Volume 2 — Day's Connecticut Reports

In the Coin! below, TlHS was an action of debt on bond, dated September 16th, 1799, for two hundred dollars. There was a plea in bar, reciting the bond, the condition of which was, that one Benjamin (Negro) should appear before the Superior Court, and answer to a complaint made against him for burglary.

In the Court below, On an appeal from Probate, the reasons assigned were, 1. 'That the pretended will of Keziah Barber contains a devise of real estate, and was not subscribed by three witnesses signing in the presence of the testator. 2.

In the Court below, HP JL HIS was an action of account, demanding, “ That to “ the plaintiff the defendants render their reasonable ac- “ count, during the time that they, or either of them, joint- “ ly, or severally, have been the plaintiff’s bailiffs and recei- ■“ vers,” The declaration stated, that the plaintiff was the son, and the defendant Sarah, the wife, of Nehemiah Dodge.

<p>Assignees of a bankrupt, under the late bankrupt law of the U .States, may maintain ejectment.</p> <p>The validity of a commission of bankruptcy cannot be impeached before the common law courts.</p> <p>By the term “ debtor,” in the 56th section .ismeant, any person who owes a «« <⅜⅜” or “ duty,” or whom a “demand” ex-</p>

<p>In an action brought by A. against B. on a written agreement of B. to pay to A. such sum as should be tumid due to A. fiom C., at the da ■ c of die iWit'ir, an aw ai t. oe ■ tween A..,n.l the a-sjgnees oí C. ill '...v-í i.e become bank; apt,) finding a balance due from C.to A., at a different time, is not admissible evidence.</p>

In the Court below, HP JL HIS wqs an action of account, declaring, that the plaintiff had delivered to the defendant, for collection, a promissory note, payable to Justin Worthington, and assigned to the plaintiff; and that the defendant had collected the money, but had rendered no account. On the issue of never bailiff and receiver, the jury found for the plaintiff; and the Court rendered judgment, quod comfiulet.

In the Court below, rl 1 I HIS was an action qui (am, on the statute, (a) to recover the penalty for receiving a conveyance of a moiety of a mill seat, from James Downey and, his wife, while they and the defendant were out of possession, and the plaintiff was in, holding adversely. On trial to the jury, on the general issue, the plaintiff offered in evidence the declarations of Downey and his wife, to prove the adverse possession of the plaintiff.

<p>,No action lies against the vendor of real estate for false and fraudulent representa-tionsvespect-ing its quality and situation.</p>

<p>A "written p^"notCbe enlarged, or ^</p>

In the Court below, T. HIS was a petition in chancery to redeem mortgaged premises. The following facts were stated in the petition, and found by the Court: Nathaniel Scribner, seised in fee of two pieces of real estate, one lying in Norwalk, the other in Fairfield, mortgaged them to Jerusha Graham, on the 4th of January, 1797, by distinct deeds, each conditioned for the payment of the whole mortgage money.

In tlie Court below, rp 1 HIS was an appeal from a decree of probate, approving the will of Abigail Mary Brainerd. It contained a devise of real estate to her husband ; and the only exception relied • upon was, that she was a feme-covert, when she executed it. The Superior Court affirmed the decree. The estate in question is claimed, by one party, as devi-see, and by the other, as heir at law.

In the Court below, rap I HIS was a petition against the County of Middlesex, to recover damages for the escape of one Jonathan Keeney, by reason of the insufficiency of the gaol.

In the Court below, TTHIS was an action on the case, founded on a fraudulent combination. The declaration stated, that on the 20th of March, 1803, the defendants, then all residing in this state, combined and conspired to defraud such merchants and traders in Boston, as they might be able to deceive, by their arts and practices. The plaintiff was, at that time, a Boston merchant.

In the Court below, THIS was an action of trcspass for the ship Ocean.

<p>A general order of sale» by a court of probate, extends to all the property of the deceased, known to the court, at the time of making such order, though not contained in theinventory on record.</p>

<p>In the Court below,</p> <p>rn . JL tilS was ári actibh of trover, originally brought before the City court of the City of New-London, for the schooner Urania, and her cargo. The action waS commenced bn the 25th of August, 1804. The plaintiff and defendant were described as of the City of New-London. The ownership and possession of the vessel and cargo, and the losing, by the plaintiff, and the subsequent finding and conversion, by the defendant, were alleged to have beeh * in said City, on the 3d of said August.”</p> <p>The general issue waá pleaded, aticl clóáfed tó the jury. A verdict was found for the plaintiff.</p> <p>The defendant moved in arrest of judgment for the insuL ficiency of the declaration. This motion did hot prevail.</p> <p>Oh the trial, the plaintiff claimed the vessel by a charter-party from '¿ebulon P. Burnham, executed on the 19 th of July, 1804, for a voyage to (.life West-Indies. Burnham was claimed to be the owner of the vessel, having built her at Norwich, and obtained a register for her in his own name, and not having made any transfer of her. The plaintiff claimed to have purchased the cargo, “ with his own money and credit,” except a quantity of flour, which, he claimed, had been furnished by Gilbert Robertson & Co. and sent to him to be transported to Barbadoes, and delivered to George Cruden, for the use of the contractor for supplying his Bvi-tunic Majesty’s navy. The plaintiff also claimed, that the vessel and cargo were, when taken, in his possession, lying at his wharf in Rtw-London ; and that the captain on board was captain under the plaintiff, having been appointed by him, and having given him a bill of lading of the cargo.</p> <p>The defendant, ⅛ his defence, admitted the taking of the vessel and cargo, but claimed that they were the property of Cruden, and that he had taken them, as a deputy sheriff, by an attachment against Cruden, in favour of Jesse Hopkins. To establish the fact, that the vessel was Cruden’s property, the defendant claimed, that she was built by Burnham, as Cruden’s agent, out of funds furnished by Joseph- Howland & Co. for Cruden, at Cruden’s request, and on Cruden’s credit ; that she was navigated by Burnham to the Wesi-Indies, and there left under the controul of Cruden ¡ that Cruden put James L. Dill on board of her, as his agent and supercargo ; that under the controul of Dill, she arrived in New-York in July, 1804, with a cargo of salt, the property of Cru-den, consigned by him to Robertson & Co. with orders to them to purchase for him a return cargo of cattle and provisions ; that,the vessel was by them sent to New-London to the plaintiff, with orders for a cargo of bullocks and provisions ; that the salt was left with the plaintiff for sale ; and that the cargo in controversy was purchased for Cruden, and for him was put on board of the vessel, by the plaintiff, and received by Dill.</p> <p>To prove the property to be in Cruden, as claimed by the defendant, sundry depositions and witnesses were offered. Iu the deposition of Henry Eldridgc, e&nnected with other evidence which was admitted to be relevant and proper, were the following questions and answers :</p> <p>“ Q. Did Capt. Burnham, when he left the vessel, give “ you any orders respecting said vessel Í</p> <p>“ A. He gave me orders, that, in case the vessel did not “ return immediately home, to give Mr. Cruden a bill of sale “ of the vessel, and bring home the register.</p> <p>“ Q. Did Capt. Burnham give you a power of attorney to “ execute a bill of sale to Mr. Cruden ?</p> <p>“ A. He gave me written orders as above.</p> <p>£‘ Q. Were you not to receive security or payment for the “ vessel?</p> <p>“ A. I was not.</p> <p>“ Q. At the same time, [when Dill first came on board of “ the vessel] did you not understand by certain hints and “ innuendoes from Mr. Cruden,, intelligible to you, that you <! were to follow Mr. Dill's directions in every thing respect- “ ing said voyage ?</p> <p>“A. Yes.</p> <p>“ Q, Did you ever understand by Mr. Cruden and Mr. t! Dill, that the vessel and cargo were kept under cover of “ American colours and papers, to evade French captures ?</p> <p>il A. I so understood.</p> <p>i( Q. Did you understand by Mr. Cruden, or Mr. Dill, that “ the vessel was to take in an inboard and deck cargo, and il return to Barbadoes ?</p> <p>“ A. I understood so from both, in conversation with si them.”</p> <p>The deposition of Benjamin Holland was offered to prove certain written instructions, given by Burnham to Bldridge, respecting the vessel. These instructions had been read by Eldndge to the deponent, but were not produced.</p> <p>The deposition of Chauncey Barnard was offered to prove certain declarations of Cruden, in conversation with the deponent, respecting the vessel.</p> <p>Roswell Roath was offered as a witness to prove what Cruden had said to the deponent, relative to a contract between Burnham and Cruden, to build a schooner lor the latter.</p> <p>After having proved, that Dill was put on board of the vessel, at Barbadoes, by Cruden, as supercargo; that as such he sailed, in June, 1804, and had the charge, and direction of the vessel from Barbadoes to St. Christophers, to take in a cargo of salt, by the orders and for the benefit of Cruden, and from St. Christophers to New-York, whither the vessel was ordered by Cruden, for the purpose of transporting the salt, and of taking a return cargo ; and that there were four negroes put on board by Cruden, as seamen, who arrived with the vessel at New-York, in July, 1804, and were soon afterwards taken, by the direction, and under the care of Dill, as supercargo, to New-London ; the defendant offered in evidence an advertisement, subscribed by Dill, for the ne-groes, who had escaped from him, describing them as mariners on board the schoorter Urania, and slaves, and alleging that they had departed without licence.</p> <p>To the admission of the evidence recited and stated the plaintiff objected. The Court decided, that the same was inadmissible ; and the defendant filed his bill of exceptions.</p> <p>The errors assigned were,</p> <p>1. That the Court adjudged the motion in arrest insufficient.</p> <p>2. That the evidence stated in the bill of exceptions was not permitted to be given to the jury.</p> <p>1. This was an action brought originally before a court ©f limited jurisdiction. By its constitution, it has cognizance only, where the cause of action arises, and one or both of the parties live, within the city, (a) But it does not appear, by the declaration, that either plaintiff or defendant lived in the city at the time of the conversion. The description of the parties in the writ relates merely to the time of bringing the action. But to entitle the City Court to jurisdiction, it must appear, that the plaintiff or defendant was actually residing within the city, when the cause of action arose. This was decided directly in JBuel v. Fabrir.k, (b) It is an universal rule, that nothing shall be intended to be within the jurisdiction, of an inferiour court, but that which is expressly alleged. In Waldock v. Coofier, (c) which was as-sumfwit for goods sold and delivered, brought in the borough court of Aylesbury, it was held, that the declaration was ill, because it did not allege, that the goods were sold and delivered within the jurisdiction, but only that the defendant was indebted and promised within the jurisdiction. The same point was decided in Trevor v. Wall. (d)</p> <p>2. The Superior Court erred in rejecting Eldridge’s testimony respecting the written orders.</p> <p>That testimony is objected to, on the general ground, that it is not the best, which the nature of the case admits of. The witness, being in possession of the writing, cannot testify as to its contents, but must produce the writing itself.</p> <p>Let this fundamental maxim of the law be thoroughly examined, and it will not be found to support the objection. What*is its extent ? It is always limited to the particular circumstances of the case. When from the particular circumstances of the case, no better evidence can bp brought, though better may be imagined, and may actually exist, the rule does not require its exclusion. (e)</p> <p>The reason of the rule, that the withholding of the best evidence furnishes a presumption, that, if produced, it would operate against the party, (f) may serve to shew how far the rule is to be carried. Where it is not in the power of the party to produce the best evidence, this reason does not exist.</p> <p>The rule, then, has this qualification, that it requires such evidence only as is in the party’s possession or power; and the evidence which it excludes, is such only as ex natura rei supposes a still greater evidence behind, in the party’s possession or power. In most instances where the rule is laid down in our books, such a qualification is subjoined in express terms. (g)</p> <p>If any thing further be necessary to shew the extent of this rule, it may be found from the law respecting making preferí. In general, a man who claims by deed, ought to make a profert of it, in his declaration, or plea, if he be party or privy to it. (h) But where the party has not the deed in his possession, or cannot controul it, he is never bound to shew it. (i)</p> <p>The cases are numerous, in which it has been held, that when a deed, or other writing, is lost, or in the hands of the opposite party, and withheld, after notice, its contents may be proved, (j)</p> <p>These remarks apply to papers, which belong, in some sense, to the party. But what is the law respecting papers, which are in the possession of, or belong to, third persons ?</p> <p>The only power, which the law furnishes to a party, to obtain papers belonging to him, from a third person, is, either by a rule of court, or a subpana duces tecum. (k) And this power seems not to be effectual, even in England, in alt cases.</p> <p>But no authority lias decided, nor has any judge or jurist intimated, that a witness can be compelled to produce his own papers. In Robertson v. French, (l) which was an action on a policy, the witness who testified to the plaintiff’s title to the ship, had disposed of it to the plaintiff, by virtue of a power in writing. No objection was made to his testifying this fact, without producing the power. Had 1⅛⅛ point been settled against us, it is hardly to be supposed, that so prominent an objection would have escaped such counsel as Gibbs, Adam, and Marryatt.</p> <p>This point, however, has been expressly decided in our favour in two cases, one in New-York, and one in England. The former was an action of trover for goods and chattels. The witness made a copy from a paper, which contained air account of the articles. He was asked, what were the contents of that paper ? It was objected, that the paper ought to be produced, or proved to be lost. That objection was over-ruled ; and on writ of error, the judgment was affirmed. (m) The other case was before Lord Kenyon at nisi jirius. A witness was called to produce a power of attorney, having been served with a subfiena duces tecum. On his neglecting to produce it pursuant to the subfiamai Lord Kenyon said, he could not be compelled to produce it. His Lordship added, if he could, every man would be obliged to produce every paper in his custody. It would be the ruin of millions. (n)</p> <p>Independent of authorites, it would seem strange, that a man uninterested in the suit, and to whom its event is altogether indifferent, should be forced to yield up his own papers, for the benefit of a stranger.</p> <p>If, then, there is no legal mode of compelling a witness to produce his own papers, it follows irresistibly, that evidence of their contents must be admitted.</p> <p>The deposition of Holland ought to have been admitted. He never was in possession of the paper, and never had it in his power to produce it..</p> <p>The Superior Court erred also in rejecting the deposition of Barnard, the testimony of Jioath, and the answer of El-drigde, as to the hints. Having established, as we contend, a combination between Burnham and Cruden, it was proper to prove Cruden's declarations respecting the property ; for though Cruden is not ⅜ party to the record, yet he is one of the confederacy, and as such, his declarations are admissible. The testimony of Eldridge to the conversation by hints, was proper in itself. It is immaterial in what mode a man conveys his ideas, if they are understood. Hints may be as clear and emphatical as express language. In this case, Cruden, wishing to avoid direct declarations, adopted hints as the substitute. These hints were understood by El-dridge ; and it is as proper for him to testify to their meaning as if Cruden had fully stated his meaning.</p> <p>Dili's advertisement went directly to support Eldridge, If it was proper to prove Cruden’s declarations, Dill, being proved to be Cruden’s agent, his acts and declarations, as relative to his agency, at the time he was in the execution of his power, are of course admissible.</p> <p>1. To entitle the City Court to jurisdiction, the statute requires only, that the cause of action arise, and that one or both the parties live, within the city. It does not specify the time when these requisites shall exist. As to the cause of action, it is sufficient, so far as it respects the point of jurisdiction, that it accrued at any time since the incorporation of the city, and before the commencement of the suit. The residence of the parties is evidently to be estimated at the commencement of the suit. , But, at any rate, the aver-ments of this declaration are conformable to the words of the statute. The Court surely will not give them different constructions. It may be added, that this declaration is in the usual form. It has the sanction of invariable practice.</p> <p>2. Parol evidence of the written orders to Eldridge was properly excluded. The general rule, that parol evidence of the contents of a writing is inadmissible, is not disputed. It has not been shewn, that this case comes within any of the exceptions to that rule. The writing was not proved to be lost, or destroyed ; it did not appear, that it was in the bands of the opposite party, who refused to produce it, after notice ; nor did it appear, that the person in whose hands it was, had been served with a subfuena duces tecum to produce it, and had refused to comply, (o)</p> <p>The deposition of Holland related to the contents of a writing ; and was, therefore, inadmissible, on the principle just stated.</p> <p>The declarations of Cruden were inadmissible, because he was neither a party to the record, nor the person under whom we claim. The propriety of the decision in the Court below, on this point, may be illustrated by a familiar case. A. puts a horse into the hands of B. and afterwards takes him back ; he is then attached as the property of B. for which A. brings a suit ; can the declarations of B. that the horse was his, be given in evidence against the title of A. ? Further, Cruden could not be admitted as a witness, in this case, to establish his title ; much less could his declarations, not under oath, be received.</p> <p>The declarations of Dill were still more remote. He might have been a witness, and the'party might have obtained him. (p)</p> <p>The understanding of Eldridge from hints and innuen-does, was not evidence. The opinions and constructions of a witness are, in all cases, inadmissible. Inferences from facts are more especially to be excluded, if the facts themselves are not related.</p> <p>The deposition of Barnard related only to conversations with Cruden ; and that of Roath to conversations with Cru-den, and to a memorandum in Cruden’s books, not signed by Burnham. These were clearly inadmissible.</p> <p>Dill’s advertisement was inadmissible, because it was irrelevant to the issue ; because, it was a paper not signed by a party, oi’ a witness ; and because Dill himself might have been a witness. His declarations and advertisement were, but hear-say,</p>

<p>The testator devised the use and im-provementof all his real estate to his •wife, until his son should arrive at the age of twenty-one years, she bringing him up ; and then devised to his son the ■whole of his real estate, except the use and improvement as before disposed of, to be and remain to him an estate for ever : Held, that afee, immediately on the testator’s death, vested in the son, subject to a personal trust or confidence in his mother.</p>

In the Court below, .rrv JL HIS was an action of ejectment. On trial to the jury, under the general issue, the defendant claimed title to the land in question by virtue of a convey-anee from the plaintiff to Jamah Barber, and from Barber to the defendant. The latter conveyance containing a covenanted warranty. Barber had teen vouch ed in to defend. The plaintiff claimed, that his conveyance to Barber was void, on the ground of his own insanity at the time of executing it.

In the Court below, THE declaration stated, that the plaintiff, on the 4th day of February, 1804, was legally deputed to serve a certain writ or process of attachment against Stoyel, in which Job Smith was plaintiff, demanding ¾ 800 damages, for a certain trespass alleged to have been committed by Stoyel ; that the writ was signed by Thaddeus Learned, Esq. a justice of the peace, and by him, and in his hand-writing, directed to the plaintiff, as an indifferent person ; that…

In the Court below, rri X HIS was an action on tho case for subornation of perjury. The declaration stated, that Lewis, the defendant, brought an action of trespass on the case against the plaintiff, and Austin Nichols, Aaron Gregory, Ebenezer Smith, and Azor Buggies, charging them with a combination to defraud him in the sale of a tract of land in Virginia.

In the Court below, T HIS was an action on a promissory note. The defence set up was usury. Held: that Irish interest should be allowed. In Nichols v. Cosset, (c) it was decided, that a mortgage deed, securing a certain sum with seven per cent interest, executed in this state, to indemnify the mortgagee against an obligation given in New-York, bearing the same interest, was not usurious.

In the Court belowj J- HIS was a prosecution before a justice, on the corn-plaint of a grand-juror, for unlawfully voting in the town meeting of Durham, on the 10th of… Held: that the jury could not be discharged, the only reason for discharging them was, that the prosecutor was not prepared with evidence ;—none are cases where the jury could not agree. X It maybe objected that one cannot be twice tried, or put on trial, for the same offence. But such is not the rule.