| Conn. | Jul 15, 1833
A new trial is moved, in this case, on two grounds : 1. that evidence was improperly admitted; and 2. that the rule of damages laid down in the charge is incorrect.
1. It is contended, that the declarations of Bill, which were drawn from the witness Minard, upon his cross-examination, should not have been received in evidence.
But it is objected further, that the facts, if relevant, were not proved through the right medium : that these were the declarations of the officer, for whose neglect a recovery is sought, and who is the real party to the action.
These declarations, clearly, could not have been proved, unless the plaintiff had laid the foundation for their introduction, by his own course of examination. This, I think, he had done. For the purpose of proving the neglect, he sought to avail himself of the declarations of Bill, as the admissions of the party. This he had an undoubted right to do: and the only claim on the part of the defence, was, that the whole conversation, at that time, should go to the jury. This claim, I suppose, not only to be reasonable, but in conformity to a well established rule of evidence. For there certainly is no principle better settled, than that where the confessions of a party are made use of against him, the whole must be taken together. If part of a statement be admitted, the whole must be admitted. 1 Phill. Ev. 79. Swift's Ev. 132. Carver v. Tracy, 3 Johns. Rep. 427. Fenner v. Lewis, 10 Johns. Rep. 38.
But it has been urged, that the only object of the rule, is, to obtain the full meaning of the party, and to prevent him from being misunderstood ; and that, inasmuch as the declarations of Bill, which came out upon the cross-examination of the witness, were not necessary to explain, or give a meaning to that which preceded, they were not within the rule, and therefore, not admissible.
To this objection it might be sufficient to reply, that there is no authority for thus narrowing the rule ; and that so narrowed, it would be exceedingly embarrassing in practice. On the other hand, there is neither inconvenience nor danger in admit
But this objection has been so entirely met, and answered, by a modern decision, that I may be pardoned for quoting from the opinion of all the judges of England, as delivered by the late lord Tenderden : “ The conversations of a party to the suit, relative to the subject matter of the suit, are, in themselves, evidence against him in the suit ; and, if a counsel chooses to ask a witness any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said, by his client, in the same conversation ; not only so much as may explain or qualify the matter introduced upon the previous examination, but, even matter not properly connected with the part introduced upon the previous examination, provided only, that it relate to the subject matter of the suit ; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion.” The Queen’s case, 2 B. & B. 298. 3 Stark. Ev. 1751.
2. The only remaining question arises upon the charge, was the rule of damages, given to the jury, correct ?
The basis of the charge, is, that the defendant is liable only for the damages, which the plaintiff has sustained, by reason of the neglect of the officer. The correctness of the principle here laid down, will hardly be questioned, when it is recollected, that it is substantially the same as that adopted by the statute ; [Stat. p. 416.) and when it is further recollected, that the action is case, and for a tort; that the plaintiff’s claim sounds in damages merely; and damages sustained by reason of the wrongful act or negligence of another.
These damages, it is, peculiarly, the duty of the jury to assess ; and in so doing, they are not limited to any precise sum. They may give even more than the plaintiff’s original debt. Where that debt has been lost, by the wilful misconduct or negligence of the officer, they may add to it the costs and charges of a second suit. And as the jury may give more than the debt, so they may give less. And if it should be found by them, that the failure of the officer to return the writ, was
It can only be necessary to add, that the principle of the charge, was directly asserted, by this Court, on a former hearing of this case. 9 Conn. Rep. 379.
But it is contended, that the charge goes further ; and beyond the principle here established.
The jury were, indeed, told, that if they should find, that the plaintiff was notified of the failure of his attachment, and that the whole, or any part of the property attached, was then in the same situation, as when the attachment was levied, and might then have been attached, and secured to the plaintiff, by the use of ordinary diligence, the defendant was not hable for the value of such property.
The charge proceeds upon the ground, that upon the facts here stated, the property, if lost to the plaintiff, was lost, by his own neglect, and not by reason of the neglect of the officer : and it seems difficult to resist this conclusion, unless the principle is to be adopted, that in every case where the officer is in default, the creditor is obliged to no further diligence ; but may fold his hands, and call upon the sheriff for the payment of his debt.
Now, the sheriff stands on no other or different ground, in this respect, than an attorney or any other agent. An attorney is liable for all the damages sustained, by reason of his neglect; and so is the sheriff; — and beyond this neither the one, nor the other, is liable. — Suppose, then, an attorney be employed to collect a debt. He misconceives his action, or commits some other mistake, in consequence of which the plaintiff is turned round. May he, therefore, neglect, or obstinately refuse, to renew proceedings ? And if in consequence of such neglect or refusal, the debt is eventually lost, may he enforce payment of the attorney ? And can it be pretended, that in an action brought against the attorney for neglect, the amount of the debt would furnish the rule, and the only rule of damages ? Such a conclusion does violence to all our ideas of justice, as well as
But it has been urged, that however the case might have been, had the property, when the notice was given, remained in the same situation as when it was first attached ; yet as a part of it had been removed, under Goddard's attachment, the plaintiff was under no obligation to proceed against the residue j but might hold the sheriff responsible for the whole.
It surely cannot vary the principle, that a part of the property had been abstracted. It is enough that there was property, which could have been reached and secured, by an attachment. And whether it consisted in the whole, or in part, or not at all, of that formerly attached, can make no possible difference.— The plaintiff refused to procure an attachment to be issued for his own benefit, or to permit the officer to do so, for his security; and all that is insisted upon in the charge, is, that the plaintiff shall not visit the consequences of his own obstinacy upon an honest, but mistaken officer.
The jury were directed to give damages commensurate with the loss sustained, by the officer’s neglect. For aught that appears, they have done so ; and neither the principles of justice, nor any rule of law, demands of us, that we should interfere with their verdict.
New trial not to be granted.