Bolton v. Cummings

25 Conn. 410 | Conn. | 1856

Storrs, J.

1. If the deed, offered in evidence by the plaintiff, had been given to the defendant, or was presumably in his possession, secondary evidence of its contents would not be admissible, unless the latter had been notified to produce it and refused to do so ; or, if it had been given to the plaintiff, such evidence would not be allowed without proof of its loss. Commonwealth v. Emery, 2 Gray, 80. But neither of these was the case here. The deed was given to a stranger to the suit, and was presumably in his possession, as it is the universal practice here for every grantee of real estate to retain his title-deeds when he conveys the property, and not, as in England, to pass them to his grantee. In view of this practice, which would oftentimes render it extremely inconvenient to produce remote original title-deeds of lands, and of the provisions of our registry system, which requires those deeds to be recorded, and upon official copies of the records of which, reliance may safely be placed as to the contents of those deeds, our courts have departed from the common law rule in regard to the admission of secondary evidence of their contents, and held that where a conveyance of real estate, which is required to be recorded, is to a person not a party to the suit, it is competent, and sufficient in the first instance, to prove the contents of it by a copy certified by the recording officer, without laying a foundation for such proof by first accounting for the non-production of the original deed, and that such copy is equivalent to proof of the execution and contents of the deed by common law evidence; and such is now the established rule. Kelsey v. Hanmer, 18 Conn., 311. Talcott v. Goodwin, 3 Day, 267. Clark v. Mix, 15 Conn., 174. The superior court therefore properly admitted the copy of the deed offered by the plaintiff.

2. The discharge offered by the defendants was properly excluded. It clearly could not, under our statute allowing matters in avoidance to be given in evidence under the general issue, (Rev. Stat., tit, i., sec. 90,) have been used as a complete defense, without previous notice to the plaintiff. Nor is it very obvious on what ground a discharge, which extinguishes the right of action, can in any case be allowed in evidence only in mitigation of damages. But, without determining that point, if it may be used for that purpose, its effect would be to reduce the damages to a merely nominal sum, and it would therefore have substantially the same effect as if it were used as a bar to the action. Justice to the plaintiff therefore requires that he should have notice of its introduction, as well when it is to be used for the first of these purposes as for the other; and he might be easily and fatally entrapped, if it could be introduced in mitigation of damages without notice, because a defendant, for the sake of the advantage of springing upon the plaintiff a discharge which he would have no reason to expect, and would not therefore be prepared to meet, might be willing to submit to a judgment for nominal damages only. It would therefore be sanctioning a mere evasion of the statute, to permit a discharge to be thus used without notice.

3. There is no foundation for the claim of the defendants, that it was incumbent on the plaintiff to introduce the jailer as a witness, to prove that the plaintiff refused to receive Cummings back into custody after his escape. The defendants, by the ruling of the court, had the benefit of the presumption that the plaintiff so received him on his return to the jail limits ; and if the jailer had authority to receive him back in behalf of the plaintiff, it was competent for the latter to remove that presumption by any evidence which was in its character proper to disprove it, and the proof adduced by him was plainly proper for that purpose. There is no rule requiring such proof to come from one person rather than another who is a competent witness. The jailer, moreover, was as competent a witness for the defendants as for the plaintiff, on the question whether the latter received Cummings back into his custody.

4. We are of the opinion that the services which the defendant claimed that the jailer employed Cummings to perform in and about the jail, did not constitute an escape in him, as the defendants insist. If they did, it was clearly a voluntary escape on the part of the plaintiff, and would therefore be a bar to this suit; as there could afterward be no return or recaption of Cummings which would reinstate him in the custody of the plaintiff, and consequently there could be no subsequent escape by him. Those services were performed by him within the limits of the jail liberties, as designated by the county commissioners, while he was at large within those liberties, under the bond on which the present suit is brought; and the jury have found that they were performed under the direction and supervision of the jailer, and that the latter did not abandon his office.

The defendants derive no aid from the authorities adduced by them in support of their claim on this point. They are all cases where the question relates to the effect upon a sheriff, of his allowing a prisoner to enjoy the liberties of the jail, without requiring the bond provided by the statute; or of permitting him, while in close custody, and without having given such a bond, to do certain acts incompatible with that custody of him which is essential in order to constitute an imprisonment. The first of these classes of cases is obviously inapplicable to the present case, in which the prisoner was at large within the liberties of the jail, on a bond given pursuant to the statute, and the acts relied on by the defendants were done within those limits. Those liberties are considered only as an extension of the walls of the jail, and a departure by a prisoner from those walls is therefore plainly not an escape, so long as he keeps within the liberties. Seymour v. Hawley, 8 Conn., 70. 2 John. Cas., 207. 2 T. R., 131. This disposes of the claim of the defendants so far as it rests upon the acts of Cummings which were done without the walls of the jail. In regard to the other class of cases cited, whatever might be thought of their applicability to a case where the prisoner is at large within the liberties, on a bond executed according to the statute, they furnish no ground for the claim that the acts which, in the present case, were claimed to have been done by the prisoner, with the allowance.of the sheriff, amounted to an escape of such prisoner. He was not in the custody of the sheriff within the walls of the jail, and there was plainly nothing in the employment of him by the sheriff under his direction and supervision, to perform the acts which he did, which was incompatible with the custody in which he was held by the sheriff. Nor did such employment imply any permission to him to leave the jail liberties, or furnish him any facility for doing so which he did not previously have, (even if these would have any effect on the sheriff so long as he did not avail himself of them,) or, in short, evince any relinquishment by the sheriff of his previous authority over him as his prisoner. The main object of the statute which provides jail liberties for imprisoned debtors, was to enable them to obtain employment by which they might earn a livelihood for themselves and their families; and it would practically go far toward frustrating that humane purpose, especially in some of the places where jails are located, if they were not allowed to engage in such services as Cummings was employed to perform. We can perceive no imaginable reason why a jailer or sheriff might not, without a violation of duty, employ him as well as any other person, to perform those services.

5. It is unnecessary to consider what would have been the effect, if the county commissioners, when they designated the liberties of the jail, and determined that opposite the residence of Benton they should embrace the highway, had provided that the liberties should be contracted or enlarged according as the highway might afterward be narrowed or widened ; because, on the facts conceded in this case, there was no such provision. Such is not the true construction of the designation of the liberties by the commissioners. They fixed the lines of the highway as they then existed, as the limits of the liberties. By no rule of construction would such a designation import that they should change with subsequent alterations of the lines of the highway. Whatever alteration therefore might subsequently be made, the limits of the jail liberties remained as originally designated. But it did not appear that there had since been any alteration of the limits of the highway, either practically or otherwise. Nor did it appear that there was any change in the location of the fence for any other purpose than to accommodate the occupants of Benton’s house, or that it was designed as an alteration of the highway. The ease of Ely v. Parsons, 2 Conn., 382, is not applicable to the present, as the point there involved related to the construction of the original designation of the liberties, which were not claimed to have been subsequently altered. The charge on this point was therefore correct.

On the other points made by the defendants on the argument, the rulings complained of were too plainly correct to require argument in their support.

A new trial should not be advised.

In this opinion Hinman, J., concurred. Waite, C. J., was not present.

New trial not advised.