author: Hinman, J.

text:
    Potter against Payne.
    Where the plaintiff claimed title to the goods in question under a mortgage bill of sale from C, to secure the payment of C’s notes, payable in three months; and the plaintiff immediately exposed the goods for sale, and was in the act of selling them, from time to time, as he could find purchasers, the mortgagor being insolvent; when the defendant, a deputy-sheriff, attached them, in suits against the original owners, claiming that the conveyances to the plaintiff were fraudulent, as against creditors; the defendant, in an action of trespass against him for thus taking the goods, prayed the court to charge the jury, that the plaintiff had no right to sell the goods until after his notes fell due; which the court omitted to do; it was held, that the defendant, being a stranger to the mortgage transaction, had no right to interfere between the plaintiff and his mortgagor; and as evidence of fraud, the defendant had the benefit of the fact before the jury; consequently, the omission of the court was no ground for a new trial.

      New-London,

    July, 1851.
    Though the court, on mere questions of fact, reluctantly interferes with the verdict of a jury, and will do so, only in a very clear and strong case; yet where the question is one of fraud in the sale of goods, evinced, by the want of that change of possession which the law requires, to render the sale valid as against creditors, or by a change of possession merely colourable, there is such a blending of the facts with the law on the subject, the whole being submitted to the jury together, as frequently to render it necessary for the court, to avoid injustice, to be more liberal in the granting of new trials.
    Thus, where the plaintiff claimed title to goods, by virtue of two assignments, first, from A & B to C, and then, from C to the plaintiff; and, in trespass for subsequently attaching the goods, as the property of A & B, by their creditors, the defence was, that the assignments were fraudulent as against creditors; and the jury gave a verdict for the plaintiff; on a motion for a new trial for a verdict against evidence, the evidence, in the opinion of the court, shewed, that there was no substantial change of possession; and therefore, a new trial was granted.
    This was an action of trespass de bonis asportatis; tried at Nonvich, March term, 1851.
    On the trial, it was proved, that the goods in question had belonged to Redfield & Potter; and the plaintiff claimed, that Redfield & Potter, by a bill of sale, dated October 14th, 1848, for a valuable and bona fide consideration, sold and assigned them to Charles & Redfield; and that Charles Redfield, being indebted to the plaintiff in the sum of 4,739 dollars, by two promissory notes, one for 4,514 dollars, and the other for 225 dollars, payable to Redfield & Potter, or order, three months from the date, and by them indorsed to the plaintiff, by a mortgage bill of sale, dated and executed on the 4th day of January, 1849, conveyed them to the plaintiff; the condition of the mortgage being, that Charles Redfield should pay said notes according to their tenor. And the plaintiff claimed, that by virtue of such mortgage bill of sale, he took and retained immediate possession of said goods.
    It was further proved, that the defendant, as a deputy-sheriff, by virtue of several writs of attachment, in favour of the creditors of Redfield & Potter, legally served, attached the goods in controversy as their property; which goods were afterwards sold, in due course of law, on executions in favour of such attaching creditors. The defendant thus justified the taking and carrying away of said goods, as alleged in the plaintiff’s declaration.
    To avoid the prior claims of the plaintiff, the defendant also introduced evidence to prove, and claimed that he had proved, that the bills of sale from Redfield & Potter to Charles Redfield, and from Charles Redfield to the plaintiff, were fraudulent and void, as against the creditors of Redfield & Potter; and especially, that the plaintiff had not taken any possession of said goods, under the bill of sale to him, but that Redfield & Potter had been permitted, without any legal reason therefor, to retain possession of said goods and to controul them, in the same manner as before the bill of sale was given.
    The defendant also claimed, that it was proved, on the trial, that if the plaintiff had taken any possession of said goods, and exercised any controul over them, he had made sale of some part of those described in his mortgage bill of sale before any part of the notes described therein had fallen due.
    In relation to the consideration of the bill of sale from Redfield & Potter to Charles Redfield, and the possession of the goods, the testimony in the cause was substantially as follows:
    1. The deposition of William W. Baker. I commenced living with the late firm of Redfield & Potter, in New-London, April 3d, 1848. In September of that year, Mr. T. C. Potter, one of the firm, was so sick as to be unable to be at the store, and continued growing worse, so that he was in the store but very little from that time. About December of that year, on one Monday morning, when I came down to the store, I found Mr. Charles Redfield there, who came to the store, on that morning, earlier than usual, and he said to me, “William, would you like to continue in the store? I have bought out the goods of Redfield & Potter." I told him, I should like to remain. After breakfast, Mr. David Redfield came in, and says, “Well Charles, William is going to continue on with you.” Charles said, “Yes.” The stock then was very thin indeed—almost all run out—remnants. Mr. David Redfield would be in and out, mornings, later than formerly, settling up his accounts, and attending to his work that he was making for Mr. Loomis. I continued in the store and would occasionally collect bills for Mr. David Redfield, and get out trimmings for the goods he was making up for Mr. Loomis. When Charles Redfield bought out, the sign was painted over, and Charles Redfield's name put up. Some time in January, that sign was taken down. I did not inquire why the sign was taken down, as I was then owing them for goods taken up more than my wages would come to. Mr. Thomas Potter was occasionally in and out of the store. I knew nothing about the transfer to Mr. Potter. I have heard so since. About the last of January, or the first of February, I was away from the store in the forenoon, carrying some work to be made, and came back about one o’clock, when I found the doors of the store shut, and curtains up to the windows. I rapped at one of the doors, and Mr. Nehemiah B. Payne lifted up the curtain, and seeing who I was, let me in; and Mr. David Redfield said to me, “Mr. Payne has attached these goods.” Charles Redfield had been away, at that time, from the time the sign was taken down. I think Mr. Payne was waiting for Mr. Bristol. About two o’clock, Mr. Bristol came in, and after talking with Mr. Payne, a short time, they commenced taking down goods, and measuring them. About three o’clock, Mr. Goddard came in, and he went to measuring goods, the same as the rest. Mr. David Redfield would measure them, after they had done so, and take account, marking the cost upon a piece of paper.

      Question by A. C. Lippett, Esq., counsel for plaintiff.
    After Charles Redfield told you he had bought out Redfield & Potter, who had charge of the store?

      Ans. Charles Redfield. David Redfield was in and out, settling his bills, and attending to his own accounts.

      Question by the same. Had David Redfield a desk in the shop, where he settled his accounts?

      Ans. He had in the rear part.

      Question by the same. From the time of the sale of Redfield & Potter to Charles Redfield, was Thomas C. Potter ever in the store to do business?

      Ans. He was not.

      Question by the same. Have you any knowledge of any inventory being taken by Redfield & Potter, prior to the sale to Charles Redfield?

      Ans. Evenings, after the goods were put away, and there was no one in, they would be taking an account in a book of theirs, taking down pieces and measuring them. I asked one of them, Charles, I think, what they were doing? He said, they were taking an inventory.

      Question by the same. Had you any knowledge, at that time, that the firm of Redfield & Potter were about to break up their business?

      Ans. I would often hear Mr. Redfield say, when he was talking with others, that he was tired of the dry goods business, and was thinking about going out West.

      Question by the same. After the sign of Charles Redfield was taken down, about how often was Mr. Thomas Potter in and out of the store? How many times a day?

      Ans. I don’t know that he was in there, every day: he would often be in, and talk to Mr. David Redfield; and I overheard him once, speaking about Charles's intemperance.

      Question by the same. Did Mr. Charles Redfield, while he had charge of the store, purchase any new goods, to your knowledge?

      Ans. No, sir.

      Question by the same. Had the season arrived for the purchase of spring goods, prior to taking down the sign?

      Ans. No, sir; I should think not. I didn’t know exactly the time when spring goods were purchased.

      Question by the same. After the sale from Redfield & Potter to Charles, did David take any charge of the store?

      Ans. No; not up to the time when the sign of Charles Redfield was taken down. He was merely in and out, settling up his accounts, preparing to go West.

      Question by the same. Who paid you for your services, after Charles took charge of the store?

      Ans. No one; I was owing them, at the time when I left, February or thereabouts. My whole services did not square the account.

      Question by Lewis Bristol, Esq., counsel for defendant.
    Have Redfield & Potter ever called upon you for that balance?

      Ans. No, sir. I was not situated so that I could pay, at the time. David Redfield went away; and nothing has been said about it since.

      Question by the same. Did Redfield & Potter ever call upon you, before they went away?

      Ans. Mr. David Redfield spoke to me about it, a day or two before he went away, I think. I told him the circumstances, and he said “Well.” Mr. Thomas C. Potter was, I believe, away.

      Question by the same. Did you not expect that your services to Charles would go against your indebtedness to Redfield & Potter?

      Ans. I supposed that they would.

      Question by the same. Was there any thing said by David, in that conversation that you had with him, in regard to this matter, to the contrary of that?

      Ans. No, sir.

      Question by the same. Did you reckon up how much you were indebted?

      Ans. Yes; I did a few days before Mr. Redfield left. I reckoned it from the time I commenced to the time I left.

      Question by the same. Did you and David have any conversation in regard to the amount due them?

      Ans. I told him, you are going away, and I have been reckoning up, to see how much my wages come to; and I told him how much I was indebted to the firm, and that it was not convenient for me, at that time, to settle it. All he said was, “Well.”

      Question by the same. Did David appear to know, that you had reckoned in the time you had been with Charles?

      Ans. Yes, he did.

      Question by the same. How long was it from the time Charles's sign was put up until it was taken down again?

      Ans. I should think about a month. About a week after the sign was put up, Charles gave me notice of the fact.

      Question by the same. What did David do, in that store, during the time Charles pretended to have the management of it?

      Ans. He was in and out, settling his accounts, and attending to the work he was getting cut up and made for Mr. Loomis.

      Question by the same. Was he not in the store by far the greater part of the time?

      Ans. Not more than half of the time, if he was that. He came very late in the forenoon, and stayed till two or three in the afternoon; and was in and out during that time.

      Question by the same. Did David attend to any of the customers, daring that time?

      Ans. He occasionally did, when we were busy and had other customers. He took no interest in it, but merely showed the goods. I don’t recollect that he ever took any pay for it. He would often call me, if I was out in the back part of the store, and Charles was not in.

      Question by the same. After Charles’s sign was taken down, I understood you to say, that David had the entire management.

      Ans. Yes.

      Question by the same. During the time Charles pretended to have the management of the store, was he attentive to his business?

      Ans. Not so attentive as became the boss of the store. He was out oftener than he used to be, when he was a clerk; it was about the time when he was in a bad way.

      Question by the same. What kind of a “bad way” was he in?

      Ans. I would often hear of his being out, late at night; and once or twice, I heard that he slept out all night. He often appeared sleepy, in the store; and did not seem to take much interest in selling. He would sometimes be short with customers—would merely show them, and did not seem to try to make them take the goods, so much as he ought to.

      Question by the same. Did he not frequently exhibit the effects of liquor?

      Ans. Yes, sir. His breath often smelt as if he had been drinking liquor. I never saw him tipsy in the store; so that he could not get around, I mean by tipsy.

      Question by the same. Did he show the effects of drinking liquor before he took charge of the store?

      Ans. Not of any account. I thought he was getting in rather a bad way, just about the time he took charge; and he kept growing worse from that time.

      Question by the same. Was it not known to you, that Charles had frequently been intoxicated, before he took charge of the store?

      Ans. I never saw him intoxicated before.

      Question. Had you not frequently seen him when you believed him to be under the influence of liquor, although not quite intoxicated?

      Ans. No, sir; not before he bought out.

      Question. Did not his breath smell before that time?

      Ans. I think that I had smelt his breath, as though he had been drinking a little; but I never saw any other effects of it. He always appeared to be as smart as ever.

      Question. Had not David been accustomed to sit at the desk, in the rear of the store, before Charles took charge?

      Ans. Yes, sir. He kept the books, and did the writing for the firm.

      Question. What goods were those that David took out with him to Indiana?

      Ans. All that I know of, were Mr. Loomis’s.

      Question. How did you know they were Mr. Loomis’s goods?

      Ans. He said so; and Mr. Loomis, while Mr. Beckwith was there cutting, would often be in, looking at them, and talking about them.

      Question. How do you know that those were the goods he took out with him to Indiana?

      Ans. I don’t know, only what he told me he was a going to take.

      Question. What goods were those sold at auction, by Mr. Thomas Potter, after the attachment?

      Ans. I know nothing about what were so sold. I was in New-York, at that time.

      Question by A. C. Lippett, Esq., for the plaintiff. When was Charles’s sign taken down?

      Ans. I could not tell the time. I should think some time in the latter part of December.

      Question by the same. What was the Loomis’s work that you have spoken of?

      Ans. It was the goods, clothing, pantaloons and coats, made up by Mr. Redfield, for Mr. Loomis, out of his satinets.

      Question by the same. Do you know when the firm of Redfield & Potter was dissolved?

      Ans. No, sir.

      Question by the same. How long had Charles Redfield been clerk to Redfield & Potter, prior to his purchase?

      Ans. I don’t know. He was there when I went there, and continued in the store till his sign was taken down.

      Question. During the continuance of the firm of Redfield & Potter, did David attend the sales, or did he merely keep the books?

      Ans. He attended to both. He was a very fast writer, and was at the books but a little while at a time. He wrote the books generally evenings.

      Question by Lewis Bristol, Esq., for the defendant. How old were you at the time Charles had charge of the books?

      Ans. Not quite fifteen.

      Question by the same. Did you not tell me, a short time ago, that Charles had charge of that store until the time of the attachment.

      Ans. No, sir.

      Question by the same. Did not you say, that you could perceive no difference between the actions of Charles and David, between the time Charles took charge of the store, and the time of the attachment?

      Ans. No, sir. I told you I could see a difference.

      Question by the same. Did you say to me, that David took any more charge of the store after the assignment to Mr. Potter than he did while Charles had it?

      Ans. I told you, I thought he did. I told you, our stock was low at that time; Charles was away, and David was in then.

      Question by the same. What was the situation of the stock of goods?

      Ans. It was very much reduced. Any one could see that there had been no goods bought very lately; there were no desirable goods there.

      Question. Did customers fall off very much, in consequence of this?

      Ans. Yes, sir.

      Question by A. C. Lippett, Esq. In whose name were the books kept and the bills made, after Charles bought out Redfield & Potter?

      Ans. Charles Redfield’s.

    2. The testimony of Thomas Potter, the plaintiff, who testified as follows. Thomas, C. Potter, one of the firm of Potter & Redfield, was my son, and is now deceased; and David

      Redfield, the other member of that firm, is my son-in-law. I lent them money from time to time, and the balance was about 4,000 dollars in my favour. I had also indorsed their notes for about 450 dollars. Thomas C. Potter was sick, and unable to attend to business; and I advised them to close their business. They soon did so. They sold to Charles Redfield, who had been their clerk, and he assumed the payment of the debts due to me, and gave me his notes, indorsed by Potter & Redfield. He was then a steady and competent man. I soon afterwards discovered, he was getting into intemperate habits, and I then insisted upon additional security for my debts; and he gave me the bill of sale under which I claim; and, at the same time, he delivered to me the key of the store. I was not at all acquainted with the dry goods business, and I agreed with David Redfield to assist me, as a clerk; and he did, until the defendant attached the most saleable goods. The residue of the goods, not attached, I have been selling, and the avails I have applied on my notes secured by the bill of sale. When Redfield & Potter sold to Charles Redfield, their sign was taken down from the store, and his put up in its place; and when Charles Redfield sold to me, his sign was taken down. I have paid the rent of the store to the landlord.
    On cross-examination, he testified thus: I knew that Redfield & Potter were about selling out to Charles Redfield, and I did not know that he was a man of any estate. David Redfield, after the sale by Potter & Redfield, stayed generally at the store, engaged in settling his old business; and perhaps he occasionally assisted William W. Baker, the clerk, in waiting on customers. William W. Baker had been a clerk for Potter & Redfield. My son, the said Thomas C. Potter, left the store entirely, and died not long after. Charles Redfield had nothing to do with the store, or the business, after his mortgage to me. I did not know the form or way in which the business was done, by which the goods were mortgaged to me, at the time. Baker remained in the store, as clerk, after the mortgage.
    3. Allen D. Smith testified thus. I do business next door to Redfield & Potter’s store. I knew they had sold out to Charles Redfield; and soon after, their sign was taken down, and Charles Redfield’s put up. Before this, Charles

      Redfield appeared to be straight and correct, and capable of doing business.

      4. Charles A. Latimer’s testimony. I left about the middle of September, 1848. Charles Redfield's sign was put up, and he did business there, and borrowed money of me. I do not know that Charles Redfield had any other property.
    On the part of the defence.
    1. A. W. Tucker testified, that he knew Charles Redfield while he was clerk of Redfield & Potter. He was then occasionally intoxicated.
    2. William Bargett testified, that Charles Redfield was intemperate before he purchased of Redfield & Potter.

    3. Ralph Sizer testified, that before Charles Redfield purchased the goods of Redfield & Potter, he had seen him much intoxicated.
    4. N. B. Payne, the defendant, testified, that he served three attachments against Redfield & Potter. I found David Redfield in the store; he was then alone. He said the goods did not belong to him. He sent out, and Thomas Potter, the plaintiff, came in. We took the goods, and boxed them up. I acted under the direction of the creditor’s attorney. Redfield & Potter were always in possession, as I supposed. I saw the sign was changed, but the same men were there as before.
    5. John A. C. Gray, the attaching creditor, testified, that Redfield & Potter were indebted to them in about 1,100 dollars, and wanted an extension. Redfield told me, he had made a sale, temporarily, to his brother Charles, so as to get further time, and expected his father-in-law, the plaintiff, to aid in this. That Charles was not worth any thing. He said he should have the controul of the business as before. So I gave time, by taking Potter & Redfield’s note, indorsed by Charles. Afterwards, I called on the plaintiff, and asked him if Charles had sold out to him. He said, no; he had not bought out Charles—Charles did not owe him, but Redfield & Potter did. He said David Redfield was in the habit of doing just as he had a mind to, and referred me to him. David Redfield had charge at the store, on 20th of October, 1848; my note matured on the 18th.
    6. Mr. Avery testified, that he was clerk of Gray & Co.,
      in New-York; and David Redfield, in New-York, told Gray, that he should be paid, if he could get an extension.

      Thomas Potter, the plaintiff, was called again, and testified, that Mr. Payne was mistaken as to David’s being present, when the goods were sold. Gray called on me, as he says, and I told him I had a bill of sale of the goods, and had a claim on them; and the testimony of Gray as to my conversation with him, is false. I told him I bought the goods of Charles Redfield; and I never told him, that I knew nothing about the sale, and that David and the boys managed as they pleased.
    The defendant, on the argument of the cause, claimed, that the plaintiff had no legal right to make sale of any of the goods mortgaged to him, by the bill of sale, until after the debts due to him from Charles Redfield became due; and claimed, that the court should so charge the jury; but for what purpose this claim was made, was not stated. The court did not so charge the jury.
    The jury returned a verdict in favour of the plaintiff, for the value of the goods taken by the defendant, and the interest thereon. The defendant thereupon moved for a new trial, because the court declined to charge the jury as claimed by the defendant; and because the verdict was against the evidence in the cause.

      L. Bristol and G. W. Goddard, in support of the motion,
    contended, 1. That the verdict, in this case, was contrary to the evidence, as it did not show a real and substantial change of possession. Osborn v. Tuller, 14 Conn. R. 529. Carter v. Watkins, 14 Conn. R. 240. Crouch v. Carrier, 16 Conn. R. 505. Kirtland v. Snow, 20 Conn. R. 23.
    First, the sale to Charles Redfield, by Redfield & Potter, was fraudulent and void as to creditors. It was made by men in failing circumstances, to a man worth nothing, his notes being taken in payment, and those notes so indorsed, that the goods and effects of Redfield & Potter (pretended to be sold to him,) in his hands, could not be attached for their debts; and Charles Redfield could not be copied, Redfield & Potter having got an extension from their creditors, and having given their notes, with Charles Redfield's indorsement, to their creditors; and before the last-mentioned notes became due, the bill of sale was made to Thomas Potter.

      David Redfield, one of the firm of Redfield & Potter, the only man capable of acting, (Thomas C. Potter, the other member of the firm of Redfield & Potter, the son of Thomas Potter, having some time previously left the firm entirely, on account of sickness,) remained in the store, after the pretended sale to Charles Redfield, and assisted him in selling goods.
    There should be an actual visible change, so that creditors and others may be able to see it. If they find the goods in the possession of their debtor, that is enough, unless the claimant of the goods can give a reasonable excuse for want of change of possession. As much change of possession as is claimed in this case, might be given in any case, where a person wanted to make a fraudulent transfer of his goods. He could pull down the sign, make out a bill of sale to a worthless brother, and place himself in one corner of the store, where he could overlook every thing that was done, and bid defiance to his creditors; and this is all that was done in this case. There is no valid excuse given for David Redfield's remaining in the store. The settlement of his accounts might have been done up as well at some other spot. In the case of Osborn v. Tuller, the debtor went entirely out of possession for some time, but afterwards began to assist in using the property; and this was held fraudulent. Here, Redfield & Potter paid the clerk for the time he was said to be under Charles Redfield.

    Secondly, the sale from Charles Redfield to Thomas Potter, was fraudulent and void, as against creditors, for want of change of possession. The only change of possession was the delivery of the key of the store to Thomas Potter. William W. Baker, the clerk of Redfield & Potter, then in the store all the time, knew nothing of the sale to Thomas Potter; and none of the witnesses knew any thing of it, except Thomas Potter himself. This is not such notoriety as the law requires.
    2. That the judge on the trial, erred, in not charging the jury, that the plaintiff had no legal right to make sale of the goods mortgaged to him, until the debts due to him from Charles Redfield became due; for the reason that the jury might infer from such conduct, that the bill of sale to Charles Redfield from Redfield & Potter, was a mere sham—a sort of cover to prevent the goods from being attached as the property of Redfield & Potter; Charles Redfield being a mere conduit of the goods from Redfield & Potter to Thomas Potter.

      Foster and Lippitt, contra,
    contended, 1. That a new trial will not be granted, unless the verdict be manifestly and palpably against the evidence in the cause. Bacon v. Parker, 12 Conn. R. 212. Palmer v. Hyde, 4 Conn. R. 426. Bulkley v. Waterman, 13 Conn. R. 328. 333. Talcott v. Wilcox, 9 Conn. R. 134. Lafflin & al. v. Pomeroy, 11 Conn. R. 440.
    2. That the proof in this case clearly sustains the claims of the plaintiff. First, the assignment from Charles Redfield to the plaintiff was bona fide—the consideration ample. If this fact was denied on the trial, it was found by the verdict.
    Secondly, the conveyance from Redfield & Potter to Charles Redfield, was also found by the jury to have been bona fide. Possession was taken at the time of sale, October 14th, 1848, and was retained by him till January 4th, 1849, when sale was made to T. Potter, the plaintiff. The old sign was taken down, and a new one put up. The attaching creditors took the notes of Redfield & Potter, endorsed by Charles Redfield. The firm of Redfield & Potter was dissolved. Thomas C. Potter was never again in the shop. David took no part in the trade of the store. He was wholly engaged in settling up his accounts, and attending to the business of Mr. Loomis. The jury necessarily found the transaction bona fide, and that possession accompanied the sale, as they might do, with such evidence.
    Thirdly, possession was delivered by Charles Redfield, and taken by the plaintiff, with a bill of sale; the key of the shop given to the plaintiff. He took down the sign of Charles Redfield, and assumed upon himself and paid the rent of the store. He held controul of the store, and was in there much of the time. On the other hand, Charles Redfield was never in there, after the transfer to the plaintiff. David Redfield was employed by the plaintiff as a clerk, but never had controul of the property. If the transfer of Redfield & Potter to Charles Redfield was bona fide, (and the jury have said that it was,) might not the plaintiff employ
      David Redfield as a clerk to assist him, the plaintiff having controul of the property? Charles Redfield was the grantor of the plaintiff, and he was never in the store after the transfer. This is not like the case of Crouch v. Carrier, 16 Conn. R. 505. nor Kirtland v. Snow, 20 Conn. R. 23.
    3. That in a case where the court might come to a different conclusion, on a statement of the evidence, a new trial will not be granted, if the proof in the case will justify the jury in their verdict. Bishop v. Perkins, 19 Conn. R. 300. Clark v. Whitaker, Id. 319. Johnson v. Scribner, 6 Conn. R. 185. Babcock v. Porter, 20 Conn. R. 570. Hammond v. Wadhams, 5 Mass. R. 353. Coffin v. Phœnix Ins. Co. 15 Pick. 291.
    4. That a new trial will not be granted, though the judge omit to charge as requested, if the point be immaterial. Hoyt v. Denison, 5 Day, 479. Toby v. Reed, 9 Conn. R. 216. Selleck v. Sugar Hollow Turnpike Co., 13 Conn. R. 453. Dulles & al. v. De Forest & al. 19 Conn. R. 190. Fitch v. Chapman, 10 Conn. R. 9. Holly v. Brown, 14 Conn. R. 256. Here, the object of the claim was not stated; nor was the point material.
    5. That the charge of the judge gave the defendant the full benefit of the law in the case; and the verdict is in accordance with justice. If a new trial were to be had, there is no reason to suppose the verdict would, or ought to be, different. Hence, the discretion of the court should be exercised against the motion.
   Hinman, J.

The plaintiff’s title to the goods in question, was a mortgage bill of sale, to secure the payment of certain notes. Immediately after he took his mortgage, he exposed the goods for sale, and was in the act of selling them, from time to time, as he was able to find purchasers, when the defendant attached them. The defendant claimed, and requested the court to charge the jury, that the plaintiff had no right to sell the goods, until after his notes fell due. If there was no other infirmity in the plaintiff’s title than this, we think he would be entitled to retain his verdict. The defendant did not attach the goods subject to the mortgage, but in opposition to it. Indeed, they are of much less value than the amount of the notes; and the mortgagor, being insolvent, there was nothing but a naked equity, of no possible value, to attach, if the mortgage was valid. The defendant then was a stranger to the mortgage transaction, and could have no right to interfere between the plaintiff and his mortgagor. It was the mortgagor’s business to protect his own interests; and if he did not complain, it seems clear, that no third person could do so. The conduct of the plaintiff, in reference to the property, was a proper subject for the consideration of the jury, on the question of fraud; and for this purpose, it was, without doubt, made use of; and this seems to us, the only legitimate use that could be made of it. We are satisfied, therefore, that, in the view now taken of it, by the defendant, it was an immaterial fact; and the court was correct, in not charging the jury upon it, as requested. We do not, therefore, advise a new trial, on this ground.

The remaining question is, whether the verdict is against the evidence in the cause; and, on this ground, we think, a new trial must be granted. There is much evidence going to show, that both the transfers of the property were fraudulent in fact,—at least, on the part of the vendors. The testimony of the creditor, Gray, and of his clerk, goes very strongly to show this; and the circumstances stated by Baker, tend the same way; and then, the sales were family transactions, sweeping off all the vendor’s property at once, and were supported, for the most part, by family witnesses; and the first one was on credit, to a young man destitute of means, a clerk in the store, and whose habits were such, as to render him unworthy of credit, irrespective of his want of property. All this and more, from the testimony of Baker, makes, we think, a strong case of fraud in fact. But we do not place the case on this ground; and, therefore, it is not necessary to dwell upon it.

On mere questions of fact, this court reluctantly interferes with the verdict of a jury; and it should be a very clear and strong case, that should induce us to do so. But where, on a sale of goods, there is a want of that change in the possession of them, which the law requires, to render the sale valid, as against creditors; or, where the evidence is such as to show that such change as has taken place, is colourable merely, it stands on very different ground. In questions of this sort, there is such a blending of the facts with the law on the subject, as makes it necessary to submit the whole to a jury; and there is often great reason to apprehend, that it is considered by them to be their province to determine the law, as well as the facts in the case, and that it is submitted to them for that purpose. Where this is so, it is necessary to be more liberal in granting new trials, or injustice will often be done. It has, therefore, been our practice, not only to grant new trials, where there is no evidence of any change in the possession, accompanying and following a sale, but also in those cases, where the evidence is such as to satisfy the court, that such change as has taken place was colourable, and not a real or substantial change. Crouch v. Carrier, 16 Conn. R. 505, Bishop v. Warner, 19 Conn. R. 460. Kirtland v. Snow & al. 20 Conn. R. 23.

What, then, does the evidence prove, in regard to the possession of these goods, following the sale to Charles Redfield, and the mortgage from him to the plaintiff?

The testimony, on this point, comes chiefly from the plaintiff himself, and from the clerk, Baker: indeed, all of it, except the single fact stated by Mr. Latimer, in regard to the sign on the store being changed, on the purchase of the goods by Charles Redfield. In substance, the evidence seems to prove, that previous and up to December, 1848, Potter & Redfield were engaged in trade, at a store in New-London, with Charles Redfield and William W. Baker, assisting them as clerks. The partner, Potter, being in feeble health, had, for some time, neglected to attend at the store; so that the only persons having charge there were David Redfield and the clerks. David was the book-keeper, and, for the most part, was engaged at his desk, in the rear of the store. The firm was indebted to the plaintiff, in about the sum of 4,000 dollars. The plaintiff testifies, that in consequence of the sickness of his son, he advised them to close up their business; and they did so, by selling to Charles Redfield, their clerk, who gave his notes for the plaintiff’s claim, indorsed by the firm. He knew nothing of any change in the possession of the goods, or of the store, except that the old sign was taken down, and one with the name of Charles Redfield substituted for it. He states, that he soon discovered that Charles was getting into intemperate habits, and he then insisted on additional security; and, thereupon, Charles gave the mortgage bill of sale, under which he now claims title; and immediately, on taking his mortgage, he employed one of the original partners, David Redfield, to sell the goods, as his clerk.

Now, it will be observed, that the only visible act, evincing a change of ownership in the goods, except, merely, the delivery over of the bills of sale, and the formal delivery of the key of the store to the plaintiff, was the changing of the sign on the store. Baker does, indeed, state, that he observed them taking down and measuring goods, after the first sale; and he was informed, that this was for the purpose of taking an inventory. But, it was done in the evenings, after the store was closed, and, of course, could not be known, except to the parties. And Baker, himself, seems hardly to know whether an inventory was in fact taken. He says, that he was informed of the sale to Charles; and yet, his account with the old firm kept on, while Charles was claiming to own the goods, as before, and he did not even know of the mortgage to the plaintiff; and during all the time, up to the attachment, David Redfield was at the same desk, in the rear of the store, attending to the settlement of his accounts, occasionally waiting upon customers, and, some of the time, at work preparing goods to send West to his agent, Loomis. Looking, then, as any stranger to these contracts, or creditor of the firm, must be supposed to look at their business, he finds Redfield & Potter apparently engaged, with their clerks, in the same store, and in the same manner of doing their business; and up to the very day of the attachment, there was no change in the tenancy of the store. Redfield & Potter continued to hold it, as they had done before; and Redfield, being actually there, in possession, he must be presumed to be there, under his lease, and not by the mere sufferance of his brother Charles. It is true, the plaintiff states, that he paid the rent after he took his mortgage; but he does not claim, that he came under any obligation to do so, either by agreement, or otherwise. Every thing that was done, then, was to change the sign, when Charles Redfield purchased. We cannot think this was enough. The parties could easily have changed the ownership of the store, for the time being; and we do not see, how we can say, there was any real, substantial change in the possession of the goods, while the store which contained them, was in the possession of the original owners. We think, too, that Redfield's continuing at the store, and occasionally waiting upon customers, is very strong evidence, that the sale was merely colourable.

Upon the whole, then, we advise a new trial.

In this opinion the other Judges concurred.

New trial granted.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    Cross and another against Robinson.
    The testator devised to his wife the use and improvement of one half of his real estate during her widowhood, and then devised to his five sons in fee, subject to such estate in his wife, all his estate both real and personal, provided that none of the real estate so given to his five sons should be sold until three years after the widowhood of his wife, unless sold to some of said five sons, meaning to have it improved all together until that time. By conveyances, in the first instance, from one to another of the sons, and thence to strangers, before the expiration of the time limited in the will, three-fifths of the estate passed to the plaintiffs. In an action of ejectment, brought after the death of the testator’s wife, but still before the expiration of said time, against one of the devisees, it was held, that the object of the clause in the will limiting the power of alienation, was, to protect the widow in the enjoyment of her interest without the annoyance, which might result from the occupancy of a stranger with her, and not to deprive the sons of all power of alienation during the period specified; consequently, the title of the plaintiffs was not repugnant to the will.
    By a mortgage deed containing the usual covenants of seisin and warranty, the mortgagor is estopped from denying the title of the mortgagee, or his assignee.

      As between the mortgagor and mortgagee or his assignee, the payment of the mortgage debt, after the law-day, does not affect the legal title, in a court of law; and of course, will constitute no defence to an action of ejectment.

    Ouster, as between cotenants.
    This was an action of ejectment, for two parcels of land and the buildings thereon, in the town of Stonington, commenced in March, 1849.
    The plaintiff pleaded the general issue, in which the cause was tried, at Norwich, at an adjourned term in August, 1850.

      New London,

      July, 1851.

    On the trial, the plaintiffs founded their claim of title on the will of Joshua Robinson, deceased, dated April 5th, 1837 ; and approved by the court of probate, July 6th, 1838. The clauses of the will material in this case, are stated in Williams v. Robinson, 16 Conn. R. 517, 18.
    The plaintiffs also claimed title to the demanded premises, at the time of bringing this suit, and to a recovery now, by virtue of the deed from William Robinson to Joseph Robinson, and the mortgage deed of Joseph Robinson to Rufus Williams, and the decree of foreclosure under the same; the deed of Benjamin Robinson to the plaintiff; the deed of Rufus Williams to John H. Cross, one of the plaintiffs; the deed of Benjamin Robinson to Joseph Robinson, and of Joseph Robinson to the plaintiffs; and the mortgage deed of Joseph Robinson to Russell Bently; the assignment to Isaac Pomeroy, and the facts found therein, and the decree in his favour against the defendant, and the assignment thereof to said Cross; and by mortgage deed of the defendant to William D. Wells, and an assignment of the same to said Cross; the bill in chancery brought thereon, and the facts found, and decree of foreclosure on the same, in favour of said Cross against the defendant; also the deed of Nathaniel Robinson to Joseph Robinson; all these documents or copies thereof, being produced in evidence.
    It was agreed, that the defendant was in possession of the premises, and had been, for many years previous to the death of the widow of Joshua Robinson; that she was dead, at the time of bringing this action; but that the period of three years since her death would not be completed till the day of November, 1850.
    The defendant claimed, that he had made full payment to said Cross of the debt, costs, &c., due on the Wells mortgage; and to prove this fact, he offered in evidence the receipt of said Cross to the defendant; which said receipt, the plaintiffs agreed was true and correct, and which was in these words:
    “I certify that Nathaniel Robinson has this day tendered to me, 1665 dollars, 64 cents, in full payment of a decree of foreclosure which I obtained against said Robinson at the last March term of the superior court for New-London county; which said money I have received, but not in full payment of said decree. Westerly, August 17th, 1849. John H. Cross.”

    It was also agreed, that no demand to be let into possession of the premises, or any part thereof, had ever been made by the plaintiffs of the defendant.
    The defendant then, to show title in himself of two-fifths of the premises, exhibited in evidence the deed of Thomas W. Robinson and Joseph Robinson to himself.
    It was agreed, that the defendant had never ousted the plaintiffs of the possession of the demanded premises, unless, on the facts admitted, with the evidence of title as above set forth, there was an ouster implied by law.
    The plaintiffs claimed, that there had been nothing done to vary their legal right to a recovery of the demanded premises since the bringing of this suit, and therefore claimed a verdict and judgment for possession of all the land described in the declaration.
    The defendant claimed, that under the will of Joshua Robinson, the plaintiffs had no right to recover possession of any part of the demanded premises, until three years after the death of the testator’s widow.
    The defendant further claimed to be the owner of two-fifths of the demanded premises; and that, until demand of possession had been made of him, or he had done some act to hold the plaintiffs out of possession, there was no such ouster as between cotenants, as was requisite to enable one cotenant to maintain ejectment against his cotenant.
    The defendant further claimed, that the plaintiffs had, in any event, shown title to no more than three-fifths of the demanded premises, undivided and in common; and that, they could not therefore recover possession of the whole of the property, but only for their proportional share; and the defendant prayed the court to charge the jury in conformity to these claims.
    The court declined to charge the jury as claimed by the defendant, and did charge in conformity to the claim of the plaintiffs.
    The jury returned a verdict for the plaintiff; and the defendant thereupon moved for a new trial, for the omission of the court to charge the jury as prayed for by him.

      Foster and Wait, in support of the motion,
    contended,
    1. That the plaintiffs, in this case, under the will of Joshua Robinson, cannot recover possession of the premises until three years have elapsed after the death of the testator’s widow. Williams v. Robinson, 16 Conn. R. 517. Jackson d. Church & al. v. Brownson, 7 Johns. R. 227, 232. Jackson d. Lewis & ux. v. Schutz, 18 Johns. R. 174. 184.
    2. That the defendant was owner of two fifths of the demanded premises, undivided and in common with the plaintiffs. There was no demand, by the plaintiffs, to be let into possession, and there was no act done amounting to an ouster of one cotenant, by another: therefore, there can be no recovery. 1 Sw. Dig. 508, 9. Barnitz’s lessee v. Casey, 7 Cranch, 456. Clark v. Vaughan, 3 Conn. R. 191. Carpenter v. Thayer al. 15 Verm. R. 552. Chiles v. Conley, 9 Dana, 385. Allyn v. Mather, 9 Conn. R. 114. Obert v. Bordine, 1 Spencer, 394. Harmer v. James, 7 Sm. & Marsh. 111.
    3. That the plaintiffs, at the most, shew title to three-fifths of the premises only, and cannot, therefore, recover possession for any more than their proportional share. Harrison & al. v. Stevens, 12 Wend. 170. Van Alstyne & ux. v. Spraker, 13 Wend. 578. Johnson v. Norton, 3 B. Munroe, 429. Vrooman v. Weed, 2 Barb. Sup. Ct. R. 330. Truax v. Thom, Id. 156. Moore v. Abernathy, 7 Blackf. 442.
    4. That an action of ejectment will not lie on a satisfied mortgage. Richards v. Sims, Barnard, Ch. R. 90. The King v. St. Michaels, Doug. 632. Matthews v. Wallyn, 4 Ves. 128. Martin d. Weston v. Mowlin, 2 Burr. 969. Petty v. Clarke, 5 Peters, (U. S.) 483. Jackson d. Norton & al. v. Willard, 4 Johns. R. 41. Hitchcock & ux. v. Harrington, 6 Johns. R. 290. 294. Runyan v. Mersereau, 11 Johns. R. 534. Jackson d. Curtis v. Bronson, 19 Johns. R. 325. Porter v. Seeley, 13 Conn. R. 564.

      Strong and Pomeroy, contra,
    insisted, 1. That the case of Williams v. Robinson, 16 Conn. R. 517., so far from supporting the position for which it had been cited, by the defendant’s counsel, shewed decisively, that the mortgagee was then entitled to his action at law to recover possession, without waiting for the death of the testator’s widow.

      2. That the restriction on alienation, imposed by the will, if valid, had been strictly complied with; and an estate in fee simple of three-fifths of the premises had become vested in the plaintiffs, by regular conveyances in accordance with the provisions of the will. Where there is a general devise, without specifying the quantity of interest, and an absolute power of disposal is given, the devisee takes a fee. 1 Sw. Dig. 149. 4 Kent's Com. 535, 6. (3rd. ed.)
    3. That the plaintiffs have done nothing to divest themselves of the right to maintain this action. The receipt given by the plaintiff Cross to the defendant, is not a conveyance to the defendant of the premises, or any part thereof, or a discharge of any legal or equitable claim, or right to the possession of any part of the premises; nor is it so expressed; nor was it so intended. The payment of the mortgage money, after forfeiture, does not divest the mortgagee of his legal estate, but only gives him a right to compel a reconveyance. Phelps v. Sage, 2 Day, 151. Dudley v. Cadwell, 19 Conn. R. 218.
    4. That the cause was properly submitted to the jury, upon the evidence. The substantial part of the evidence for the plaintiffs, is contained in the motion and the documents therein referred to, uncontradicted and unobjected to. The jury had only to consider the sufficiency of that evidence to warrant a recovery.
   Ellsworth, J.

The premises were formerly the property of Joshua Robinson, deceased, under whose will both of the parties claim title. The plaintiffs are admitted to be tenants in common, (though in unequal proportions,) of three-fifths of the premises, by a good and valid title, provided the said three-fifths could, in law, be sold and alienated under the will of the said Joshua, as has been attempted. Three of his five sons, who take the estate, each one-fifth, sold each his one-fifth to the plaintiffs, or those under whom they claim; and the plaintiffs acquired an undisputed title thereby, and to that extent, unless the provisions of the will stand in the way of the sons’ right to sell and convey to strangers. The defendant, who is one of the five sons and devisees, but not one of the three who conveyed the three-fifths, which are in the plaintiffs, insists, that the plaintiffs could not acquire a title under said will, as they now claim.

It appears, the testator left a widow, who was, by the terms of the will, to have the use and improvement of one undivided half of the estate in question, during her life, while the other half, and the fee of the half incumbered by her life estate, were given to his five sons.

The will, after devising the premises to the widow and five sons, as just mentioned, contains this proviso: “Provided nevertheless, it is my will, that none of the real estate which I have given to said five sons, shall be sold, until three years after the decease or widowhood of my wife Nancy, unless sold to some of my five sons, meaning to have it improved all together until that time; and it is my will, that whoever of my said sons shall improve said farm, he shall pay a reasonable rent for the same.”

Now, as the title of the plaintiffs passed originally from the three sons to their grantees and to the plaintiffs, strangers, before the expiration of the three years next after their mother’s death, and perhaps too, before her death, the defendant insists, the plaintiffs, being strangers, under the language of the will, could not acquire a title, however sufficient the deeds were made, in form and substance. It will be noticed, that this suit was not commenced until after the death of the widow; but it was commenced before the expiration of the said three years.

We think the objection is not well taken. The restriction upon the power of alienation, imposed by the testator’s will, was intended merely to protect the use and enjoyment of the premises for the widow of the testator, so long as she should survive, or remain his widow. It was not intended, that the sons should not raise money, by mortgaging or otherwise disposing of their respective shares of the estate; and they have, in fact, each one of the five, during the life of their mother, or perhaps one of them, soon after her death, if that be important, broken up the joint title, by alienating to strangers their respective interests. And now, since the mother is dead, and having died before the present suit, it would be strange indeed, if any of the sons, after what each has done, can interpose this personal objection drawn from the will, to defeat a recovery, on the ground of the violation of its provisions.

But the objection comes with an ill grace from the defendant. He has given a deed, with covenants of seisin and warranty to Wm. D. Wells, one of the plaintiffs’ grantors, of the two-fifths he claims to have bought of one of his brothers, and the only interest he now sets up, in himself.

We need not, however, spend time on this point, because this clause in the will has already been fully considered, and received a construction from the court, in Williams v. Robinson, 16 Conn. R. 517. where the question arose as to the ability of the sons to alienate their shares, during their mother’s life. The court there held, “that in order to ascertain the construction to be put upon this provision of the will, it becomes necessary to look at the object which the testator had in view in making it. Was it to deprive his sons of all power of alienation, during the widowhood, or rather to protect the widow in the enjoyment of the interest devised to her? The latter seems the most probable. He directs that the estate shall be improved, by one of the sons whom his widow may elect, and who is to be accountable to her and the other sons for the rent of their respective shares. He doubtless meant to guard the widow against the annoyance which might arise from having a stranger occupy with her, one-half of the house and farm.”

The next objection raised by the defendant, allowing the plaintiffs have got title to three-fifths of the estate under the will of Joshua Robinson, is, that these said three-fifths are in common and undivided with the other two fifths, and as the defendant claims to own the said two-fifths, and has not objected to the plaintiffs’ entering into possession of their three-fifths with him, he has not, as he says, disseised the plaintiffs of their three-fifths; and it is agreed, there is no other disseisin done by the defendant, but what arises from his being quietly in possession as an owner: hence the plaintiffs must prove, and they insist they do prove, that he has no right to be in possession at all, that he is not a tenant in common of any title or right. If the defendant’s claim is well founded, he must prevail; but if he has no right or title, then the plaintiffs must prevail.

As to the two-fifths, the following appear to be the facts. Joseph Robinson, at a certain period, was the owner of one-fifth, under the will of his father, and of one-fifth by deed from a brother. These two-fifths he conveyed, by deed, to one Russell Bently, to secure the payment of a note of hand for 250 dollars, which he owed him; after this mortgage to Bently, Joseph conveyed them fully to the defendant; and the defendant then conveyed them to Wm. D. Wells, to secure him for endorsing a note of 800 dollars, with covenants of seisin and warranty, making no mention of the prior mortgage to Bently. Wells was obliged to take up the note he had endorsed; and he afterwards assigned said debt to Cross, one of the plaintiffs, and executed to him a deed, in the usual form, conveying his security in the two-fifths and the benefits of the covenants of his deed from the defendant. The Bently debt too became, through Isaac Pomeroy, the property of said Cross, though Bently did not, when he assigned his debt to Isaac Pomeroy, in form assign his legal title to the security. The two debts and the security being thus vested in Cross, so far as the facts aforesaid show, he brought his bill to foreclose the defendant’s equity in the security and obtained a time of limitation, from the court, for payment of these debts, and another small one, in the whole 1,552 dollars, 96 cents; but before the limitation expired, the defendant tendered the aforesaid sum to said Cross, together with a few dollars more, which was accepted by him; but, as he then insisted, and still insists, was not received in full payment, although enough was done perhaps to prevent the decree of foreclosure from taking effect. The defendant insists, the debts are fully paid; and therefore, that since the Bently mortgage was of earlier date than the Wells mortgage, and since Bently has not, released to any one his legal title to the two-fifths mortgaged to him, though he did assign the debt, Cross has not now the legal title to these two parts; and as he, the defendant, has paid the debts, as he says, he is, and was, when this action was brought, really the owner of his two-fifths, and therefore had a right to be and remain in possession in common.

To this defence there are two answers made by the plaintiffs; and the latter of them at least, we consider to be unanswerable. First, the plaintiffs, being owners of three undivided fifths, can recover the whole for themselves and their cotenants from the defendant, who, the plaintiffs insist, shows no legal title at all, though he may possibly have an equitable one. If Bently has it, as the defendant insists, they say, this does not help the defendant until he gets a reconveyance from Bently, which reconveyance, they further say, would not avail the defendant, as the release would enure to the plaintiff’s benefit, for the reason next to be mentioned. Secondly, the defendant, as already stated, conveyed the two-fifths to Wells, to secure him against an endorsement, which deed contains the usual covenants of seisin and warranty, without any exception, so that, by virtue of Wells's deed to Cross, the debt, land, and covenants, became vested in him. Now, could not Wells, by virtue of his warranty deed from the defendant, have claimed the title and possession, and at once have ejected the defendant. And if he could, his assignee or grantee, said Cross, can do it, now; unless indeed, the supposed or actual payment of the debts by the defendant, affects the question, which we think it does not. The defendant is estopped, by the covenants in his deed, from denying the title of Cross to the said two-fifths.

We consider it too well settled, in the state of Connecticut, to be debated, at this day, that as between the mortgagor and mortgagee, or the assignee of the mortgagee, payment of the mortgage debt, after the law-day, does not affect the legal title, in courts of law. However much mortgages, at the present time, are treated as personal property—the mortgagor, as the owner of the land, and the mortgagee, as having a lien or right to be paid out of it, before any other person; still, as to the parties themselves, the real and public title remains, and payment of the debt is no extinguishment or release of the title of the mortgagee. This was settled in our reports as early as 1805, (Phelps v. Sage, 2 Day, 150.) and has been repeatedly confirmed, and more frequently recognized, since. Roath v. Smith, 5 Conn. R. 136. Porter v. Seely, 13 Conn. R. 564. Smith v. Vincent, 15 Conn. R. 1. Doton v. Russell, 17 Conn. R. 152.

Hence the superior court was correct in refusing to go into the question of payment of the mortgage debt. It was immaterial. If the debt was indeed paid by the defendant, and there was no equity in the way of obtaining a release deed, the defendant had a clear remedy, by obtaining a reconveyance of the title, to defeat the action of ejectment.

We do not advise a new trial.

In this opinion the other judges concurred.

New trial denied.


author: Storrs, J.

text:
    Brooks against Holland.
    Where a note was given promising to pay the principal sum mentioned therein in three years, and the interest thereon half-yearly; in an action brought before the principal became payable, but after two half-yearly instalments of interest had become due, to recover such interest, it was held, 1. that a recovery must rest on, and could only be claimed by virtue of, the express contract to pay it, contained in the note; 2. that such interest upon a declaration properly framed for the purpose, was recoverable; but 3. that a general indebitatus count in assumpsit for money had and received, without stating the nature of the indebtedness, was not an appropriate form of declaring, in such case; an indebtedness for interest due to the plaintiff by the defendant, not being money of the plaintiff received by and in the hands of the defendant.
    This was an action of indebitatus assumpsit, in three counts.
    In the first count, it was alleged, that on the 7th day of April, 1847, the defendant was indebted to the plaintiff in the sum of nine thousand, two hundred dollars, for so much money before that time lent and advanced to the defendant, by the plaintiff, at the special instance and request of the defendant.
    In the second count, it was alleged, that, at the same time, the defendant was indebted to the plaintiff in one other sum of nine thousand, two hundred dollars, for so much money before that time paid, laid out and expended, by the plaintiff, for the defendant, at the special instance and request of the defendant.
    In the third count, it was alleged, that on the 1st day of March, 1849, the defendant was further indebted to the plaintiff in the sum of eleven thousand and five hundred dollars, for so much money before that time had and received, by the defendant, to and for the use of the plaintiff.

      New-London,

      July, 1851.
    The action was commenced on the 3d day of March, 1849.
    The defendant pleaded non assumpsit, on which issue was joined; and thereupon the cause was tried, at an adjourned term of the court, at Norwich, in August, 1850.
    On the trial, the plaintiff offered in evidence a promissory note, of which the following is a copy: “Norwich, Ct. 26, 1846. Three years from date, I promise to pay Samuel R. Brooks, or order, sixteen thousand dollars, with interest at six per cent. per annum, payable half-yearly, for value received. John C. Holland.” This instrument was accompanied by proof that it was signed by the defendant, and by him delivered to the plaintiff, on the 26th day of 1846.
    To the admission of such note in evidence the defendant objected, on the ground that it did not tend to support either of the counts in the declaration. But the court overruled the objection and admitted the evidence.
    No other evidence having been offered in support of the plaintiff’s demand, the defendant requested the court to charge the jury, that the plaintiff was not entitled to recover, under either count in his declaration, because at the time of the commencement of this suit, the note had not matured, and there was nothing due thereon but two years’ interest; and that interest merely was not recoverable under the common money counts.
    But the court charged the jury, that the declaration was properly framed to entitle the plaintiff to recover the interest which accrued and became payable upon the note when the suit was commenced.
    The jury returned a verdict in favour of the plaintiff, for the sum of 1,920 dollars, being two years’ interest on the note. The defendant thereupon moved for a new trial, for the admission of improper evidence and for a misdirection.

      Strong and Hovey, in support of the motion,
    contended, 1. That the common courts in assumpsit for money lent, paid, and had and received, do not lie for the recovery of interest due upon a note, before the principal is payable. Shepard v. Palmer, 6 Conn. R. 96. 2 Greenl. Ev. § 112, 113, 117. Power v. Butcher, 10 B. & C. 329. (21 E. C. L. 91.) 1 Chitt. Pl. 350. 351. Chitt. Cont. 591, 602. Saund. Pl. & Ev. 672, 677, 678, 679. 2 Stark. Ev. 57, 62. Wharton v. Walker, 4 B. and C. 163. (10 E. C. L. 302.) 1 Leigh's Nisi Prius, 46. 69. 1 Steph. N. P. 317. 320. 327. Chitt. on Bills, 581.
    2. That the proper remedy is a special action on the contract, or an action of debt or indebitatus assumpsit for interest upon, and for the forbearance of, the principal sum loaned. Saund. Pl. & Ev. 606. 2 Chitt. Pl. 88. Chitt. Bills, 680. 1 Chitt. Pl. 356, 357, 358. Greenleaf v. Kellogg, 2 Mass. R. 568. Cooley v. Cose, 3 Mass. R. 221. Hastings v. Wiswall, 8 Mass. R. 455. Greening's Forms, 18., note (b.)

      Foster and Wait, contra,
    insisted, 1. That a promissory note is admissible in support of the common money counts, not only between the payee and maker, but also between the indorsee and maker. Wild v. Fisher, 4 Pick. 421. Webster v. Randall & al., 19 Pick. 13. Ramsdell v. Soule, 12 Pick. 126. Cole v. Cushing, 8 Pick. 48. Eagle Bank v. Smith & al., 5 Conn. R. 75. Townsend v. Derby, 2 Metc. 363. Camp v. Tompkins, 9 Conn. R. 545. 554, 5. It is perfectly immaterial what the consideration of the note is: it is sufficient that there is a consideration; that the defendant has received money’s worth. Payson v. Whitcomb, 15 Pick. 212. 215, 16. Ainslie v. Wilson, 7 Cowen, 662. Hughes v. Wheeler, 8 Cowen, 77.
    2. That indebitatus assumpsit, in its general form, will lie in analogous cases, founded on the same general principle. First, it will lie to recover the purchase money of land, sold and conveyed to the defendant. 1 Sw. Dig. 574. 2 Chitt. Plead. 39. Shephard v. Little, 14 Johns. R. 210. Littrell v. Michael, Watts & Serg. 277. Secondly, it will lie in all cases where a debt is created in the plaintiff’s favour, and the law will imply a promise to pay it. 1 Sw. Dig. 684. Archb. N. P. 63. Thirdly, it will lie to recover the amount due on a special agreement not under seal, executed on the part of the plaintiff, Clarke v. Gray & al., 6 East, 569.
      Cooke v. Munstone, 1 New Rep. 351. 355. 2 Wms. Saund. 350. n. 2.
    3. That if the principal of this note had been due, at the time the action was commenced, the plaintiff could clearly have recovered both principal and interest, in this form of action. Fitch v. Bogue & al. 19 Conn. R. 285. White v. Brown, Id. 578. But a contract to perform several things, at several times, is divisible in its nature, and an action will lie for the non-performance of any one of the stipulations which has matured. Cooke v. Whorwood, 2 Saund. 337. Rudder v. Price, 1 H. Bla. 550. Badger v. Titcomb, 15 Pick. 409, 413. The case stands on the same ground as if separate notes had been given, one for the principal and others for the interest, or the principal had been made payable by instalments; in which case, the defendant would unquestionably be liable, in this form of action, for every default of payment when due.
   Storrs, J.

All the counts of the declaration in this case, are in general indebitatus assumpsit; the two first being for money lent and advanced, and paid, laid out and expended, and the other for money had and received.

By the terms of the note offered in evidence by the plaintiff, on the trial, in support of this declaration, the principal sum mentioned in it had not become payable when this suit was commenced; but the interest thereon was made payable half-yearly from the date of the note, and the two first semiannual instalments had become due, and were unpaid. The principal of the note, not being, at the commencement of this suit, due, by the terms of the contract, evidenced by it, it is properly conceded, that it was not then recoverable, either in this, or any other, form of declaring.

But it was claimed, by the plaintiff, on the trial below, and decided by the court, that, although the principal of the note was not recoverable, by reason of its not being payable until after the commencement of this action, the plaintiff was entitled, under this declaration, to recover the amount of the two instalments of interest which were then due, by the terms of the note, and a verdict was rendered for such amount; and the present motion is brought to review the decision.

The only point made before us, is, whether the recovery was proper, under the count for money had and received, it having been conceded by the plaintiff, that it cannot be sustained under the other counts for money lent, and paid, laid out and expended.

This case does not require us to consider in what cases interest is recoverable, as damages, in the absence of an express or implied agreement to pay it; nor from what circumstances a promise to pay interest will be inferred or implied; nor under what form of declaration it is recoverable, where there is such express or implied promise, and the principal to which it is attached has become payable. It is material to observe, in the present case, that interest is not sought to be recovered, as incidental to a debt due, nor by way of damages for the unlawful detention of a debt; nor on the ground of an implied promise to pay such interest. The principal debt here is not due; and is not, therefore, yet recoverable; and for that reason, there is no circumstance from which an implied promise to pay the interest on it can be inferred. A recovery of interest, in this case must therefore rest on, and can only be claimed by virtue of the express contract to pay it, contained in the note adduced by the plaintiff. That the semi-annual instalments of the interest which had accrued by the terms of that note, before the commencement of this suit, were recoverable, although the time stipulated in the note for the payment of the principal had not then arrived, under a count framed upon the promise contained in the note itself, is unquestionable, because such is the express agreement between the parties, as evidenced by the terms of the note itself. Perhaps also it might be recovered, as has been conceded in the argument, under a general indebitatus count for interest. The question therefore before us, is not, whether interest, as such, due by express contract, on a debt not yet payable, can be recovered, in an appropriate form of declaration, but whether a general indebitatus count in assumpsit for money had and received, is an appropriate form of declaring for its recovery.

It is well settled, that it is not sufficient, in the indebitatus count in assumpsit, to declare generally, that the defendant, being indebted to the plaintiff, promised to pay him, without shewing for what the defendant was so indebted; but that the nature of the indebtedness must be alleged, although it may be set forth in general words; as that it was for use and occupation, without describing the premises; for goods sold, without particularizing them; for work and labour performed, without specifying its particular character. The reason given for this rule, is, that the defendant will not otherwise know for what debt the plaintiff brings his action, or what defence to make; and that a recovery in such action would not otherwise be a bar to a future action for the same debt, as it would not appear to be the same, unless the cause of it be stated. The nature of the indebtedness being a necessary and material averment, it must be proved as alleged; and proof of an indebtedness of a different sort, would obviously be a variance, and therefore inadmissible. No one would think of proving a debt for labor, under a count for goods sold, or money lent.

The question then arises, whether the indebtedness existing in this case, is truly stated in the latter count of the declaration; in other words, whether an indebtedness for interest due to the plaintiff by the defendant, is money of the plaintiff received by and in the hands of the defendant. It would seem, that a mere statement of this question would suggest the inevitable answer, unless some artificial principle of law has been adopted, by which these totally different things are held to be imported by the same terms. A mere indebtedness, on whatever account, from one person to another, is a mere chose in action, and creates a liability, which may be enforced by suit, but is not and cannot, while it remains in the shape of a mere indebtedness, in any just sense be considered as money of the creditor in the hands of the debtor. The debtor owes the amount due, but owes it only as a debt; and an indebtedness for interest, which as defined by Lord Ellenborough, (3 Campb. 296.) is, properly speaking, a compensation agreed to be paid for the use of money, forborne by the lender, at the borrower’s request, no more constitutes the amount so due, money of the creditor in the hands of the debtor, than if it were an indebtedness for the use of any other thing, or on any other account; and as well might a debt due for the use of any personal property, or for goods sold, or for services rendered, be deemed money of the creditor, to the amount of such debt, in the hands of the debtor, as a debt due for interest; and indeed, if the idea be admitted, as a legal principle, that a debt from one becomes so much money of the creditor in his hands, it would be immaterial in what form the debt were due, whether by simple contract, or specialty, or judgment; and an action of general indebitatus assumpsit for money had and received, would be sustainable, in all of these cases. Interest is amere debt, founded, not on the idea that the debtor has received from the creditor the amount of such debt in money ; but that the debtor has had the use of money of the creditor, for which use he has agreed to pay a certain compensation ; and therefore, the declaration must count upon such use, or an indebtedness arising out of such use, as the considerations for the promise of the defendant. The idea that a debt, for interest agreed to be paid for the use of money, is money of the creditor, in the hands of the borrower, arises from confounding the principal sum loaned with the interest or compensation for its use. The principal sum is so much money of the lender, which has been received of him by the borrower, and which may be received back, when it becomes due, by the former, as so much money of his had and received by the latter; but the interest is only a price or sum agreed to be paid for the use of such principal, and has never been received, by the lender, of the borrower; and it is entirely immaterial to the former, whether the latter has realized, from any source, any benefit for the use of the money, after it was so loaned.

And the promise contained in the note in this case, is divisible, as between the principal sum and the interest on it, and is applicable to them severally and distinctively, as is obvious from the circumstance that a suit may be brought upon that promise, so far as it respects the interest, when the principal is not yet payable, and none can be sustained on it, as it respects the principal. And the purport of that promise is, that the defendant will pay the principal sum originally received by him of the plaintiff, and also the interest, that is, the accustomed legal compensation for its use or forbearance at the times respectively stipulated in that instrument; but it would be inappropriate to call such compensation, so agreed to be paid, money of the plaintiff had and received by the defendant, in the same sense as the money for the use of which compensation is thus promised, or indeed in any sense whatever.

The distinction, in this respect, will be presented more broadly and clearly, if an example be taken of the lending of a personal chattel other than money, with a promise of return and compensation for its use, payable from time to time, before the period stipulated for its return; which is precisely analogous in principle to the present case; and where it is quite obvious, that the price stipulated for its use, accruing before its return, would be recovered in general assumpsit, only under a count for its use; the use of it being the ground of the indebtedness on which the law would imply a promise to pay such compensation.

It thus appears, that the interest recovered in this case, was not, in any true sense, money of the plaintiff received by the defendant. Nor does it fall within the principle of any of the comparatively few exceptions to the general rule, that, in order to sustain the count in assumpsit for money had and received, it must be shewn, that the defendant had received money of the plaintiff, or for his use. The cases establishing the rule, as well as the exceptions, are very fully stated in Chitty on Contracts, in chap. 3, sect. 5, under the title of money had and received, (pp. 601. & seq.) to the last American edition of which by Mr. Perkins, it is deemed sufficient to refer.

The claim of the plaintiff to recover, in this case, derives no support from any authority to which we have been referred. In England, the recovery of interest, under a general count in assumpsit for money had and received, has been perseveringly resisted previous to the enactment of the recent statute of 34 W. 4. c. 42. although it had been allowed, in some cases, under the other money counts; but in those cases, the action was brought after the money which was sought to be recovered had become payable, and interest on it was permitted to be recovered, not as such, but only in the shape of damages for the improper retention of the money by the defendant; on which ground no claim to it can of course be set up, in the present case, as the principal sum is not payable. And even where interest was agreed to be paid for money lent, it was not allowed to be recovered, in connexion with the principal sum, under a count for money had and received, but an additional count for interest was necessary, and such a count was invariably introduced for that purpose. Such count continues to be inserted where interest is claimed in connection with the count for money had and received, except where it may be recovered under the latter count, by virtue of the provisions of the statute just mentioned. And the introduction of a count for interest, in that form of declaring, where interest is claimed, is advised by Mr. Chitty, where he gives the form of that count. In this, and some, at least, of the other states of this country, a greater liberality in the allowance of interest, by way of damages for the detention of the principal debt, is allowed than in England; and it has been decided, contrary to the cases there, that, under the count for money had and received, the principal sum may be recovered, and also interest upon it; but the latter is given, not as interest, but only by way of damages for the detention of the principal; and we find no cases in which, under that count, interest has been permitted, or even claimed to be recovered before the principal has become payable: and wherever the expression has been used, either by judges, or elementary writers, with reference to the decisions in this country, that interest may be recovered under a count for money had and received, it will be found, by looking to the cases to which they refer, that it was only intended that, where the principal was recoverable, interest might be allowed, by way of damages, for its detention. None of those cases were actions for the recovery of interest merely. If, after the principal of the note offered in evidence, by the plaintiff, in this case, should become payable, we should hold, that not only such principal, but also interest thereon, might be recovered, under a count for money had and received, it would be, not on the ground that the latter was allowable as interest, or compensation for the use of the principal, but only as damages, the measure of which would be taken to be the amount allowed by law for the use of money in cases of loans, that furnishing a convenient, and at the same time, what would be deemed a just, rule on the subject, which only is meant when it is so frequently said, that interest is allowed by wray of damages.

Hence it is obvious, that the plaintiff derives no aid in his claim, to recover the interest in this suit, from the argument that it would be allowed together with the principal, if the latter were recoverable. Nor do we accede to the claim, that, under the familiar principle that promissory notes constitute evidence under a count for money had and received, the note in question is to be deemed evidence of money had and received by the defendant of the plaintiff, to the amount of both the principal and interest promised to be paid by it. Such an instrument furnishes evidence under that count only because a presumption naturally arises from the promise to pay a sum of money, that the promiser has received the money of the promisee; a presumption which our courts hold, as a rule of policy, contrary to what has been decided in some others, to be conclusive, to prevent the defendant from shewing, in order to defeat the action, that the note was given for any other consideration, subject, however, to the qualification that it shall not preclude the defendant from proving the real consideration, for the purpose of availing himself of any legal defence against the instrument. But it being considered only as a promise of re-payment, it furnishes no presumptive evidence of the reception of any greater amount of money by the defendant, than the principal promised to be paid. A presumption that the promiser had received of the promisee the amount of the interest, that is, the compensation which he agreed to pay for the use by himself of the principal, would be most unnatural and indeed absurd, and is warranted by no principle or case. So far therefore, as the promise in the note in question respects the interest, it furnishes no evidence under this count.

For these reasons, the court are of opinion that the note offered in evidence, by the plaintiff, in the trial, was improperly admitted, and that there should be a new trial.

In this opinion, after a prolonged consultation, all the other judges concurred.

New trial granted.