Coleman v. Wolcott

1 Conn. 285 | Conn. | 1814

Brainard, J.

As to the first point. No principle of law requires a man to do what is not presumed to be in his power, nor to state what he is not presumed to know. These assignments were not under the controul of the plaintiff. They were the property of Gilbert, and had been, or were presumed to have been, from delivery, in his possession. Coleman, at the time of framing his declaration, could not know the state and situation of these instruments. He had a right to presume that they were in existence in the hands of Gilbert ; and that upon the trial, through the hands and medium of Gilbert as a witness, he could have the benefit of them.

Whenever an action is brought directly upon a written instrument, as upon a bond or other specialty, in England, the plaintiff is bound in his declaration to lay a profert of it, and to produce it on oyer, if required, otherwise on trial, unless he states as an excuse in his declaration, and, as an essential and substantive fact, its loss or destruction. This of course is a traversable fact, which the plaintiff must first evince, and then prove the contents. The same principles are applicable in this state, with the exception that the plaintiff here is not bound to lay a profert ; but whether he does or does not, he is bound when oyer is prayed, and also on the trial, to produce his writing, his specialty, unless in his declaration, he states, and afterwards proves, its loss or destruction. In other words, the difference is merely this : with us, a profert is not necessarily to be laid in form, but necessarily exists by implication, because whether laid or not the defendant is entitled to the same benefit of oyer, and the same production on trial.

In every such case the instrument is not only the sine qua non of recovery, but is the very gist of the action, and is within the power or knowledge of the plaintiff. He either knows that he has it in his possession and under his controul as his property, or that it is out of his controul or possession by loss or destruction. There are indeed cases where a deed is the gist of the action, and as such necessary to be set forth and pleaded; and yet oyer is not demandable. Such are deeds of conveyances to uses, and other cases, where the claims are by operation of law.

But an instrument in writing belonging to a third person totally disinterested, although it may indeed be a sine qua non as to recovery, can never be the gist of the action, can never be the thing on which the action is brought; a profert of it can never be required ; of course, no excuse for the non-production need be made in the declaration. The plaintiff states the instrument in the hands of the party to whom it belongs, and in whose possession it is presumed to be, and for the production of which he depends on the voluntary courtesy of the owner and holder, or on the power and energy of the court.

The court can compel such holder or owner of a written instrument, if necessary for the furtherance of justice, and if within their jurisdiction, to produce it in court on trial as evidence of a fact. But the loss or destruction of such an instrument may, without averment, be first proved, and then its contents given in evidence.

These assignments are set forth in the declaration, as Lord Kenyon expresses it, by way of inducement, in which case, he says, a profert is never necessary. Banfill v. Leigh & al. 8 Term Rep. 571, 573. And in the case of Raynall v. Long and others, Carthew 315. the court say, the plaintiff shall not be compelled to produce the deed, first, because it does not belong to him ; secondly, because he hath no remedy at law to get possession of it ; thirdly, because he is in merely by operation of law. This was a case in favour of a cestui que trust. To this point, on the argument, 1 Chitty 349. was cited, I thought, to good effect.

As to the second point. The testimony of John Taylor and the deposition of Elizur Wolcott form the basis on which it is contended that the transcript ought to have been admitted. This was intended to shew, that the money advanced by Coleman had in fact been laid out according to his direction, by Wolcott, in the very lands contemplated in the bill and decree in chancery. But on examination of the materials of that basis, I do not see a connexion between them and the case.

Taylor says, that Coleman gave as a reason for his going lo the southward the importance of his seeing the money laid out ; and that on his return, he told him he might thank him that he had any land by the Wolcott contract. The inference from this, perhaps, might fairly be, that Coleman concluded that some lands had been obtained, but what, or where, is totally uncertain. There is no necessary connexion between any such lands and the lands in dispute between Swan and others, and Smyth and others.

With respect to the deposition of Elizur Wolcott there is, very little in it except what he received from the defendant himself. He states of his own knowledge, that Coleman went to Virginia with Alexander Wolcott and himself ; that Coleman’s business regarded Virginia lands ; that Coleman had consultations with Wolcott, and advised him to proceed, &c. But the deposition does not identify any lands, nor establish any essential fact. It has no relevancy to the contract between Coleman and Wolcott. And although on the circuit I was for the admission of the transcript ; yet on further consideration, I am convinced that my opinion was then incorrect, and that the record was properly rejected.

As to the third point. The court in the charge direct the jury, that to subject the defendant, they must find the execution, loss and contents of the covenant and of the assignments. These being found, the plaintiff’s rights and interests which are liable to be affected, are shewn. They then direct the jury, that they must also find, that at the time of taking the discharge, Taylor was insolvent, and that the defendant knew it ; and also, that he had knowledge of the assignments. These being found, the rights of the plaintiff are established. They are then brought home to the knowledge of the defendant, when by using the discharge, which it is admitted he did, he did an act necessarily and inevitably injurious to the rights of the plaintiff. It could have no other possible effect. There could be no room for further inquiry.

When the effect of an act understandingly done is necessarily injurious to the rights of another, the quo animo is not a matter of fact ; it is settled, and becomes an inference of law.

I would not, therefore, on either point advise a new trial.

In this opinion the other Judges concurred, Ingersoll, J. not acting.

New trial not to be granted.