Dibble v. Morris

26 Conn. 416 | Conn. | 1857

Sanford, .1.

The first question presented on this motion regards the admissibility of the copies of record offered in evidence by the plaintiff. The objection was, as the judge remarked, “ a technical one,” and came “ too late to be received, with much favor,” and if the plaintiff had not agreed to the reading of the copies subject to future objection, the judge would have been justified in deciding that the objection came too late to be listened to at all, or in postponing the trial to Enable the plaintiff to procure the due authentication of the copies. But no motion for a postponement of the trial was made, the plaintiff choosing rather to stand upon his claim that the copies were admissible as they were ; so that we have only to decide whether they were authenticated as the law requires, and legally admissible in evidence or not.

The statute, provides that each court of probate shall have a clerk appointed by such court and sworn to that office; (Rev. Stat., tit. 5, § 54.)—that the clerk shall make and have the custody of the records of the court, and be the keeper of its seal; (Rev. Stat., tit. 5, § 85.)—that the record may be . proved by a copy certified under the hand of the clerk and the seal of his office, and in case of the absence or inability of the clerk, by a copy examined and sworn to by credible witnesses; and that for a false certificate the clerk shall be punishable as for perjury. (Rev. Stat., tit. 1, §134.)

Thus by strong implication is evinced the intention of the legislature to confine the power of making a copy proof of the existence and contents of a record by a mere certificate, to an officer specially appointed for that purpose, and whose fidelity is secured by his official oath and the penal sanction provided for its violation. It may be added that it seems eminently fit and proper, that the officer who alone is authorized to make and is bound to keep the record, should be the only person authorized by his signature and seal alone, to prove the existence of such record and its contents.

In this case, we think the evidence detailed in the motion shows that that there was a duly appointed and qualified clerk, and no reason is shown why the copies introduced were not authenticated by his certificate. An appointment to such an office once made continues the appointee in office until he resigns, or is removed, or superseded by the appointment of another person to the same place. The clerk is the clerk of the court, not of the particular judge by whom he is appointed. The same court continues in existence always,though the judge maybe changed from year to year, and upon the coming in of a new judge, there need be neither a new appointment of the clerk, nor a new administration to him of his official oath.

It is claimed to be the settled practice in our courts, to admit copies of probate records upon certificate of the judge alone, whether there is any clerk of the court or riot, and if there is, without shewing any reason for the absence of his certificate. But we are not informed that such practice has ever been sanctioned by a direct adjudication of this court, and, as it is at variance with principle and unauthorized by statute, it ought to be corrected.

Nor were these copies admissible as examined copies, for no legal evidence of their examination was produced. By the “credible witnesses” mentioned in the statute, and authorized in certain cases to verify copies of record, are doubtless intended witnesses giving testimony under the sanction of the witnesses’ oath, and who may be cross-examined as to the existence of the record and the accuracy of the copy.

The defendant requested the court to charge the jury that the plaintiff’s omission to inventory the household furniture, and to affix to the growing corn and potatoes inventoried an appraised value, rendered the assignment in contemplation of law fraudulent and void. That such omission unexplained affords some foundation for an inference that the assignment is only colorable and is not intended to be followed up, may be admitted, but we think there is no authority for holding that it makes the assignment “in contemplation of law fraudulent and void.” It is a badge or indication of fraud, but not a conclusive one. And the jury having, under the charge of the court, found that the omission in this case was not attributable lo willful neglect or gross carelessness, but to inadvertence or honest mistake, we think the inference was repelled.

The charge of the judge in regard to the assignor’s possession of the property after the assignment is sanctioned by the decisions of this court in Osborn v. Tuller, 14 Conn., 529, Strong v. Carrier, 17 id., 319, and Peck v. Whiting, 21 id., 206, and. is liable to no just exception.

In regard to the rule of damages, the judge charged the jury, that “ in addition to the value of the property taken by the defendant and interest thereon, it would be proper for them to take into consideration the'expenses necessarily attendant upon prosecuting his claim in court.” The record shows that a considerable sum beyond the value of the property as laid in the declaration, was awarded to the plaintiff by the verdict, which it is fair to presume was allowed,.under the charge, for the purpose of remunerating the plaintiff for his expenses in the prosecution of the suit. We think that such allowance in this case ought not to have been made, and that the- charge on this point needs qualification. By a series of decisions in this state, it is settled that in actions sounding in tort, where the injury was inflicted wantonly or maliciously, the jury are at liberty to give, and it is proper for them to give, damages beyond a mere compensation for the actual loss or injury, and exemplary or vindictive in proportion to the degree of malice or wantonness evinced by the defendant, and to increase the amount by taking into consideration the plaintiff’s expenses in the litigation. Linsley v. Bushnell, 15 Conn., 236. Huntley v. Bacon, id., 267. Beecher v. Derby Bridge & Ferry Co., 24 id., 491. We do not intend to unsettle the law as established by these decisions. But when the act which produced the injury does not appear to have been wanton or malicious, and when the parties come before the court in the character of bona fide claimants of property, honestly contending for their rights, vindictive or exemplary damages ought not to be allowed. See Beecher v. Derby Bridge & Ferry Co., supra. In this case the defendant was a creditor of the assignor, who seems to have been honestly endeavoring to secure his debt by the attachment of property which had been the property of his debtor, and was in fact in his hands at the time of the attachrhent under circumstances well calculated to excite suspicion of the bona fides of the assignment, and sufficient in our judgment to exonerate the defendant from the imputation of malice or wantonness in attaching it. Had the jury been instructed that if they found the attachment wanton or malicious, then it would be proper for them to give the plaintiff the amount of his expenses in the litigation in addition to the value of the property and interest thereon, the charge would have been unexceptionable, but without that qualification it was wrong.

Upon the first point, and upon the last, the court erred, and a new trial is advised.

In this opinion the other judges concurred.

New trial advised.