of by him were, that she had written some letters, which the defendant claimed were improper, and had spoken too freely of their engagement, &c. To this, she answered, that he was present when the letter was written ; which he did not deny. He also charged her with having written a letter to her aunt Lang-worthy, relative to charges made by Mrs. Langworthy against defendant’s parents. The witness had heard defendant’s mother request the plaintiff to write said letter to Mrs. Langworthy.

      Henry B. Langworthy, husband of the first witness, had been long acquainted with the defendant. The defendant had been acquainted with the plaintiff, three or four years ; they had been in company together, previous to the defendant’s last voyage. He testified substantially to the same facts, as to the acquaintance of the parties, in the spring of 1846, as had been stated by his wife. In regard to the circumstances attending the taking of the daguerreotypes, he testified, that the defendant said, that he had made different arrangements as to the time of going to sea ; and that he expected to go the first of the next week ; that Frances and he had given up getting married, till he came back ; and that their courting was all done ; that he should have nothing to do, when he came back, before he got married, but get his clothes. The daguerreotypes of the parties were taken in New-York; the witness and his wife accompanying them there, for the purpose of having them taken. Defendant taught my little son, aged about four, to call him uncle. On the evening of the day that the defendant returned from sea, March 29th or 30th, 1848, the witness called on the defendant, at the request of the plaintiff, and asked him why he had not been to see her; if he was not coming ? The defendant replied, that he was sick, but should call, and would call on her, the next day. The next day, he did call. The meeting between them seemed rather a cold one for lovers. After they had had a private interview, the witness heard a conversation between them, in the presence of his wife. [He here related it, substantially, as stated by his wife.] The defendant said, at this time, he should not marry the plaintiff, as long as one of his family opposed it. After this interview, at the request of the plaintiff, the witness accompanied her to the house of Mrs. Pendleton, the mother of the defendant, with whom and a sister of the defendant, the defendant lived. The plaintiff wished to know, what they had against her. Mrs. Pendleton said, that if Thos. Clark was too good for her grand-daughter, Frances T. Clark was too good for her son; and he should n’t marry her. Miss Clark then asked, is that all ? Mrs. Pendleton said, no; she had written that, vile, infernal letter. The defendant said, Yes ; the vilest letter a female ever put pen to write. Miss Clark said, you, addressing Mrs. Pendleton, requested me to write it. No, no, my child, said Mrs. Pendleton, I never requested you to write it. A few words more were said, and the parties separated. The defendant asked her for his letters to her, and her daguerreotype likeness ; but she did not give them up. The witness said, that the health of the plaintiff, he thought, suffered at first, from her disappointment; and that she was very much affected by it.

      James Lee testified to receiving a letter from the plaintiff, delivered to him on the coast of Chili, in November or December, 1846, by the defendant; that he then had a conversation with the defendant, in which he spoke of being engaged to the plaintiff. He said, he had letters for me. He said, “You must allow me to read one of the letters, as I was seated by the lady when she wrote it.” He told me of his engagement to the plaintiff; spoke of the frequency of his visits to her; showed me her daguerreotype.

      James H. Clark testified, that in 1846, the defendant visited Mr. Peleg Clark Jr., and that Frances was there. They showed each other’s miniatures. Defendant said, they were engaged; wanted her to be ready, as he should wish to be married as soon as he returned ; not more than a week or so after that. Witness called at Mrs. Pendleton's with his sister, Mrs. Langworthy. The ladies asked Mr. Langworthy and myself to retire. After about half an hour, witness went in and enquired what was the privacy ? Mrs. Pendleton said, only a letter Frances wrote, at her request. She said, it was very good for the occasion, only she wanted the law left out, and some sentences altered. Witness saw the letter in Mrs. Pendleton’s hand.

      John E. Weeden, a physician, deposed, that he had attend-the plaintiff, professionally ; that the health of the plaintiff had been affected; that it was caused, in his opinion, by mental depression, arising from disappointment.
    The defendant called William Hyde, who testified, that he had visited the plaintiff, as a physician, she having a nervous disease, arising from a punctured wound in the hand. He had also attended the plaintiff, at another time, when she was suffering from a spinal affection ; and he noticed no evidence of mental depression. The injury was some years ago. Witness had not seen plaintiff since 1847.

      Betsey Pendleton, mother of defendant, deposed to a conversation which she had with the plaintiff, as to some slanderous reports made by a Mrs. Langworthy, an aunt of the plaintiff; which reports were, that Mrs. Pendleton had had a foul disease, which was communicated to her, by her husband, since deceased. Also, that Miss Clark brought her a letter, addressed to Mrs. Langworthy, requiring her to contradict the slander, and asking the witness to sign it and send it, which she refused. Witness stated, that she had never asked Miss Clark to write any such letter.
    Mrs. Denison Palmer, sister of defendant, was present when Frances told Mrs. P. that her aunt Langworthy had said, that she hoped Capt. P. would not give her the bad disorder, as his father did to his mother. That Mrs. Pendleton told Frances, she might tell her aunt, to go and see her physicians before she reported such a story. After that, she brought a letter, and asked mother, if she would sign it; which she declined, and said she should consult her sons, before signing such a letter. That she afterwards asked Mrs. P., her mother, if her sons were going to have any thing to do with the story. Mrs. P. said her sons would have noth- ing to do with it, with her consent; that Miss Clark said, that if Mrs. Pendleton and her sons at home refused to have this slander investigated, when the defendant came home, the story should be investigated, before she would marry the defendant; such a story should not be flung in her teeth after marriage. Mrs.

      Eliza Pollard, a grand-daughter of Mrs. Pendleton, testified to the same facts substantially, as were sworn to by Mrs. Palmer. She was present, when plaintiff told Mrs. P. of this report of Mrs. L. She, Mrs. Pendleton, said to plaintiff, “ I wish you would say to aunt Lois Langworthy, I wish she would consult my physicians.” The
    plaintiff also read in evidence a letter of the defendant to her, of which the following is a copy : “

      Western Islands, June 29th, 1840. New

    Frances, A
    A few lines in haste, which will inform you of my arri- val here, after a passage of nineteen days, and am enjoying good health ; hoping these will find you the same. You are, dear Frances, constantly in my mind, when awake; and when asleep, I dream of thee. A few days has rolled away since we parted ; and perhaps months will revolve before we meet again, if permitted to meet again. Lovely girl, think while I am tossed to and fro, on this wide ocean, I still love thee ; although far out of sight, yet not out of mind. Well do I recollect the happy hours we together have passed. They were happy hours to me: but when the parting hand was ex-extended, oh, what feelings then; tongue cannot express them; it was like taking my life, for you are as dear to me as my own life ; and may we have the pleasure of meeting again this side of the grave ; but if not permitted to meet on earth again, may we have the happiness of meeting in heaven above, where parting will be no more. I have been as firm in my mind respecting our engagement, while absent from you, as it was while in your presence ; and trust I ever shall be, believing you will remain the same. I expect you are now enjoying yourself with your friends in New-Port; at least, I hope you are enjoying yourself, whether there or elsewhere ; while I try to enjoy myself, as well as I can, on board of ship; for the pleasures and enjoyments at sea, are very different to what they are at home, especially when in your sweet presence ; but still there are pleasant hours at sea, and many unpleasant ones ; it is expected so to be. Oh that I could see your lovely face, if it were but a moment, and kiss those lips, which I have so often kissed.
    Please excuse a few lines in haste ; and think I remain your lover, and well wisher,

      Otis Pendleton.

    Give my love to your mother, and all of the family.

      Otis.”

    The defendant claimed, that there was no evidence to support the first and fourth counts, and prayed the court to instruct the jury, that if they should so find, and that the evidence supported the second and third counts only, the verdict must be for the defendant, because a promise not to be performed within one year, as stated in these counts, was void by the statute of frauds.
    The court charged the jury, that if from the evidence it appeared, that a promise to marry generally had been made ; and that afterwards, it was agreed, by the parties, that the ceremony should not be performed till the contemplated voyage had been made, and the defendant had returned, such testimony would be applicable to either the first or the fourth count, and a verdict might be rendered on those counts for the plaintiff. If there was no evidence but what applied either to the second or third count, the verdict must be for the defendant; and thereupon the court submitted to the jury, to find whether the evidence proved, that there were mutual promises of marriage between the parties, without any specification as to the time when the contract was to be performed, which was afterwards postponed till the defendant had returned from his contemplated voyage.
    The jury rendered a verdict for the plaintiff, for 1500 dollars damages.
    The defendant thereupon moved for a new trial, for a misdirection ; because the verdict was palpably against the evidence in the cause, as applicable to the first and fourth counts ; and because the damages were unreasonable and excessive.

      Foster (with whom was Dixon,) in support of the motion,
    contended, 1. that there was no evidence to support the first and fourth counts, on which alone, under the charge, the verdict could be, and was, rendered. The first count is on a promise to marry in a reasonable time thereafter, i. e. after the making of the promise, on the 1st day of June 1846, on request. The fourth count is on a promise to marry, generally. Now, there was not a particle of evidence to show, that the defendant made such a promise as is alleged in these counts. There were four witnesses, and four only, to prove a promise to marry. These were Mrs. Langworthy, Mr. Langworthy, James Lee, and James H. Clark. These all testify to a promise to be performed after the happening of a future event. [ Here the testimony referred to was minutely examined.]
    2. That the instruction given to the jury, was erroneous. They were told, that if they should find from the evidence, that a promise to marry generally had been made, and that afterwards, it was agreed by the parties, that the ceremony should not be performed till the contemplated voyage had been made, and the defendant had returned, such testimony would be applicable to the first or fourth count; and a verdict might, under such circumstances, be rendered for the plaintiff, on either of these counts. In the first place, there was a material and fatal variance between the allegata and the probata. The declaration, (i. e. the first and fourth counts, which, on this point, constitute the declaration,) in substance, is, on a promise to many in a reasonable time, on request. The evidence to support the declaration, is a promise to marry soon after the defendant’s return from a voyage to sea, which would last from eighteen months to two years. That this variance is fatal, the authorities all show. The following will suffice. 1 Greenl. Ev. § 66. Bristow v. Wright, Doug. 665. S. C. 1 Smith’s Leal. Ca. 324. & n. 454, 5. 1 Sound. Pl. & Ev. 119. Willoughby v. Raymond, 4 Conn. R. 130. Kellogg v. Denslow, 14 Conn. R. 411. Hall v. Campbell, 6 Greenl. R. 109. Borde-nave v. Bartlett, 5 East, 112. n. c. Atchinson v. Baker, Peake’s Add. Ca. 103. Secondly, if there had been a promise to marry generally, and it was subsequently agreed to marry after the voyage was made, in eighteen months or two years, the latter promise and agreement discharged the former. 2 Stark. Ev. (3d. ed.) Gilb. Ev. 193. This was not a contract varied in the process of performance, but a substituted agreement.
    3. That there was no evidence that the defendant broke off the engagement from any improper motives. He had, and manifested, the ardent feelings of a suitor, until he went to sea, and afterwards ; but the plaintiff became involved, improperly, in a scandalous matter concerning the defendant’s parents. She took a part in the slander; and he required her to put down the charge which she had been instrumental in propagating.
    4. That the promise, not being to be performed within a year, and not being in writing, was within the statute of frauds, and of course, not binding upon the defendant. [This point was not much pressed.]
    5. That the damages were unreasonable and excessive.

      Strong and Pomeroy, contra,
    contended, 1. That this being a general verdict, if it can be sustained under either count of the declaration, it will not be set aside. Wolcott v. Coleman, 2 Conn. R 324.
    2. That the charge of the court to the jury was correct.
    The defendant’s letter shews that there had been a general engagement to marry; and that there was only a postponement of its consummation. This was not a rescinding of the engagement, but a recognition and confirmation of it.
    3. That the promise alleged in the second and third counts, is not within the statute of frauds. This statute applies only to contracts, which, by the terms of them, are not to be performed within the year. If it depends upon a contingency which may or may not happen within the year, the statute does not apply. The time for the execution of this contract was to depend upon the defendant’s return from his contemplated voyage, which, though expected to continue eighteen months, was still altogether contingent. The termination of a whaling voyage depends upon its success, and various other causes, which may render a speedier return necessary. Russell v. Slade, 12 Conn. R. 455. Fenton v. Emblers, 3 Burr. 1278. Anon. 1 Salk. 280. Smith v. Westall, 1 Ld. Raym. 316. Peter v. Compton, Skin. 353. Moore v. Fox, 10 Johns. R. 244. McLees v. Hall, 10 Wend. R. 426. Roberts v. Rockbottom Co., 7 Metc. 46. Kent v. Kent, 18 Pick. R. 569.
    4. That there was no ground for a new trial, on account of the amount of damages. The question of damages, in an action of this sort, properly belongs to the jury. There was no evidence of passion, predjudice or partiality.
   Storrs, J.

The first and fourth counts of the declaration in this case, allege a promise, by the defendant, to marry the plaintiff, on request; the second and third, to marry her, on request, after his return from a certain contemplated voyage. The defendant claims, that none of the evidence of the plaintiff supported the two former counts, on which alone, under the charge, a verdict for the plaintiff could be rendered.

The law construes a promise of marriage generally, that is, without specifying any particular time for its celebration, to be a promise to marry, on request. Proof of such a promise would, therefore, support the two former counts. But proof of a promise to marry at a specified future time, or on the happening of a future event, as, for instance, on a return from a certain voyage, would not support them. 1 Greenl. Ev. § 66. Atchinson v. Baker, Peake's Add. Ca. 103. Cole v. Cottingham, 8 Car. & Pa. 75. (34 E. C. L. 297.)

A majority of the court are of opinion, that the evidence of the plaintiff conduced to prove a general promise to marry, on the part of the defendant. The contract between the parties was not in writing, nor was there any direct evidence of an express promise by him ; but the proof of that contract consisted of the conduct of the parties and the admissions of the defendant. Without adverting to the other evidence, we think that, by a fair construction of the testimony of the two first witnesses, the sister of the plaintiff and her husband, it tended to prove, that the contract of marriage between the parties, was a general engagement, without reference to any particular time or future event, when it was to be carried into effect, which would amount only to a promise to marry, on request; and that the arrangement between the parties respecting the celebration of it, after the defendant should return from his contemplated voyage, was subsequent to their entering into the contract, and only a decision by them as to the time when the performance of such contract should take place. The fair inference from the declarations of the defendant, as stated by these witnesses, is, that after their engagement, the time when the marriage should take place, became a subject of consultation between them, in which they came to a partial, though not definitive determination, that it should be celebrated before he should leave on his next voyage ; but that, in consequence of his being required to sail sooner than he had expected, they concluded to postpone it until his return. The first of these witnesses testified, that the defendant, to a question whether the postponement of the marriage supposed to be indicated by an exchange of Daguerreotypes, was not a new idea, replied, “ yes; we thought of being married before, but the owners want me to sail, and we have concluded to be married on my return.” The second witness testified, that, in regard to the circumstances attending the taking of the Daguerreotypes, the defendant said, ‘‘ I have made different arrangements as to the time of going to sea, and I expect to go the first of next week ; Frances (the plaintiff) and I have given up getting married till I come back.” These expressions of the defendant are clearly not such as he would have used, if he had been speaking of a contract of marriage in which the particular time of its celebration was agreed on, when such contract was made, and of which, therefore, an agreement as to such time formed a part. His language indicates, not that the original contract was given up, or to be departed from, but only that, as a matter of convenience, the time of its performance had been postponed, by a subsequent arrangement. See Phillips v. Crutchly, 3 Car. & Pa. 178. (14 E. C. L. 260.) Potter v. Deboos, I Stark. Ca. 82.

The next question respects the correctness of the charge, which was, that if there was a promise to marry, without any specification as to the time when it was to be performed, and it was afterwards arranged by the parties, that the ceremony of marriage should not take place until the defendant should return from his contemplated voyage, such evidence would be applicable to the first and fourth counts, and a verdict might be rendered on those counts, for the plaintiff. The defendant claims, that such a subsequent arrangement would constitute a new and different contract between the parties, which would discharge the former one. It would, undoubtedly, be competent for the parties, after the making of the first general contract, to make another one, by which they should agree to marry each other, on or after a particular future event, such as the return of the defendant from his expected voyage, in which case, the last agreement, being wholly different in its terms from, and indeed inconsistent with, the first, would supersede and annul it. The time for the performance of these agreements would, by their terms, be different; a performance of both must, from their nature, take place at different times ; and the obligations of the parties under them might be contradictory.

But a mere arrangement by the parties fixing the time when an existing contract, to marry, on request, should be carried into effect, would not constitute the formation of a new contract, but would be entirely consistent with the subsisting agreement, have respect to and recognize its continued existence, and be a provision only as to its performance. A request or proposition, by the plaintiff, to the defendant, to celebrate the marriage, at a specified time, and an assent thereto, by the latter, would no more have the effect of destroying the original agreement, by the substitution of another, than, in the case of an agreement by one, to pay another a certain sum of money, or do any other act, on request, or in a reasonable time, a subsequent understanding between them, that the act should be done at a particular time, would constitute an abandonment of the contract and the formation of another. The same principle applies to each of these cases. Such arrangement would be an act of the parties, which would furnish evidence of what would be a reasonable time for, and probably also of a request of, performance ; but to prove the making of a new contract, more explicit proof would be required, that such was the intention of the parties. On this point, therefore, the charge was correct.

But we think that part of it was erroneous, in which the jury were instructed, that the contract, as stated in the second and third counts, was within the statute of frauds ; and therefore, must be in writing. It is now well settled, that it was not an agreement made upon consideration of marriage within that statute. Cocke v. Baker, Bul. N. P. 280. S. C. 1 Stra, 34. Nor, in our opinion, is the agreement, as alleged in those counts, one which, by the true construction of that statute, was not to be performed within one year from the making thereof. It is not alleged, in any form, that it was made with reference to, or that its performance was to depend on the termination of a voyage which would necessarily occupy that time. It is only alleged, that it was expected by the parties, that the defendant would be absent for the period of eighteen months. But this expectation, which was only an opinion or belief of the parties, and the mental result of their private thoughts, constituted no part of the agreement itself; nor was it connected with it, so as to explain or give a construction to it, although it naturally would, and probably did, form one of the motives which induced them to make the agreement. The thing thus anticipated did not enter into the contract, as one of its terms; and according to it, as stated, the defendant, whenever he should have returned, after having embarked on the voyage, whether before or after the time during which it was thus expected to continue, would be under an obligation to perform his contract with the plaintiff. As it does not therefore appear, by its terms, as stated, that it was not to be performed within a year from the time when it was made, it is not within the statute. Anon. 1 Salk. 280. 1 Ld. Raym. 316. Holt, 326. Peter v. Compton, Skin. 353. Fenton v. Emblers, 3 Burr, 1278. Moore v. Fox, 10 Johns. R. 244. Peters v West-borough, 19 Pick. 364. Wells v. Horton, 4 Bing. 40. (13 E. C. L. 332.) Linscott v. McIntire, 3 Shep.201.

It is unnecessary for us to determine what would be the effect of proof that the event, upon which the performance of a verbal contract depended, could not by possibility take place within a year from the making thereof, when it did not appear from the contract itself that it was not to be performed within that time ; because there was no claim, in the present case, which raised that point.

If however the evidence of the plaintiff were not admissible, under the first and fourth counts, still, as it would, in that case, confessedly support the second and third; and the verdict here is a general one for the plaintiff; justice would not require a new trial, and we should not set aside the verdict.

Respecting the damages given in this case, although they are higher than we should have awarded, they do not appear to us to be so flagrantly excessive or disproportioned to the injury received by the plaintiff, that we ought to disturb the verdict, on that ground. In such a case as this, the law furnishes no precise or definite rule of damages, and their assessment is peculiarly within the province of the jury ; and although it would be competent for us to grant a new trial, if the damages were palpably and grossly excessive, it is a power which has been very rarely exercised, and should be reserved for cases, where very clear, definite and satisfactory reasons can be given for such interference. This, in our opinion, is not such a case.

A new trial, therefore, is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.

       Allusion is here made to the opinion of the Chief Justice, who at first dissented, but, as the reporter understands, ultimately concurred, or at least acquiesced, in the decision.


source: Caselaw Access Project

license: Public Domain

text:
    Quinebaug Bank against Tarbox:

      New-London,

    July, 1850.
    in ERROR.
    Though the general principle is well settled, that the pendency of a prior suit between the same parties, for the same thing, will abate a suit subsequently brought, this principle does not prevail, in our courts, where it appears, thas the first suit would be ineffectual.
    Therefore, where a writ of error was brought to reverse a judgment, in which the errors assigned appeared in a bill of exceptions; and it was afterwards discovered, that the court below had omitted to allow and sign the bill of exceptions, as stated in such writ of error, but having materially altered it, had then allowed and signed it; and thereupon a second writ of error was brought, the first being abandoned, including a transcript of such altered bill of exceptions, to reverse the same judgment; it was held, that these facts did not constitute a sufficient ground of abatement.
    Where a court for the trial of a complaint of forcible entry and detainer, consisted of a county commissioner and a justice of the peace, residing in that county, but in a different town from that in which the land which was the subject of the complaint, was situated, and from that in which either of the parties resided; it was held, that such court was legally constituted, and had jurisdiction of the proceeding.
    It being indispensable to the pure administration of justice, in trials by jury, that the jurors should be selected with the utmost fairness and integrity, it is a good cause of challenge to them, that the officer returning them, was interested, or guilty of any partiality or misconduct in their selection ; and the objection on this ground goes not only to the particular jurors so returned, but to the whole panel, and is a cause of challenge to the array.
    But where an officer, whose duty it was to summon a jury to try a complaint of forcible entry and detainer against the Quinebaug Bank, for the purpose of ascertaining who were legally qualified to act as jurors in that cause, asked the counsel for the defendants to inform him, who were stockholders in that institution ; and the counsel, thereupon, after expressly disclaiming any wish to influence him in the discharge of his duty, named to him several persons who were not such stockholders, adding an expression of his opinion, that they were independent and judicious men ; some of whom so named, the officer, without being biased, by any representation made by the counsel, summoned as jurors ; it was held, that there was no ground for the imputation of any blame to either the counsel or the officer, and consequently, a challenge of the jurors, founded on these facts, was disallowed.
    A complaint under the statute of forcible entry and detainer, is regarded as a civil remedy; and on the trial of such a complaint, each party has the right of challenging, peremptorily, two jurors.
    The original suit was a complaint of forcible entry and de-tainer, made by George W. Tarbox, against The Quinebaug Bank, returnable to Belton A. Copp, a county commissioner, and Philo M. Judson, a justice of the peace, alleging, that on the 11th day of August, 1849, the defendants made forcible entry into a certain manufacturing establishment, called the Eagleville manufactory, and the mill at Eagleville, situated in the town of Lisbon, of which the complainant was then in the lawful and peaceable possession, and disseised the complainant, and with a strong hand detains the same, and forcibly holds the complainant out of the possession thereof.
    The defendants appeared, and pleaded to the jurisdiction of the court, on the ground that Judson, one of its members, was not a resident of the town of Lisbon, in which the property in question was situated, but of Norwich; and that there were sundry justices of the county, [naming them,] who resided in Lisbon. This plea being demurred to, the court adjudged it insufficient, and ordered the defendants to answer over.

    The defendants then pleaded the general issue, on which the cause was tried before the court, and a jury summoned for that purpose. At the commencement of the trial, the defendants challenged the panel of jurors, as having been illegally summoned. To sustain such challenge, he called the officer who summoned them, who, being sworn, testified, that he called upon L. F. S, Foster, Esq., the attorney of the plaintiff, as he wished to ascertain who were stockholders in the Quinebaug Bank; that Mr. Foster, after having disclaimed to the witness any wish to bias him in the discharge of his duty in summoning the jurors, named to him several individuals, who were not stockholders in the Quinebaug Bank, and whom he believed to be judicious, independent men; some of whom the witness summoned, and some he did not; that he was not biased in summoning any juror, by any representation Mr. Foster made, nor could he name the jurors in the panel named to him by Mr. Foster. There being no other proof in relation to this matter, the defendants claimed, that the whole panel was illegally summoned. But the court overruled the objection, and ordered the trial to proceed.
    The defendants thereupon claimed the right to challenge peremptorily two jurors, under the law of the state, and did so challenge one of the jurors, without stating any special cause for such challenge. But the court overruled the challenge, and the juror so challenged was sworn, and was one of the jury before whom the cause was tried. The jury returned a verdict for the plaintiff; and the court rendered final judgment thereon.
    The defendants then brought a writ of error in the superior court, assigning sundry errors.
    The defendant in error pleaded in abatement the pendency of another writ of error, previously issued and served, to reverse the same judgment, returnable to the same court, at the same term.
    The plaintiffs in error replied, that after the bringing of the other writ of error mentioned by the defendant in error, they discovered that commissioner Copp, and justice Judson, had not allowed the bill of exceptions set forth in said writ, but had materially altered it; and that said writ was not in such form as that the questions at issue between the parties could be fairly raised and decided therein ; and thereupon the plaintiffs in error, to avoid delay, and to procure a fair and speedy trial of the questions at issue between the parties, arising on said judgment, no further pursued said writ, but discontinued it, and afterwards procured their present writ to be issued, conforming therein to the records of said court, as altered and perfected ; written notice to the defendant having been served upon him, that the writ first issued would be no further prosecuted.
    The rejoinder of the defendant averred the pendency of the first writ of error; that it was for the same matter, cause and thing ; and that it was brought to reverse the same judgment. To this the plaintiffs demurred.
    The questions of law arising upon the record, were reserved for the advice of this court.

      Strong and E. Perkins, for the plaintiffs in error,
    contended, 1. That the pleadings in this case, show no ground for the abatement of the writ of error. In the first place, where it appears that the first writ would have been wholly ineffectual, and was not pursued, but withdrawn, it will not abate the second. 1 Sw. Dig. 611. Gould’s Pl. 285. Du-rand v. Carrington, 1 Root, 355. Id, 562. Ward v. Cur-tiss, 18 Conn. R. 290. Secondly, the matters alleged in the replication, are a sufficient defence to the plea in abatement; and not being answered, by the rejoinder, are admitted to be true. 1 Sw. Dig. 616.
    2. That the court of forcible entry and detainer, on the facts stated in the plea to the jurisdiction of that court, had no jurisdiction of the cause. In the first place, a justice is made a part of the court, by virtue of his office. He is to try a civil cause. He must therefore be a justice of the county, having jurisdiction of such cause. Secondly, to give a justice jurisdiction of a civil cause, it is necessary that he should reside in the town to which one or both of the parties belong, or in which the land in controversy lies. Stat. 66, The only exception to this rule is, where there is no justice in that town qualified to try the cause. Humphreville v. Perkins, 5 Day, 117. Any other construction of the statute, gives to the plaintiff an unjust advantage in his selection of the court; allowing him the range of the whole county for the purpose. Thirdly, so long as there are justices residing in the town of Lisbon, qualified to act, no justice from any other town could be required to constitute a part of the court; as no justice can be compelled to leave his own town to try causes. Lyme v. East-Haddam, 14 Conn. R. 399.
    3. That the court erred in not allowing the challenge to the array. Part of the jury who tried the cause, were nominated by the counsel for the plaintiff; and this part could not be distinguished from the others. 2 U. S. Dig. 689. Co. Lilt. 155. a. 3 Bla. Com. 359.
    4. That the court erred in denying to the defendants the right of peremptory challenge as to two jurors. By express statute, each party has the right, on the trial of every civil action, to challenge two jurors peremptorily. And this right appertains to the parties to this action, as well as to parties in the superior and county courts. Sess. Stat. 1848. Stat. 79. In the revision of 1849, this right of challenge is secured, by the same statute which alone authorises the plaintiff to bring this action of forcible entry and detainer, and to try it before a jury. Stat. 79. 113. 114. 110. 224. 225.
    5. That the court erred in their instruction to the jury.

      Foster and Wait, for the defendant in error,
    contended, 1. That the court by which the cause was tried, was legally constituted. Judson was a justice of the peace of the county in which the manufactory and mill in controversy are situated. Stat. 113. § 224. A residence in the town of Lisbon, was not necessary to qualify him to act as a member of such a court. Betts v. Dimon, 3 Conn. R, 107. Justices can try civil actions in any town in the county in which they reside, except where they are otherwise expressly limited by statute; as they are, in some cases, but not in this. Stat. 66. Justices are county, and not town officers.

      2. That the defendant could not challenge the whole array, unless he could show fraud or partiality in the selection of the entire panel. Here, it is proved, that the officer was not biased, in summoning any juror. And if the fact that a part of the panel had been named, by the plaintiff’s counsel, to the officer, is the ground of challenge, the defendant could only have challenged such as were so named. But further, the counsel for the plaintiff had a right to designate the entire panel; and unless there was a fraudulent combination shown to select improper persons, it would not be a ground of setting aside the panel. Miles v. Pulver, 3 Denio, 84.
    3. That the statute giving a party the right to challenge two jurors peremptorily, without alleging or showing any cause therefor, exists only in suits pending before the superior and county courts. Stat. 79. If two of the jurors were stricken off, in this manner, could the remaining ten try the cause ? Or could the sheriff supply their places, with tales-men ? There is no provision in the statute for either of these contingencies. This tribunal is one of a special and peculiar character, and is governed only by the letter and spirit of the statute by which it is created.
    4. That the charge of the court was correct.
    5. That the second writ, of error ought to abate and be dismissed, because of the existence and pendency of the first, for the same matter, cause and thing. Beach v. Norton, 8 Conn. R. 71. Buffam v. Tilton, 17 Pick. 510. The first writ was not withdrawn, in the manner prescribed by the statute. Stat. 63. § 53. 54. There was no necessity for bringing the second writ, because the first might have been amended. The cases cited e contra are, therefore, inapplicable here.
   Storrs, J.

There is a plea in abatement to this writ of error, founded on the pendency, when it was instituted, of another writ of error, brought to reverse the judgment sought to be reversed in the present case.

The general principle is well settled, that the pendency of a prior suit between the same parties, for the same thing, will abate a latter suit; because, in such a case, the last is deemed to be unnecessary, and therefore vexatious. But this principle, although general, is not universal. It does not prevail, at least in our courts, where it is made to appear that the last is not vexatious, but brought for good cause ; because the reason of the general rule there fails. Hence, it has often been decided in this state, that, where it appears that the first action would be ineffectual, its pendency shall not abate the second ; because the latter is not in such case deemed vexatious. Gould's Pl. 285. 1 Sw. Dig. 611. Durand v. Car-rington, 1 Root, 355. Ward v. Curtiss, 18 Conn. R. 290. We think that the facts disclosed by the pleadings in this case, bring it within this exception to the general rule. It appears, that after the suing out of the first writ of error, the plaintiff in error discovered, that the court, to reverse the judgment of which it was brought, had not allowed, but materially altered, the bill of exceptions therein set forth; and that, in consequence thereof, the questions of law arising upon that judgment, could not be presented, in such a manner, that they could be fairly raised and determined on that writ; and that the plaintiffs in error thereupon, with intent to avoid delay, and procure a fair and speedy trial of those questions, abandoned and ceased to prosecute that writ of error, and brought the present one. It is obvious, that the first would have been wholly ineffectual ; and nothing appears, which shows any fault in the plaintiffs in error. This writ of error, therefore, is not to be deemed vexatious, and should not be abated.

We proceed to consider the questions arising on it.

2. The first error assigned, is, that, the court to which the complaint in this case was preferred, and by which it was tried, was not legally constituted. It consisted of one of the commissioners of the county, in which the land, which was the subject of the complaint, is situated, and a justice of the peace residing in that county, but in a town other than that in which the land lies, or in which either of the parties resided. The statute of forcible entry and detainer, (Stat. 113, Civil Actions, § 224.) provides, that the complaint under it may be exhibited “to a county commissioner and justice of the peace in the county where the lands, &c. lie,” without any restriction as to the town in which the latter shall reside ; and there is nothing in this statute from which any such restriction can be inferred. It requires, that the complaint shall be tried in the town where the injury complained of was done ; but it does not result from thence, that the justice must reside in that town; and neither of the parties may reside in that town ; which shows, that the statute did not intend to require, that he should reside in the town where one of the parties reside. In the absence of any restriction in this respect, we are not at liberty to impose one. The defendant in error claims, that the general statute respecting venue and jurisdiction, (Civ. Act. § 64. p. 66.) applies to this complaint, and requires that the justice should reside in the town where the land lies. We do not perceive how that statute would require this, if it were applicable here ; but it does not, and was not intended to, apply to cases arising on the statute of forcible entry and detainer, under which the present complaint was brought, and by which the proceedings under it are regulated, but only to cases within the jurisdiction of single justices of the peace. The plea to the jurisdiction was, therefore, properly overruled.

3. The second error assigned, is, that the court below overruled the challenge of the defendant to the jurors, founded on the misconduct of the officer in summoning them. It being indispensable to the pure administration of justice, in trials by jury, that the jurors should be selected with the utmost fairness and integrity, courts have always deemed it a good cause of challenge to them, that the officer returning them was interested, or guilty of any partiality or misconduct, in their selection ; and so careful and jealous are they on this subject, that the objection on this ground goes, not only to the particular jurors returned under the influence of such improper motives or conduct, but extends to the whole panel_ and is a cause of challenge to the array. The rejection of the jurors is not founded on any personal objection to them, but on the misconduct of the officer, which is presumed to have influenced the selection of the whole panel. And the selection, by the officer, of any of the jurors, in consequence of the nomination, appointment, or request of a party, or counsel, is held to constitute such misconduct; because it is the duty of the officer in making a selection, to act on his own unbiassed, independent judgment. These principles are fully settled, by the authorities, and apply to cases like the present, in which the jurors are selected by the officer, as in England, and are not drawn from the jury boxes, in the mode prescribed for designating jurors for the superior and county courts. (Stat. Civ. Act. § 224. p. 113. § 107. p. 79.) Trials per pais, 166. 169. 3 Blk. Com. 359.

We are, however, clearly of opinion, that the charge of misconduct in the officer, upon which the challenge was made, in this case, was not supported by the proof. For the purpose of ascertaining who were legally qualified to act as jurors, and without any previous communication with the counsel for the Quinebaug Bank, (the defendants,) he asked the latter to inform him who were stockholders in that institution ; who, thereupon, after expressly disclaiming any wish to influence him in the discharge of his duty, named to him several persons who were not such stockholders, adding an expression of his opinion, that they were independent and judicious men ; some of whom so named, were summoned as jurors ; but the officer was not biassed, by any representation made by the counsel. Without discussing minutely the testimony, it is sufficient to say, that there was no gratuitous or improper interference, on the part of counsel; no attempt by him to influence the officer, but, on the contrary, an express disclaimer of any such intention ; and not even a wish expressed that any particular person should be selected ; and that the officer sought no improper, illegitimate, or even unnecessary information, was governed by no improper motive, and was not influenced, in any degree, by the representation made to him. There is no ground for the imputation of any blame on either the counsel or the officer, or for the belief that any possible injury could arise to the plaintiff, by what occurred between them. There was no nomination of jurors, by a party, in any sense; much less in that in which that term is used in the authorities cited. The challenge of the jurors, on this ground, was therefore properly disallowed.

4. The next error assigned, is, that the plaintiff in error, in the court below, was denied the right of challenging, peremptorily, two jurors. We think that this decision was erroneous. A complaint under the statute of forcible entry and detainer, is now treated as a mere civil remedy, 1 Sw. Dig. 651. Dutton v. Tracy, 4 Conn. R. 79. Phelps v. Baldwin, 17 Conn. R. 209. Raymond v. Bell, 18 Conn. R. 81. Bell v. Raymond, Id. 91. If we were to look only at the provision in the § 110. of the act for the regulation of civil actions, which gives the right to each party in civil actions of peremptory challenge, as it now stands in the revised statutes, its connexion with the preceding part of that section, which relates only to causes pending in the superior and county courts, might suggest a doubt whether it was intended to apply to causes pending in any other than those courts, notwithstanding it embraces, in terms, “ every civil action but for the purpose of giving a construction to a body of laws, which, like our present “ revised statutes,” is composed, both of the laws which were actually revised, and also of those which, without being revised, were only incorporated with them, it is not only proper, but justice requires, that we look at them as they were originally passed, and at the circumstances and manner in which they have assumed their present form. The history and progress of laws furnish a legitimate and most useful clew to their construction. The provision which has been mentioned, was first passed, by the legislature, at its session in 1848, as an original and independent law, and provided, in a most general form, “that in the trial of any civil action to the jury, both parties shall have the right to challenge two jurors peremptorily.” (Stat. 1848. ch. 55. p. 47.) This embraced any such action, in whatever court it might be pending. Instead of placing it among the revised statutes as a distinct provision, it was incorporated with them, pursuant to the act relating to the revised statutes, passed at the same session, providing for the incorporation of the acts passed at that session, with the then recently revised laws, (Stat. 1848. ch. 80. p. 71.) by uniting it with the revised laws respecting the designation by lot of jurors, in each cause pending in the superior and county courts, where more than twelve are in attendance. It is certain, that its import or extent was not intended to be affected, because it was only to be incorporated with the revised laws. Its position in the present code, was a matter merely of convenience and orderly arrangement. It should therefore retain its original construction, by which it plainly applied to causes pending in the peculiar court whose judgment is now under consideration. And there is much more reason for allowing such right of challenge in such special tribunals, than in the superior or county courts; because in the latter, the jurors are taken by lot, whereas in the others, they are selected by the returning officer, where there is greater danger of having packed juries. The former are most emphatically within the spirit of the act in question. The judgment complained of should be reversed, for error on this point.

Hence it is unnecessary to consider the question involved in the remaining assignment of errors.

We advise that the judgment below be reversed.

In this opinion the other judges concurred, except Waite, J., who gave no opinion, being a stockholder in the Quinebaug Bank.

Judgment reversed.


text:
    Miner against Brown:
    IN EREOR.
    On the trial of a complaint in summary process to obtain possession of leased premises, each party has the right of challenging, peremptorily, two jurors.
    This was a complaint in summary process, brought by Robert Brown against Charles B. Miner, to obtain possession of leased premises. The defendant pleaded the general issue ; on which the cause was tried before Philip Morgan, Esq. justice of the peace, and six jurors, in July, 1849.
    On the trial, the defendant challenged one of the jurors tor cause, alleging, that he was hostile to the defendant, and a personal friend of the plaintiff, and that he was so prejudiced against the defendant and partial to the plaintiff, that he was incapable to judge impartially between the parties-The justice, after examining the juror, decided, that there was not sufficient cause of challenge, and disallowed it. The defendant thereupon challenged the same juror peremptorily. This challenge also the justice disallowed, and permitted the juror to retain his seat on the jury. The defendant made another objection to the panel, which was overruled. He also excepted to the charge given by the court to the jury.

      New-London,

    July, 1850.
    The plaintiff having obtained a verdict, the defendant thereupon brought a writ of error in the superior court, which was reserved for the advice of this court.

      L. Bristol and G. W. Goddard, for the plaintiff in error.

      McCurdy and H. Willey, for the defendant in error.
   Storrs, J.

Our decision, at the present term, in the case of The Quinebaug Bank v. Tarbox, (ante, p. 510.) disposes of the question on the error here assigned, that the court, on the trial of the cause below, denied to the plaintiff in error (the defendant in that case,) the right of peremptorily challenging any of the jurors. We there held, that the statute, upon which the defendant claimed that right, was applicable to a court constituted under the statute of forcible entry and detainer; and, for the reasons given in the opinion, in that case, it is equally applicable to a court held under the statute providing a remedy for obtaining possession of leased land, by summary process, under which the complaint in the present case was brought. Stat. Civil Actions, § 267. p. 126. The judgment below should be reversed for error on that point; and it is therefore unnecessary to consider any of the other errors assigned.

We advise the superior court, that there is manifest error in the judgment complained of.

In this opinion the other judges concurred.

Judgment reversed.


author: Church, Ch. J.

text:
    Saunders against Denison.

      New-London,

    July, 1850.
    Every creditor of an estate represented insolvent, has, prima facie, an interestin the settlement of it, which will give him a right of appeal from the doings commissioners, in rejecting his own claim, or allowing that of person.
    Though it should appear in the motion for appeal, that the appellant has an interest, the extent of such interest and how it is affected, by the decision appealed from, is to be averred in the reasons assigned in the superior court.
    The superior court will not erase a cause from the docket, on motion, unless the ground of erasure appears upon the record, when it is entered; leaving any extraneous or subsequent matter to be the subject of pleading.
    If in an appeal from probate, the appellant has an interest, as a creditor of the estate, at the time of the taking of the appeal, a subsequent tender to him of his debt, with interest and costs, if not accepted, will not destroy his interest in the appeal.
    Where the appellant, in his reasons of appeal, averred, that the deceased, in his life-time, had conveyed to him and another person, a tract of land, which the executor had inventoried as part of the estate of the deceased, and claimed to avoid such deed, as being invalid as against the creditors of the estate, and then to sell the same land to pay a large claim of his own, which had been unjustly allowed by the commissioners ; it was held, that an interest in the appellant was thus disclosed, which enabled him to prosecute his appeal, with reference to this matter, though he look the appeal only as a creditor.
    This was an appeal from the doings of the commissioners on the estate of Richard Woodbridge, deceased, in allowing, against that estate, a claim of 10,000 dollars, in favour of Peleg Denison, executor of the will of said Woodbridge.

    The appellant, in his reasons of appeal, stated, that the commissioners had, by their report, found, that said Wood-bridge was indebted to Denison, the appellee, by his bond, dated the 25th of April, 1843, by which he bound himself to pay to the appellee the sum of 10,000 dollars, on condition that he should alter, revoke or destroy his will. The appellant then averred, that said Woodbridge never executed such bond, or if so, it was not for any just or valuable cause or consideration ; nor was the condition annexed thereto at any time broken; nor was any debt due thereon against said estate.
    The appellant further stated, as one of his reasons of appeal, that said Woodbridge, at his decease, was justly indebted to the appellant, by book account, in the sum of which debt was by him presented to the commissioners for allowance, and was by them disallowed.

      The appellant further alleged, that the whole estate of said Woodbridge, both real and personal, was of much less value than the amount of debts allowed by the commissioners against his estate; that a certain parcel of land, contained in the inventory of his estate, and appraised therein at 4000 dollars, was by him, in his life-time, conveyed to the appellant and John J. Schoonmaker, and is now held by them ; and that the appellee now claims to avoid such deed, as not being valid as against the creditors of the grantor, and so, by the allowance of said bond as a debt against the estate, he will be enabled to sell said land for the payment of the debts so allowed, thereby depriving the appellant of the benefit of the conveyance made to him.
    The appellant appeared in court and moved, that the appeal be dismissed, and no further proceeding be had thereon, stating, as the ground of such motion, that the only interest of the appellant in the appeal, was as a creditor of the estate, and that the amount of his claim, with interest and costs, had been tendered to him, and was now brought into court.
    This fact was admitted, by the subsequent pleadings, terminating in a demurrer. The case was thereupon reserved for the advice of this court.

      Foster and Lippitt, (with whom was Wait,) in support of the motion to dismiss,
    after remarking, that the object of the appellant in this appeal, was, to procure a review of the doings of the commissioners in allowing, as a just claim against the estate, the bond of 10,000 dollars, which he claimed should not be allowed ; and a like review of their doings in disallowing his book account, which he claimed should have been allowed ; contended, 1. That the appellant had no such interest in either of these subjects, as authorized him to take and prosecute the appeal. The question in regard to both, is resolvable into the single enquiry, whether he is a creditor of the estate ; for if he is not, the allowance of the bond was nothing to him. But this interest may, of course, be extinguished, by the payment of his debt; and the record shows, that it has been paid in full. He is now a mere stranger to the estate, and can prosecute his appeal no further.
    2. That the alleged interest of the appellant, in connexion with another person, to a parcel of real estate, conveyed to them, as he says, by the deceased, does not vary the question, so as to confer on him the right to prosecute this appeal. In the first place, the appellant does not represent the interest, if any there be, which is really involved. Such interest is vested in Saunders and Schoonmaker. But Saunders alone appears here, and appears only for himself. Secondly, the character of the interest is not such that those possessed of it could contest the allowance of the bond in question, even if they had taken their appeal properly, and were properly before the court. It is not a present vested interest, but contingent, and too remote to avail an appellant against an order of the court of probate accepting a report allowing the debt. The party, not being a creditor, heir, devisee or legatee, is not "aggrieved," within the meaning of the statute. Thirdly, it is too late, at this stage of the cause, to make this question. Swan v. Wheeler, 4 Day, 137. Boynton v. Dyer, 18 Pick. 1. Fourthly, the appellant cannot now, by uniting himself with third persons, who have never taken an appeal, and who are not in court, continue to prosecute an appeal which has been taken, the interest which enabled him to take that appeal having been wholly extinguished. The attempt to prosecute this appeal, under these circumstances, is, in effect, a new appeal, with new parties, and on entirely new grounds.

      Strong and McCurdy, contra,
    contended, 1. That Saunders, as a creditor of the estate of R. Woodbridge, had such an interest as gave him a right to take the appeal. This is too obvious to be contested. And he was not bound, on his motion for an appeal, to set forth all the grounds on which he might claim it.
    2. That the course of practice has always been, that the reasons of appeal, on which the cause is to be tried in the superior court, are to be there assigned, and not before the court of probate.
    3. That as the appellant, in setting forth his reasons of appeal in the superior court, has stated, that he holds a conveyance of real estate from R. Woodbridge, which the appellee claims to be invalid against the creditors of the estate, this gives the appellant a right to prosecute his appeal. He is thus interested to defeat the appellee’s claim ; for if it is established, the appellee may get an order of sale, and thereby appellant’s title to his land ; which, even on the 1850. ground of the deed’s being voluntary, is good against all but creditors.
    4. That if there was a good and sufficient ground of appeal, the tender of the appellant’s debt does not enable the appellee to defeat the appeal, and establish his claim against all the other creditors. This would require every creditor resisting the allowance of any claim, to take an appeal, or his right to resist the allowance would be defeated, by payment to or compromise with the appellant.
   Church, Ch. J.

A motion was made in the superior court, that this appeal should be erased from the docket.

The first reason suggested, in support of the motion, is, that the records of the court of probate do not show any interest in the appellant in the decree or order appealed from ; and therefore, the appeal is void. But, as we understand the record, this reason is not true in fact. It appears that the appeal was taken by the appellant, as a creditor of the deceased, from the doings of the commissioners on his estate, in allowing the sum of ten thousand dollars, as a debt due from the estate to the executor; and the appellant claimed, that this was an illegal and unjust demand, and ought not to have been allowed. The interest of the appellant appears very dearly here. Every creditor of an estate represented insolvent, has, prima facie, an interest in the settlement of it. The allowance of such a claim as this, or of any other, may render the estate insolvent in fact; and if already so, may, and necessarily must, diminish the dividend to which the other creditors are entitled. In the case of Swan v. Wheeler, 4 Day, 137. no other interest appeared on the face of the appeal, than that the appellant was a son and heir of the deceased ; and that sufficiently showed that he had an interest.

The extent of the appellant’s interest, and how it is affected, by the order appealed from, is to be averred in the reasons filed in the superior court. In a suit at common law, the fact that the plaintiff has an interest, appears on the writ ; but the particular circumstances, disclosing a right of recovery, appear only by proper traversable allegations in the declaration. The analogy is obvious.

A second reason for erasing this cause from the docket, is, that since it has been pending, the executor has tendered to the appellant the full amount of the debt claimed by him to be due, and has the money ready in court to pay it; and so the appellant is no longer a creditor, and can have no further interest to prosecute this appeal. This is a new fact, brought upon the record, by a traversable and issuable averment. We do not erase a cause from the docket, upon motion, unless the ground appears upon the record, when it is entered in the docket; but if a matter is stated as a cause of erasure, which is rather a matter of plea, as in this case, than of motion, we leave the parties to try the truth or sufficiency of the new facts alleged, upon an issue formed for that purpose. Amidown v. Peck, II Metc. 467. State v. Wickwire, 19 Conn. R. 477.

We do not assent to the claim of the executor, in this case, that the tender of the money to the appellant has paid his debt, and thereby has destroyed his interest in this appeal. If a debt be payable in collateral articles, a tender of them, at the time and place, will extinguish the claim ; but a money demand is not satisfied by a tender, especially after it is due, unless the money be accepted. The appellant is still a creditor, and has an interest in the dividend to be declared, and may have good reasons for refusing the money tendered, which he is not bound to disclose.

All the creditors of this estate have an interest in contesting this large demand ; and its validity could as well be examined upon an appeal taken by one creditor, as upon as many appeals as there were creditors interested, and at a much less expense ; and therefore, such a course is the more to be approved. If such has been the arrangement between the creditors, it would be giving countenance to a mere trick-now to defeat it, in the manner attempted, after perhaps, the time of appeal for all other creditors had expired. In chancery proceedings, it is not unusual for some creditors to prosecute a bill in equity, in their own names, to enforce a remedy common to all, and for the benefit of all. New-London Bank v. Lee, 11 Conn. R. 112.

The appellant, in his reasons, sets up another ground of appeal, and another reason why he continues to prosecute it. Not that he is a creditor of the estate, but that he is a purchaser from the deceased. He claims, that the deceased, in his life-time, conveyed certain lands and buildings to him and Shoonmaker, of the value of four thousand dollars, and which the executor has caused to be inventoried as a part of the estate of the deceased, and which, he claims, is necessary, and threatens to sell, to pay the debts due from the estate, including the demand in controversy. The appellee, the executor, insists, that these facts constitute no good reason for proceeding with this appeal, and do not fortify or support the appeal.

The deed from the deceased to Saunders and Schoonmaker, was probably a voluntary deed, good as between the parties, and such as claim under them, but void as to creditors. If the appellant can show, that the debts due from the estate do not require the sale of this land, then he protects his title to it.

If this would have been a good ground of appeal originally; if an interest of this nature is such as the statute contemplates as necessary to give a right of appeal from an order or decree of a court of probate; then, we think, it may well be urged now as a good reason for proceeding with this appeal. Our statute authorizing appeals from probate, is broad enough in its terms, to include a case like this. The right of appeal is given to “ all persons aggrieved, by any order, denial or decree,” or by the doings of commissioners. Stat. p. 368. § 87. p. 370. § 96.

If this large demand of the executor, Denison, was allowed, it would become, in the settlement of the estate, a charge upon the land to which the appellant, otherwise, had a good title. He would thus be aggrieved, by the allowance of the claim, not only within the words, but within the meaning of the law. He might, perhaps, without this appeal, have had a right to protect his title against what he supposed to be an illegal and an unjust demand, by a bill in equity; but if he could, we see no good objection to his attempting the same thing, in this more simple and expeditious manner.

It is said, however, that, as he appealed only as a creditor, be cannot now prosecute his appeal in any other capacity. But the appellant took his appeal for the sole purpose of putting Denison upon the proof of his debt; and he now prosecutes it, for the same purpose, and no other. This claim of ten thousand dollars is the subject of controversy; and it must be immaterial to the executor, whether Saunders contests it, in one capacity or another. We have already said, that the appeal was well taken ; and if so, we do not well see why it may not be prosecuted for any reason, which still shows an interest in the appellant to controvert the claim in question. In appeals from common law courts, the practice is somewhat analogous, so far as the different constitution of the courts will admit. After a valid appeal from the county to the superior court, the addition of a new count is admissible, if it be consistent with the original cause of action, even if the original count be afterwards abandoned ; and this is the practice of every day. Less regard is paid to the forms of proceeding in courts of probate, than in the common law courts.

The superior court will be advised to disallow the motion to erase.

In this opinion the other judges concurred.

Motion denied.


text:
    Whitaker against Williams.

      A, having a claim against B, for an injury to his personal property, and being insolvent, made an assignment for the benefit of his creditors, under the statute of 1828. The trustee, by order of the court of probate, and with the assent of A, sold this claim to C, who put it in suit against B, in the name of A, and recovered judgment for 75 dollars damages, and 40 dollars costs. There being a fatal defect in the assignment, D, a creditor of A, then brought foreign attachment against A and B, making B garnishee. D, in his scire-fa-cias against B, claimed to recover the amount of said judgment; and C, being duly notified, appeared and assumed the defence of the suit. On the trial, it appeared, that C, in prosecuting the suit against B, had expended more than the amount of the damages and costs recovered against B, and that the sum so expended had never been reimbursed, and A continued to be insolvent. Held, 1. that such expenditure by C, created an equitable lien in his favour, on said judgment, which constituted a defence to the scire-facias ; 2. that though the defect in the assignment rendered it constructively fraudulent, as against creditors, yet there being no actual fraud in the transaction, or in any of the parties to it, C was not thereby precluded from availing himself of such defence.

      New-London,

    July, 1850.
    This case is not novus hospes here; having previously greeted us with its presence. So much of its history, previous to the last trial of it in the superior court, September term 1849, as is now material, may be seen in 18 Conn. R. 522. and 20 Conn. R. 98.
    On the trial above referred to, no question was made, by the defendant, as to the suit of Whitaker v. Clark, either as to the issuing and service of the plaintiff’s writ, or as to the judgment rendered in that suit, the execution issued thereon, or the demand made in virtue thereof, as stated in the present scire-facias. Under this process, the plaintiff claimed to recover the amount of the judgment in the suit of Clark v. Williams, mentioned in Whitaker & al. v. Gavit & al. 18 Conn. R. 523. and Whitaker v. Williams, 20 Conn. R. 99. It was agreed, that after the service of the writ against Williams, he had, pursuant to the statute, given notice to Gavil and others, of the pendency of the suit against him, requiring them, as they were the persons who claimed to be the owners of said judgment, and entitled to the benefit thereof, to defend him, (Williams,) in the suit; and they, having given security, as by law required, had assumed upon themselves, and were conducting, the defence of this suit.
    By the mutual agreement of the parties, the bill brought by Gavit and others against Whitaker and others, and the decree of the court thereon, were offered and received in evidence, as containing the facts upon which this case should be decided. Gavit and others thereupon offered evidence to prove, that they had expended, in prosecuting the claim against Williams to judgment, as described in said bill and decree, more than the amount of the damages and costs recovered in that suit; and that the sum so expended had never been paid or reimbursed, in whole or in part, to Gavit and others, and is now wholly unpaid ; and that Clark is, and since the commencement of the suit against Williams has been, wholly insolvent.
    To the admission of the evidence, so offered by Gavit and others, the plaintiff objected ; but the court received it; and the facts offered to be proved, were proved, and were found by the court. And upon these facts, the court decided, that the plaintiff in this process, was not entitled to against the defendant, and rendered judgment for the defendant to recover his costs.
    The plaintiff thereupon moved for a new trial, on account of the admission of the evidence objected to by him, and the final decision of the court.

      E. Perkins, in support of the motion,
    contended, 1. That the debt sought to be recovered on this scire-facias, being a debt in the case of G. W. Clark v. Williams, is, prima facie, held by the attachment; and the plaintiff is entitled to recover, if Gavit and others fail to establish a title to the debt, prior to the attachment. The burden of proof is on them.
    2. That Eaton, the trustee, had no right to the claim in question. He has no title, but a parol assignment from Clark, in trust for his creditors; which is to be deemed fraudulent and utterly void, as against the creditors of Clark, of whom the plaintiff is one. Stat. 363. Whitaker & al. v. Gavit & al. in err. 18 Conn. R. 522. Whitaker v. Williams, 20 Conn. R. 98.
    3. That Gavit and others have no title to this debt. In the first place, in their bill against Whitaker & al., where their title is set out, they pretend to none, except what they have derived, by purchase from Eaton, as trustee of Clark. Secondly, the assent of Clark to the sale, and his approbation of it, does not strengthen their title. Thirdly, their title being the same which Eaton had, is, of course, like his, fraudulent and void, as against the plaintiff. See the authorities above cited.
    4. That Gavit and others derive no equitable title, by virtue of the fact, that they expended in the prosecution of this claim, more than the amount of the judgment recovered. In the first place, this fact does not tend at all to establish in them any title to this claim, as assignees thereof; and except for proving such title, they have no locus in curia. Stat. 118. Secondly, whatever amount they have expended, it was expended in their attempt to reduce to their possession property, their title to which is fraudulent, and utterly void, as against the plaintiff, and certainly creates no equity in their favour. Thirdly, this expenditure gives them no lien on the judgment. nor any thing in the nature of a lien. Fourthly, they prosecuted the suit at their own expense, as the owners thereof, and with knowledge of all the facts as to the trustee’s title. See 20 Conn. R. 105.

      Strong, contra,
    contended, 1. That the plaintiff, in this scire facias, can have no claim for the costs recovered in the suit in the name of Clark against Williams. Clark himself had nothing to do with the prosecution of the suit in which those costs accrued. None of the expenses were defrayed by him, nor from his funds.
    2. That if Clark, or any one else in his right, or as his creditor, should claim the damages in the suit against Williams, as recovered for a cause of action belonging to him, there are divers answers which may be given. In the first place, as these damages are for a tort, which the creditors of Clark could not attach in his suit, he can have no right to complain, that Gavit and others receive the avails. Secondly, there is no room for the imputation of fraud, other than the trust for the benefit of the debtor, which this exemption from attachment repels. Patten v. Smith, 5 Conn. R. 156. Thirdly, Gavit and others have a lien on these funds, collected to defray the expenses of collection ; and those expenses, it is found, exceed the amount collected.
    3. That the equitable title to these damages is in Gavit and others, from the purchase made under the assignee, with Clark's assent; there being no fraud against them, but a strong equity in their favour.
   Storrs, J.

On the re-trial of this cause, since it was before us at the last term, (20 Conn. R. 98.) the same facts were admitted, which were admitted on the former trial; and Gavit and others, the real defendants, further proved, that they had expended, in prosecuting the suit in favour of Clark against Williams to judgment, as stated in the bill and decree which were in evidence, more than the amount of the damages and costs recovered against the defendant in that suit; and that said sum so expended, had never been reimbursed, in whole or part, to them ; and that Clark is, and ever since the commencement of said suit against the defendant, has been, insolvent. Gavit and others thereupon claimed, that such expenditure created an equitable lien in their favour on the said judgment, which constituted a defence to this suit. The court below so decided; and as we think, correctly.

This point, as a majority of the court thought, was not involved ; and therefore, could not be considered, when this case was before presented to us, because the additional facts did not then appear, which were shown on the last trial, and on which this question is now raised. We then decided, that under the act of 1828, in addition to the act against fraudulent conveyances, the assignment of Clark was to be deemed fraudulent and void so far as it respected his claim upon Williams, as against the creditors of Clark, of whom the plaintiff was one ; and that therefore, Gavit and others, as they had no title to said claim, excepting by a purchase thereof from the trustees under that assignment, could not retain that claim, as against the plaintiff, who had attached it against the assignor. On the last trial, however, Gavit and others interposed another defence, as they had a right to do, founded on the facts newly appearing, which have been mentioned, and insisted, that on those facts they had an equitable claim on the judgment recovered against Williams, to which it was subject, when it was attached by the plaintiff. As the title of Gavit and others, under said trustees, is now out of the question, that having been decided to be invalid, the enquiry is, whether they have a good title to it as against Clark. If they have, the plaintiff cannot recover, because he attached it subject to any legal or equitable claim or defence against Clark, to which it was subject when so attached. The judgment was recovered, in a suit, brought in the name and with the assent and approbation of Clark, by Gavit and others, who advanced all the moneys necessary to render it effectual. According to our previous decision, that recovery was for the benefit of Clark, and not of his trustees. He has become a bankrupt, never having refunded those moneys. If there were no other circumstances in the case, Gavit and others would clearly have an equitable claim on the judgment, to the extent of such advances, which here exceeded the amount of the recovery; and neither Clark, nor the plaintiff, claiming, as he does, under a subsequent title from him, should be permitted to interfere with the judgment to their injury. It would manifestly be the greatest injustice to. allow either Clark or the plaintiff to put the avails of it into his own pocket. We perceive no circumstances in this case, which should impair this lien of Gavit and others. It is true, both they and Clark, when they so operated in the prosecution of the suit against Williams, were mistaken as to the effect of the assignment, and erroneously believed, that a title to the claim had been acquired under it, by Gavit and others, by virtue of a purchase of it from the, trustees. They supposed, that although it was not conveyed, by the assignment, in terms, a court of equity would rectify that instrument, so as to make it express the intention of the parties, which was to insert it.

We decided, however, that it could not be thus corrected ; the effect of which was, that the claim did not pass under it, but remained in Clark, and was liable to the process of foreign attachment, by his creditors; and it is by virtue of such process, that the plaintiff claims to appropriate it, in this suit, to his own benefit, as the property of Clark. The judgment against Williams having enured to the benefit of Clark, and been recovered by his assent and cooperation, and procured, through the instrumentality of the funds of Gavit and others, why should their mutual mistake as to the effect of the assignment, throw the expense of the recovery upon the latter? Why should not such expense fall on Clark, as though there was no such mistake, and the suit had been prosecuted with his consent, for his avowed benefit ? Is there any doubt, that in an action of assumpsit, by Gavit and others, against dark, under these circumstances, to recover such expenses, the law would imply a promise, by the latter, to pay them ? We think there is not; and this seems to be decisive on this point.

It is urged, however, by the plaintiff, that the assignment, under which the claim was purchased and prosecuted, has been pronounced fraudulent as to the creditors of Clark ; and that therefore, a court will not assist the parties, as against those creditors, in any transaction connected with it. If there were any actual fraud in the object of this assignment, there would be force in this claim ; but none is imputed to any of the parties to it, or to Gavit and others. It was decided to be only constructively fraudulent, because it did not comply with the requirements of the statute under which it was made No moral wrong was involved in the transaction ; and we are not aware of any case or principle, which requires us treat such a transaction as fraudulent, excepting when a claim is set up under it against those as to whom it is thus construe-tively fraudulent. But in this case, Gavit and others set up a claim to the judgment against Williams, not under the assignment, but only under an arrangement with Clark, which derives no force or validity from it, and was subsequent to and unconnected with it. We give to the plaintiff the full benefit of the invalidity of the assignment. So far, therefore, from sanctioning or enforcing it, or any rights claimed under it, we treat it as being fraudulent and void, as against the plaintiff, and view the case as though it had never been executed. And we cannot doubt, if it never had been executed, and the arrangement found in this case had been made between Clark and Gavit and others, the latter would have an equitable lien on the claim which the plaintiff here seeks to recover.

A new trial is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.