15 Conn. 152 | Conn. | 1842
Lead Opinion
Upon the motion in arrest, the first question is, whether a sufficient cause of action is disclosed. The plaintiff, in his declaration, has counted upon a bond, in the usual manner; which, upon oyer, is set forth, atjd thus becomes a part of the declaration. Whether, therefore, the
The bond is dated the 27th of June ; and the assignment is dated, the 29th of April. The condition is, to make a true and perfect inventory of all the goods of the insolvent debtors, which shall come into their hands and possession. It is said, that as I. Mix & Sons might have acquired property since the assignment, or might have had property not assigned, this bond requires what the court had no power to require, and so is extra-judicial and void: that in fact, it requires the trustees to inventory and account for all the property I. Mix & Sons had, at the date of the bond. The bond purports to be an official bond, and counts upon the appointment of Mix and Peck as trustees of all the goods and estate of Isaac Mix & Sons, which were assigned for the benefit of their creditors, by a deed dated the 29th of April, 1837, and recorded in the office of the court of probate, and has a condition, that if the obligors shall make a true and perfect inventory of all the goods and estate of the insolvent debtors that shall come into their hands or possession, or into the hands and possession of any other person for them, &c. Taking the parts of this bond together, it is very manifest, that it is conversant only about the goods and estate assigned, by the deed referred to, as recorded in the probate office. This appears from the connexion with that deed ; and is further shown from the expression of goods coming into the hands of other persons for them. Any other construction would be a forced construction, and would require us to presume, that the court taking the bond did not intend to do its duty, rather than to make the legal inference that it did intend to discharge its duty. And we can see nothing in the terms of the bond, requiring such a construction. The bond goes on, and requires the trustees to render a true account of their trusteeship. That alone is the subject-matter; and that alone is what is contemplated in the bond. Had the
But were this more doubtful, as the terms of the bond are not prescribed by statute, and as the defendants were not held in custody until they executed it, as in Billings v. Avery, 7 Conn. Rep. 236., we do not think that the bond will be void beyond the excess. In Newman v. Newman, 4 Man. & Sel. 66., it was held, that where a bond was given conditioned for the performance of several things, that, at common law, those which were good, might be separated from those which were bad. And in Collis v. Gwynne, 7 Bing. 423., it is said by Gasalee, J., there is no provision in the act that the bond should be taken in a particular form ; and Ch. J. Tindal says, I do not see why we are to call in aid a distinct condition, which may be illegal, to vitiate that which is clearly legal. This subject is fully and ably considered, in The United States v. Brown, Gilp. 155. to 182.; and Hopkinson, J., comes to the conclusion, that if a bond be taken at common law, with the condition in part good, and part bad, a recovery may be had on the bond, for a breach of that which is good. And in statutory bonds, where there is nothing in the statute, declaring bonds altogether void, which are not conformable to the statute, the same principle is to govern. And see Van Deusen & al. v. Hayward & al., 17 Wend. 67. A similar principle in the case of a deed of lands, was recognized, by this court, in the recent case of Goodman v. Newell, 13 Conn. Rep. 75.
It is claimed, that the replication to the 2nd and 3rd pleas is bad, because it avers, that the trustees did not make an inventory of the estate of said debtors; by which, it is said, the whole estate of the debtors must be intended, and not merely that which -was assigned. An answer similar to that given first with respect to the bond, would, on this motion in arrest, be sufficient. But, on examining the pleadings, we think that this exception could not have been sustained, in any stage of the proceedings. The allegation is of an assignment, on the 29th of April, of all the real and personal estate
The bond, then, having been duly executed, and being valid upon its face, is the breach of it duly alleged ? The court of probate ordered, 1. that the trustees should make and return an inventory; 2. that they should give notice of the time for the appointment of commissioners; and 3. that
It is further objected, that there are no persons prosecuting this bond, who can be recognized as creditors; and this presents the questions in the 7th and 8th pleas, and the answers thereto, whether any persons can be entitled to the benefit of this bond, except those whose debts have been allowed by commissioners. And that, as a general rule, must be admitted. But is this necessary, when there were no commissioners, and when the want of such a board, is one of the very acts complained of, as a breach of the bond 1 Now if, as we have seen, it was the duty of these trustees to give notice of the time of the proposed appointment of commissioners, and they have neglected so to do, can they defend, in consequence of an act or an omission occurring from their own violation of duty 1 The party who claims to be aggrieved, could not, by any possibility, prove these debts before commissioners, if there were none ; and if it was the duty of the trustees to take the steps to procure their appointment, then it must follow, that the creditors have omitted to prove their debts, not from any neglect of their own, but that of the defendants, the trustees. We think, then, that
It is said, however, that if the debt need not be proved before commissioners, it must be ascertained by some court: it must be a judgment debt, before the creditor can sustain a suit upon the probate bond; and Willey v. Paulk, 6 Conn. Rep. 74., is cited in support of that doctrine. In that case, no such question arose ; and the court say, that the claim had been established in due course of law. The judgment having been admitted in evidence, the question was, whether the sureties were bound by it. But in giving the opinion of the
Were the law, however, upon this point, as claimed by the defendants, we do not see why the judge of probate cannot sustain an action upon the bond, as well as a sheriff upon a receipt of property, when it has not been delivered. The sheriff is answerable for it, to the creditor, or to the debtor. There being a breach of the bond, the plaintiff has a right to recover. The amount he must recover, is not a matter to be determined by the form of the pleadings, but by the proof. The only question now is, is the plaintiff entitled to judgment ? And it has long since been settled, that it need not appear in the declaration, for whose use the bond is sued. Clark v. Russell, 2 Day, 112.
It is further claimed, that the debts are not set out with sufficient particularity to entitle the plaintiff to judgment. But if the plaintiff is entitled to judgment, for other breaches assigned than the non-payment of debts, there can be no ground for arresting the verdict, because the plaintiff must have damages for such breaches; and upon this motion the court are not to look to see what damages were given.
Indeed, upon the record, as presented to this court, it does not appear what was the sum awarded in damages. In ad
There was also a motion for a new trial, embracing some of the points which are in the motion in arrest; and so far as they are similar in principle, they need not be considered here; as, for instance, the validity of the bond. But there are questions not appearing upon the record.
And first, a copy of the deed of assignment, in connexion with the bond, was offered in evidence, no notice having been given to produce the original. It was objected to, as not being the best evidence ; but was admitted, by the court. On the other hand, it was contended, that this was to be considered as a will recorded in the probate office, a copy of which is always admitted in evidence. The statute of 1828 requires these assignments to be lodged in the probate office for record, but does not require any action of the judge in regard to them, except to receive them, and this not in terms ; but when it makes it the duty of the assignee to leave it for record, it must certainly be the duty of the officer with whom it is to be so left, to carry into effect the object designed in leaving it. The law intended, that the public should have knowledge of these assignments, as well when the property was personal, as when it was real; and in case of deeds of land, it has been uniformly holden, in this state, that third persons may always prove their existence, by a copy from the town-clerk, and this without proving the execution of the the deed. Talcott v. Goodwin, 3 Day, 267. So, too, in England, where a deed has been enrolled, the practice has been, to give them in evidence, though Judge Butter seems to
Again, one object in recording this instrument in the probate office, is, to enable that court to act in relation to the property conveyed. But the orders of the court would be of no validity, unless there was evidence of the assignment which formed the subject matter of them. And can it be claimed, that a judge should be obliged to prove the validity of his acts, if the assignee chose to retain the original, by accidental proof of the correctness of his copies 1 This would be to place the judge in a situation where he must be careful to retain living witnesses to support his records.
It has been claimed, that it is the duty of the court to retain the original assignment on file. If this were so, we see not but it would follow, that copies of it must then be evidence for all persons who wanted to use it; otherwise, the files must be transported, whithersoever it became necessary to use them ; a practice, which, in all other cases, is condemned. But we see no authority in the statute, for the court of probate to retain the assignment. It is the title deed of the assignee, and cannot be taken from him, without an express law, or by clear implication.
Again, the bond given by these defendants is founded upon, and recognizes, this assignment. It recites that William Mix and Jesse Peck are appointed trustees of the goods and estate of Isaac Mix & Sons, for the benefit of their creditors, by a deed of assignment, dated April 29th, 1837, and recorded in the probate records of the district of New-Haven. Now, if this bond had recited the deed of assignment in the words of it, it could not be doubted, that it would, as against the obli-gors, be sufficient evidence of the existence of such assignment, as well as of its terms. We must hold, that a deed under seal, by a party acknowledging he has received or given a conveyance, is sufficient evidence of that fact, or at least, admissible as tending to prove it, — as against the party making such acknowledgment. It is true, that in this case,
It is further contended, on the part of the plaintiff, that the defendants having, by their bond, admitted the existence of this instrument, are estopped from denying it. The defendants, on the other hand, say, that if this were so, it should have been pleaded. Now, without going into the learning upon the subject of estoppels, it seems to us, that it is enough to say with Ch. J. Holt, can there be better evidence of a deed than for one to own it and recite it, under his hand and seal? Dillon v. Cranley, 12 Mod. 500. In the opinion of the majority of the court, the copy was properly admitted.
Another objection is, that it is signed by I. Mix, by virtue of a power of attorney ; and there is no proof of the due execution of that power of attorney. But if we are right in the position, that the execution of the instrument may be proved, by the acknowledgement of the bond, that acknowledgement must extend to every thing necessary to prove the due execution. It recognizes it as the act of I. Mix & Sons ; and if it purports to be signed, by virtue of a power of attorney, it cannot be their act, unless the attorney was duly authorized. Of course, it must follow, that if it was the act of I. Mix & Sons, he who used their names had that authority which made it theirs.
It is further objected, that the assignment was invalid, as it referred to an instrument not then existing ; and reliance is placed upon the case of Drakeley & al. v. Deforest, & al. 3 Conn. Rep. 272. In that case, there was no specification or description at all of the property, but a reference to a schedule not then made; and the court held, that all depended upon the schedule. But this is an assignment of all the property of the firm in this state, excepting household furniture, a schedule of which is to be made and annexed thereto,
It is also objected to this assignment, that it is invalid, as being too general — “ all the property of the company in this state.” Now, supposing their property in this state was known to be principally in a manufacturing establishment in New-Haven, but some carriages were on the way to Hartford and Norwich for sale ; could it be said, that nothing passed by this conveyance? Suppose the trustees immediately took possession of the establishment; could these men say, that nothing passed ? Or, suppose the deed was of all their property in New-Haven, or in the new township; would nothing pass i Such general assignments have not been uncommon in this state. Bates & al. v Coe, 10 Conn. Rep. 280. Mills v. Skinner & al. 13 Conn. Rep. 436. 441. And we see not how the party making this assignment can object to its generality. Creditors, perhaps, might say, that such sweeping conveyances might be used to cover property, and thus be void as against them. But when the property can be identified, as the property of the assignors, we know of no principle which will admit them to say, that the solemn instrument which they have made, may be treated by them as if it did not exist. In the case of Pearpoint & al. v. Graham, 4 Wash. C. C. Rep. 232. 237. (if the facts are fully stated,) there was an assignment of all the estate of the debt.
Several objections were made to evidence tending to show the existence of debts due from I. Mix & Sons. . They have been considered, substantially, upon the question whether it must not appear that the debts were proved before commissioners.
One question, however, was made, with respect to the debt of Ross, as he had taken a new note, since the assignment, upon which the jury were certainly properly instructed, that such note did not extinguish the original debt.
The defendants also objected, that as it appeared, by the deed of assignment, that it purported to be executed by Isaac and Thomas Mix of New-Iiaven, and Isaac Mix,)r.,oI New-York, in connexion with proof that Isaac Mix, jr., had always resided in New-York, and the bond counted upon a deed, executed by Isaac Mix & Sons, of New-Iiaven, the variance was fatal. We see nothing here in the nature of a variance. The question rather is, whether the persons described in the bond and the assignment are the same, or whether they are different persons. The firm might be doing business in New-Raven, and thus justify their being described as of New-Raven ; or Isaac Mix, jr., since the assignment and execution of the bond, might have removed to New-Iiaven. We think, therefore, this objection can no more avail in this shape, than upon the pleadings.
But it is claimed, that evidence should not have been admitted to prove damages incurred upon the debts of Ross and others, because the nature and character of those debts are not sufficiently set out, by the plaintiff, in his replication ; and it is said, that in Isaacs v. Stevens, it was decided, that the debts must be set out with the particularity that they must have been, had a suit been brought directly upon them. In that case, it was decided, that the plaintiff' must, to a plea of
It is, then, the opinion of a majority of the court, that there
Dissenting Opinion
dissented on two points. He held, 1. That the assignment was void, as being too general in its description of the personal property attempted to be assigned by it; and that it fell within the case of Drakeley v. Deforest, 3 Conn. Rep. 273.
2. That under the pleadings in this case, no evidence was admissible to prove the debts of Ross and Punderford, because such debts are not set forth with sufficient certainty in the replication ; — that the case of Isaacs v. Stevens, 13 Conn. Rep. 499., is in point, and a controuling authority on this question.
The plaintiff in this case, for the purpose of proving the execution and delivery of the deed of assignment from Isaac Mix & Sons, offered in evidence, in connexion with the bond to the judge of probate, a copy of the probate records, where, as the plaintiff claimed, the deed had been lodged for record, and recorded. The defendants objected to the admission of this copy, on the ground that the original should be produced, or its non-production accounted for, by proof of its loss, or of its being in the defendants’ hands; in which last case, the plaintiff’ should give notice to the defendants to produce it. This objection appears to me to have been well taken. The rule is believed to be universal, which requires the best evidence, and excludes all secondary, until some ground is laid for its admissibility, by showing that the better evidence cannot be had. But here the plaintiff was allowed to prove the execution and delivery of a deed, not by its production, and proof of its execution, but by a certified copy from the probate records, and without any effort, or show of effort, to produce the original. If this can be done, it would seem that a copy from the town records would, in all cases, be evidence of the execution and delivery of the deeds recorded there.
I know it has been contended, that as this deed was given, and recorded, under the act of 1828 regarding the assignments of insolvent debtors, that act justifies us in considering
The case is unlike the proof and recording of a will in the court, of probate. The provision in the statute relating to wills, is entirely different; it is as follows : “ It shall be the duty of the executor or executors of any last will and testament of any person deceased, to cause such will to be proved and recorded in the office of the court of probate.” Here a judicial act is required before recording — the will must be proved. If the legislature had intended, that a deed should be first proved in the court of probate before recording, they would have said so, as distinctly as in the case of wills; and if they have not, I do not feel at liberty to supply an important provision, which they have seen fit to omit.
It is claimed, however, that these defendants have admitted the execution and delivery of the deed, in the bond which they have given ; and that this dispenses with the necessity of producing or proving it. But no admission, unless made with a view to the trial, can dispense with this proof. And this rulq, is so rigourously adhered to, that an acknowledgment, or an admission, in an answer in chancery, will not dispense with it. It is a rule applicable to every written instrument, which is attested by subscribing witnesses, when offered in evidence, either against the party making it, or a third person. 1 Sw. Dig. 757. Call v. Dunning, 4 East. 53. 1 Phil. Ev. 465.
And though this rule was relaxed in the case of Hall v. Phelps, 2 Johns. Pep. 451., in the case of the subscribing witness to a note ; yet, it is believed, that the rule established by that case, has never been extended beyond cases of negotiable paper ; and with respect to sealed instruments, the rule requiring the subscribing witnesses to be called, has been steadily adhered to. Fox v. Reil, 3 Johns. Rep. 477. Henry v. Bishop, 2 Wend. 575.
Nor are the defendants estopped, by any thing contained in the bond, from insisting on the proof demanded. For, assuming that the bond has admitted the execution and delivery of the deed in question; still, if the plaintiff intended to rely on that as an estoppel, he should have pleaded it. But by taking issue on the fact, whether there was any deed of assignment or not, he has waived the estoppel, and must
The rule is correctly given, by Judge Swift, in his Digest, p. 622., that “ when the matter to which the estoppel applies, is distinctly averred, or claimed, by one party, and the other, instead of pleading the estoppel, as he may in that case, takes issue on the fact, he waives the estoppel.” And this rule was recognized, by this court, in the case of Shelton v. Alcox, 11 Conn. Rep. 250.
Can it be said, that the plaintiff’ had no opportunity to reply to the defendants’ plea, denying the execution and delivery of this deed, by setting out the bond by way of estoppel? In Shelton v. Alcox, the Chief Justice says: “If he (the plaintiff) had set out the award, and demanded they should be estopped by it, it is apparent it would not have answered the plea; because an award that Alcox had no title in June, 1830, is no answer to a plea that he had title at the time of the plea pleaded.” tie, therefore, correctly concludes : “ It is not very easy to see, then, how the plaintiff, in his replication, could have had advantage of the estoppel.” But if the plaintiff is right in this case, in supposing that the deed is recited in this bond, would it not be a conclusive answer, by way of estop-pel, to the plea denying the execution and delivery of it X If so, and it seems to me to be so, and if this court was right in Shelton v. Alcox, when they say, “ the rule is well established, that a party neglecting to plead an estoppel, cannot take advantage of it,” then it would seem to follow, that the plaintiff, having taken issue on the execution and delivery of this deed, must prove it, before he can call upon the defendants to account for the property claimed to have been assigned by it; or if he relies on the estoppel, he must plead it.
I think, too, the objection was well taken, that, even admitting the certified copy to be proof of the execution and delivery of the original, it was further necessary to show the power, under which Isaac Mix, sen., of New-Haven, executed the instrument in the name and for Isaac Mix, jr., of New-York. That would have been necessary, had the original been produced and proved ; and surely the copy cannot take a higher place in the scale of evidence than the original itself. This objection was also overruled ; but the motion finds, in connexion with it, certain facts, which seem to have been
There is another question in this case, which I was at first inclined to think correctly settled, by the judge at the circuit; as it seemed to come within the principle of our decision, at the present term, in the case of Rowland v. Isaacs, in Fair-field county, (15 Conn. Rep. 115.) But a more careful examination of that case has convinced me, that it is clearly distinguishable from this ; and if so, it would seem that the principle recognized by this court, in the case of Isaacs v. Stevens, 13 Conn. Rep. 499., not only required of the plaintiff a more particular and perfect allegation, in his replication, of the non-payment of the Punderford and Ross debts ; but, as the other breaches were well assigned, and the defendants could not, therefore, successfully demur, or move in arrest, the objection they interposed to the evidence offered to prove those debts, ought to have been sustained.
Until it is so decided, by this court, I cannot recognize the doctrine, that on every technical breach of a probate bond, we are to allow the jury to pass upon all the unliquidated
I do not understand the plaintiff as claiming, that the nonpayment of the Punderford and Ross debts, is so alleged in the replication, and their nature and character so set forth, that had no other breach of the condition of the bond been assigned, he could recover upon this alone. But he insists, that the evidence on that point, did not come in to prove a breach, but only as a rule of damages.
Now, it is difficult for me to see, how there can be a rule of damages for that condition of a bond, which has not been broken. The defendants have pleaded performance generally of the condition of the bond. The plaintiff replied, setting out the breaches on which he intended to insist. And an insufficient and imperfect assignment of a breach, is the same as if none had been made, or attempted.
Suppose, then, an administrator neglects, wdthin the two months allowed by law, to return an inventory; such negligence is by no means an uncommon occurrence ; can any, and if any, every, creditor, or person who claims to be a creditor, sue the bond, and, without assigning the non-payment of his debt, as a breach of the condition, nevertheless prove his debt, and recover, as a rule of damages, under the assignment of not having made an inventory within the time ? To allow this, would seem to me to be introducing a practice, as illy calculated to do justice between the parties, as it would be embarrassing to heirs.
But have we sanctioned such a practice, by our decision of the case of Rowland v. Isaacs ? I think we have not. In that case, the defendant, instead of pleading, as he might have done, performance generally of the condition of the bond, set up a special justification for having broken that part of it, which required him to settle the estate, and pay over to the heirs their shares of it, viz. that he had expended the whole estate remaining after the payment of the debts and charges, in the necessary maintenance and education of the two minor children, who were the only heirs, and, of course, the only persons interested in the distributive shares, to recover which the suit was brought. This justification was traversed. By
But no such question arises in this case. Here, the defendant admits nothing by his plea. He says generally, that he has performed the condition of his bond. This has thrown upon the plaintiff the burden of specifying the breaches on which he intends to insist; and if there are any that he has not seen fit to specify, he waives them ; the general principle being, that a party who puts himself on one issue, admits all the rest. Corsbie v. Oliver, 1 Stark. Ca. 76.
The breaches should also be assigned with the same certainty that is requisite in a declaration. This the plaintiff has attempted to do. He has assigned several breaches; and among them, is this, that the defendants have not paid either Punderford or Ross; who, the plaintiff says, are creditors of Isaac Mix & Sons. But the nature and character of these debts are not given. And, in the language of this court, in Isaacs v. Stevens, upon a similar replication, where the nonpayment of a debt was assigned in nearly the same language as in this case: “ I do not see how this replication cán be delivered from this infirmity. Nothing more is alleged in regard to these debts, than their amount.”
I, therefore, come to the conclusion, that the superior court erred in admitting this testimony, as well as in the ruling upon the other points which I have examined; and upon these grounds alone, I think a new trial ought to be had.
Motion in arrest overruled;
New trial not to be granted.
