Clark against Mix and others, 15 Conn. 152

Williams, Ch. J. 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 5th plea is sufficient or not, is of little importance in this case; for if the bond is illegal, as is there claimed, it appears on its face; and its character cannot be changed, by an allegation, such as is contained in that plea.

The plea itself states no new fact, and offers no issue, but upon a matter of law arising on the face of the record, which, of course, is not. traversable, and so, not properly pleaded. Still, the question is fairly on the record, is this a valid bond ? 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 defendants pleaded, that they had rendered such an account; could it seriously be claimed, that, as they rendered no account for the household furniture, this would be a breach of the bond'? The meaning is certainly as clear, as was that of the parties in Hassell & al. v. Long & al. 2 Man. & Sel. 363.

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 of the insolvents, m the state of Connecticut, except the household furniture of the assignors ; which assignment was lodged in the court of probate, and duly recorded there, on the same day ; on which day, goods so assigned, to the value of 50,000 dollars, came into the hands of said trustees, which was well known to them; and such goods ought to have been by them retained in their possession ; and that, on the 27th of June, 1837, bonds were ordered and given ; and it was further ordered, that said trustees make and deposit with said court, within two months from said 29th of April, 1837, a true and perfect inventory of the estate of said insolvent debtors ; and that said estate be settled within one year; and the appraisers were appointed to appraise the same, and make an inventory thereof; and the goods so assigned by said insolvent debtors to said trustees, and which came into their hands, to the amount of 50,000 dollars, then remained in the hands of said trustees ; all of which goods so remaining, were subject to the controul and disposition of said trustees, and they should and might have made a true and perfect inventory thereof, and the same have deposited witli the court of probate, according to the condition of said bond ; and it was the duty of the trustees, pursuant to law, and to said orders, to make and deposit in said court an inventory and appraisal of all said goods and estate of said insolvents, so coming into their hands and possession as aforesaid; and the same truly to administer according to law, and to appropriate the goods and estate of said insolvént debtors, so assigned to them as aforesaid, in payment and satisfaction of said claims, &c.

Every allegation here, is evidently in reference to the assignment of the 29th of April. When an inventory of the estate is spoken of, it commonly means the estate so assigned ; and when an appraisal is mentioned, it is equally apparent, that it refers to the estate assigned ; and when a return is to be made to the court of probate of goods and estate, it must intend the goods and estate before mentioned. 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 they should settle the estate, and render their account, within one year; neither of which, it is averred, they have done. The statute directs, that such inventory shall be made within such time as the court of probate shall prescribe, not exceeding two months.

It further provides, that the court of probate shall give notice of the time of the appointment of commissioners ; and although there is no express provision that the court of probate shall direct as to the time when they shall settle their account, and close the business of the trust; yet, as the court is expressly authorized to call the trustees to account for the property assigned, it would seem to follow, that the court must have authority to fix the time of settling the estate, that it might be known and understood, when the account would be taken.

This, and the other orders of the court of probate, having been legally given, and not complied with, we see not why a breach of the bond is not incurred, in each of these particulars ; for if a neglect to obtain the necessary orders from the court of probate, is a breach of the bond, as is said in Warren v. Powers, 5 Conn. Rep. 383., a fortiori, a neglect to comply with these orders, must be a breach.

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 these defendants are precluded from setting up this defence; - and it is in vain to say, that the court of probate might have displaced them, and appointed others more faithful. The objection still remains — they are complaining of an omission, which is the fruit of their own misconduct. Besides, if these persons cannot be heard here, because this court does not know they are creditors, as their debts have not been proved before commissioners, why would not the same argument be valid, before the court of probate, if they complained of these trustees ?

Has the court of probate any more authority, of itself, to inquire into the validity of the debts, than this court has? The authority of the court of probate is more limited ; and in Isaacs v. Stevens, 13 Conn. Rep. 499. 505., we held, that it had no such authority. Indeed, we see not how, upon the principles assumed, any redress at all could be had. In English & al. v. Smith & al., 13 Conn.

Rep. 221. 224., certain persons, who had never presented their claims to commissioners, appealed, on account of the appointment of those commissioners; and it was claimed, that they were not creditors, and had no right of appeal. But the court said, that if the commissioners were disqualified to act, creditors forfeited no rights, by neglecting to recognize them, and were entitled to the same privileges as the other creditors; and besides, the superior court had found, that they were creditors. That same fact is found, by the verdict of the jury, in this case ; and we cannot see, why the case of English v.

Smith is not in point upon that subject. If the cases differ, that difference is in favour of these creditors. In that case, the want of competent commissioners was not through the negligence of the trustees, as it is here ; but from a want of knowledge, in the court, of a fact, which disqualified one of the commissioners. 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 court, Judge Peters does recognize this as a principle settled in Massachusetts, Neio-York and 'Virginia. But it will be-found, that, in Massachusetts, it is expressly provided, by the 2nd

section of the act of 1786, that where a suit is instituted at the desire of a creditor of the deceased, he must have his debt or damage ascertained, by a judgment of court, and must have made a demand thereof. Payne v. Gill, 13 Mass. Rep. 368. And in the case cited from Virginia, the case was against sureties, and the court say, that as the sureties cannot have the means of ascertaining the debt, suit should first be brought against the principal; for it is a principle of universal law, that both parties should be heard. Braxton exr. v. Winslow & al. 1 Wash. 31.

In this case, both principal and surety are parties; of course, that case is not applicable. And in the case of The People v. Dunlap, 13 Johns. Rep. 437., the question did not arise, the debt having gone into judgment ; but the court held, that the non-payment of such a debt was a breach of the bond, notwithstanding some English cases. Archbishop of Canterbury v. Wills, 1 Salk. 316. Archbishop of Canterbury v. Tappen, 8 B. & Cres. 151.

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 addition to this, this objection is made upon a motion in arrest, - that the plaintiff has not set out the nature and character of these debts as he ought. Now, if the non-payment was the only breach alleged, and this was upon demurrer, then, according to the case of Isaacs v. Stevens, the replication would be insufficient. But where the defendants have chosen to traverse the existence of the debts, and it is found against them, it seems too late to make that question.

It is the case of a title defectively set forth, rather than the case of a defective title. 2 Tidd’s Pr. 826. However this may be, according to our practice, sanctioned by many decisions, if there be one count in a declaration good found for the plaintiff, he is entitled to judgment. We think, therefore, judgment ought not to be arrested. 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 think, that they ought to be acknowledged. Smartle d. Newport v. Williams, 1 Salk. 280. Bul. N. P. 155.

The same - principle that will dispense with the original in one case, will apply to the other ; and a copy of a transfer of personal property from the records of the court of probate, is surely as high evidence as a copy of the deed from the town-clerk, is of the transfer of real estate. 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, the assignment is not recited ; it is only described ; and it is - possible, the instrument offered, is not that which is described.

But if the party has admitted the existence of such an instrument as this purports to be, and the instrument produced corresponds entirely with such admission, it would seem to furnish prima facie evidence that it was the instrument intended. It may, indeed, have been forged ; so may a deed which has been recorded ; but that will not prevent the copy being given in evidence. And the question here is, not as to the weight, but the admissibility, of the evidence.

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, as soon as may be. The assignment, then, is complete ; but for the greater facility in finding the goods, the

schedule is to be made. In Emerson & al. v. Knower, 8 Pick. 63. 65., there was an assignment of a quantity of leather and stock for the manufacture of boots and shoes, and of boots and shoes already made, or partly made, in the hands of certain persons ; with a proviso that a

schedule of the property should be made and annexed, as soon as might be. And the supreme court in Massachusetts held, that the conveyance was good ; that the annexation of a

schedule was not a condition on which the validity of the assignment depended ; and that the covenant was not essential, the property, and the place where it was to be found, being mentioned. And it is said, that the words as soon as may be,” prove, that it was not considered, by the parties, as affecting the validity of the assignment. A similar decision was made in New-Tork, in the case of Keyes v. Brush, 2 Paige, 311. And we concur in the views taken by the court in these cases.

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. or, of every kind, confirmed by a subsequent assignment of certain specified effects ; and as to this first assignment, Washington, J., says, as to the want of a schedule, it must be admitted, that an assignment of all the debtor’s effects, without a specification of property, is, generally speaking, an indicium of fraud ; but nothing more.

And if, as between the parties, a general conveyance of property was not valid, the learning which was displayed in Twyne’s case, must have been thrown away, and the various questions there discussed were of no importance to the results. 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 performance, assign a breach ; and we certainly are not disposed to question that doctrine.

But here, one or more distinct breaches of the bond are assigned and proved. The plaintiff, at common law, had a right to judgment for the whole penalty ; and the defendant was driven into a court of equity to reduce it. Collins v. Collins, 2 Burr. 824. For, in an action of debt on a bond, the plaintiff, at common law, could assign but one breach. Manser's case, 2 Co. 4. This is varied by statute ; and if judgment is given for the plaintiff, on demurrer, or by confession, or nil (licit, the plaintiff may suggest on the roll as many breaches as he sees fit, and the jury may pass upon them. 1 Wms. Saund. 58. n.

Now, if a bare suggestion upon the roll will entitle the plaintiff to prove any damages he has suffered, shall we be more nice, and require more precision, when we are inquiring what in equity is due to this plaintiff ? Are not the defendants apprised of the nature of the claim, by these replications, as fully as if they were merely suggested on the roll ? Our statute merely provides, that where the bond is forfeited, such damages shall be assessed, as are justly and equitably due; and judgment shall not be rendered for the whole penalty, unless it appear to be due.

Now, had this judgment been by-default, or upon demurrer to the plaintiff’s declaration, there can be no doubt, by our practice, and also upon principles of equity, that the court would inquire what damages the plaintiff, or those he represented, had sustained. And can the defendants now sustain any injury-, that they would not then ? If it is said, they do not know what to defend against, it might so be said then. If it is said, that it is not here shown what is the particular claim on which damages are given ; the same might be said in that case.

And if these objections cannot prevail in those cases, it seems that they should not in this. In this very term, in the case of Rowland v. Isaacs, 15 Conn. Rep. 115., the defendant’s plea being determined against him, we have gone on and assessed to the plaintiff the damages he had sustained. As the defendants have incurred the penalty of the bond, they ought not to complain, if the plaintiff recovers no more than he has shown himself equitably entitled to.

It is, then, the opinion of a majority of the court, that there should not be a new trial; and that the superior court should be advised to overrule the motion in arrest. In this opinion Waitb and Storks, Js. concurred.