Wales v. Clark.

estate, before the precept, by virtue of which the attachment is made, is placed in his hands? The statute is as follows: "Real estate shall be attached by the officer's lodging with the town clerk of the town in which the land is situated, a certificate that he has made such attachment,

and said attachment, if completed as hereinafter provided, shall be considered as made when such certificate is so lodged." The remainder of the section prescribes the substance of this certificate, and provides that the officer shall, within four days. thereafter, leave with such town clerk a full and certified copy of the process under which the attachment was made. Gen. Statutes, 1866, p. 4, scc. 17.

This statute was passed in 1855; and the lodging of a certificate is a substitute for the old mode of attachment, which was by an entry on the land. The officer who had a writ of attachment to serve went upon the land and that constituted the attachment. The attachment is now made by lodging with the town clerk a certificate, and it is expressly provided that the attachment takes effect when the certificate is so lodged. Under the old statute, an entry without a process was clearly ineffectual; under the present, the lodging of a certificate before the process is received is equally invalid.

The power and duty of an officer depend upon his possession of the process. The latter may be qualified, or the officer may be relieved of it altogether, by instructions; but it exists only while the power exists, and both come into existence when the process is placed in his hands. Until then he has no authority to act, and cannot be justified in interfering with the persons or property of others.

It will hardly be pretended that an officer will be justified in making an arrest in a civil suit before he receives a precept commanding him to do it; nor can he take personal property in anticipation of a writ of attachment. In such cases he must be prepared, if his right is challenged, to produce his authority. If he cannot do it he is a trespasser and may be resisted as such.

The land in New Haven County was not otherwise attached than by the officer's lodging with the town clerk the required

Travelers Insurance Company v. Savage.

certificate on the day before he received the writ. It follows that there was no valid attachment, and the Superior Court must be advised that it has no jurisdiction of the case.

In this opinion the other judges concurred.

THE TRAVELERS INSURANCE COMPANY US. FANNIE E. SAVAge.

A petition for a new trial is not insufficient in form because it does not set forth the evidence on the former trial upon a point not now controverted, and which is not affected by the newly discovered evidence which is the ground of the petition.

It is not enough, upon such a petition, that the evidence is newly discovered, if it might have been obtained on the former trial by the use of due diligence. And the evidence must not be merely cumulative to evidence introduced on the former trial.

Nor merely cumulative to evidence known at the time of the former trial, but not then introduced.

PETITION for a new trial, brought to the Superior Court in New Haven County.

The former trial was of an action of assumpsit upon a policy of insurance upon the life of one Jesse L. Savage, issued by the present petitioners, in favor of the respondent, as the wife of the insured, the application for the insurance, signed by the said Jesse, representing her as his wife. The petition averred that on that trial it was a material question whether, at the time of the death of the said Jesse, on the 13th day of September, 1870, the respondent was his wife, and set forth all the evidence introduced by the petitioners upon the trial upon that point. The petition then alleged that the petitioners had since the trial discovered material evidence in their favor, which they had at that time been unable to discover, although they had used all reasonable diligence in endeavoring to find testimony in their favor; and that the verdict against them upon that trial was unjust and that the petitioners had reason to believe that if they were allowed a new trial, with

Travelers Insurance Company v. Savage.

all the evidence which they could now produce, such evidence would satisfy a jury that a verdict should be rendered in their favor. The petition then set out the newly discovered evidence and the names of the witnesses.

The defendant demurred to the petition as insufficient in both form and substance, assigning as special cause of demurrer that the petition did not set forth all the evidence adduced upon the trial of the original action, and setting forth the names of and the matters testified to by, sundry witnesses, whose testimony related solely to the manner of the death of the said Jesse L. Savage; it having been claimed by the petitioners upon the former trial that the said Jesse committed suicide, a point to which no reference was made in the present petition.

The court reserved the questions arising on the demurrer for the advice of this court.

G. H. Watrous and L. H. Bristol, in support of the demurrer.

T. E. Doolittle, contra.

FOSTER, J. The question raised by the demurrer interposed in this casc-is this petition sufficient?-is reserved by the Superior Court for the advice of this court.

The defendant claims the petition to be insufficient both in form and substance. The alleged defect, in form, is the omission to set out all the evidence introduced on the former trial of the case. The alleged insufficiency in substance is based on various grounds; the principal ones being, that it does not appear but that the evidence claimed to be newly discovered might have been produced on the former trial by the use of due diligence; also because it does not appear that the newly discovered evidence is material, or would be likely, if introduced, to change the verdict; and because it does not appear that injustice has been done.

The rules and principles which govern in applications for new trials are well settled, and they have been so recently

Travelers Insurance Company v. Savage.

and so fully set forth by this court, in the case of Pratt v. Palmer, 37 Conn., 563, as to make further discussion of them quite unnecessary.

On the former trial between these parties the action was brought on a policy of insurance issued on the life of Jesse L. Savage, on the 13th of September, 1870, for the benefit of Fannie E. Savage, the present defendant, wife of said Jesse L. Savage. The defence was rested on two grounds: 1st, that the death of said Jesse L. Savage was caused by his own hand, and 2d, that Fannie E. Savage was not the wife of Jesse L. Savage.

The verdict and judgment were against the present plaintiffs.

The first ground of defence is now abandoned. A new trial is sought by the plaintiffs only to prove, more perfectly than before, that the defendant, Fannie E. Savage, was not the wife of Jesse L. Savage.

The result to which we come, as to the sufficiency of this petition in point of substance, makes it perhaps less important to pass specially on the question raised as to its sufficiency in point of form. As no question is now made as to the cause or manner of the death of the assured, but only as to whether the defendant was his wife or not, we see no sufficient reason for requiring the evidence formerly introduced, as to the cause or manner of the death, to be set out at length on the record. We think that might be, as it was, omitted, and still that the petition would not be, and was not, for that cause, in form insufficient.

The question of the sufficiency of this petition in substance presents more difficulties.

On the former trial testimony was offered on the part of the defence to show that Jesse L. Savage was married to Leonora Beals, in the state of Massachusetts, on the 1st of December, 1850, and that they continued to be husband and wife till some time in April, 1866, when by a decree of the Supreme Judicial Court of Massachusetts, the said Leonora obtained a divorce from the said Jesse. Evidence was offered going to prove the marriage of Jesse L. Savage with Fannie

Travelers Insurance Company v. Savage.

E. Savage on the 14th of December, 1865. The identity of the Jesse L. Savage who married Leonora Beals, with the Jesse L. Savage who married Fannie E. Savage, and took out this policy of insurance, of course became and was a vital point in this part of the defence. If he was not the same man, the evidence amounted to nothing, and was in law inadmissible. The defendant, on the former trial, must necessarily have claimed such identity, and also that it was proved.

A certificate of the marriage of Jesse L. Savage to Leonora Beals on the 1st of December, 1850, was given in evidence. An authenticated copy of the record of the Supreme Judicial Court of the state of Massachusetts was also given in evidence, from which it appeared that Leonora Savage was divorced. from Jesse L. Savage, at a term of said court held at Taunton, in the county of Bristol, on the 3d Tuesday of Aprii, 1866.

Frederic Beals was on the stand and testified, among other things, that he knew Jesse L. Savage; that he, the witness, lived in Stoughton, and had lived there forty-two years; that Savage married his sister, Leonora Beals, and that after their marriage they boarded with him four or five months, and then kept house forty or fifty rods from where he lived; that Savage lived with his sister as her husband, he should think, some eight or nine years; that his sister now lived with him, the witness, and had done so nearly all the time for three years past; that she was the same person mentioned in the decree of divorce, introduced in evidence, and that she expected to come to court, but was prevented by sickness, &c.

Mrs. Savage, plaintiff in the former suit, now the defendant, testified, among other things, that when she married Mr. Savage she knew he had had a wife, and was a divorced man; and that he formerly lived in Massachusetts, but she did not know where. She supposed his former wife was living, when she married him, but that she was divorced. She knew nothing about it but what her husband told her, &c.

Now, Leonora Savage, Esther B. Beals, and Ella A. Pierce, all of Stoughton, in the state of Massachusetts, are named as witnesses, and the testimony expected from them is set forth