Staples v. Fillmore. partnership more than his interest in its assets, and had for a valuable consideration conveyed all his interest to the petitioner, and that the petitioner denied at the time of the attachment all title of Huntoon to the property and signed the receipt only to prevent its being taken away by the officer. These facts do not entitle the petitioner to any relief in equity. The fact that Huntoon had only a partnership interest in the property is not sufficient. If he had had none at all, that of itself would not have excused Staples from performing his contract. The validity of officers' receipts does not depend upon title in the attachment debtor. They are often given without reference to title, or even to the existence of the property therein named, being receipts for nominal property merely, the object being to secure the debt. The fact that it will be a hardship for the petitioner, or those interested in the estate which he represents, is of no avail. It is always a hardship in one sense for a man who indorses a note for another, or signs a bond or other obligation as surety, to be obliged to pay the demand; but it is not a legal hardship, and no one ever supposed that a court of equity could relieve him of his legal liability. The attempt in this way to settle the affairs of the partnership and compel the creditor to take only Huntoon's interest in the property attached cannot succeed. Admitting that his interest was that of a partner only, that fact is no defense to an action on the receipt and cannot now operate to avoid the judgment. Moreover this is not an appropriate proceeding for settling the affairs of a partnership. When the property was attached Staples might have protected his own interest, and limited the effect of the attachment to the interest of Huntoon. But failing to do that, and having taken upon himself the obligation of a receiptor, he must accept the legal consequences. Equity can give him no relief. There is no error in the judgment of the court below. In this opinion the other judges concurred. Brown v. Fitch. 43 512 77 467 ELIAS P. BROWN vs. WILLIAM H. FITCH. The owner of a mowing machine delivered it to A, under an agreement by which A was to become the owner on paying a certain sum agreed on, part of which was to be paid down and the balance in installments at certain fixed times; the owner to have the right to retake possession on default of any of the payments. Before the first installment fell due A sold the machine to B, and default of payment being afterwards made the owner brought replevin against B without previous demand. On the trial B offered no evidence to show that he paid a valuable consideration or took the property in ignorance of the plaintiff's rights. Held-1. That if B claimed any rights from being a bonâ fide purchaser, the burden of proof was on him to show that he was such. 2. That B took no better title than A had himself, and that therefore the plaintiff could maintain the action without a previous demand. REPLEVIN, to recover a mowing machine, claimed to be unlawfully detained by the defendant; brought to the Superior Court in Windham County, and tried to the court, on the general issue, before Granger, J. The court found the following facts :-The plaintiff on the 10th of July, 1873, owned the mowing machine in question, and on that day made an agreement with one Armstrong under which the latter was to take the machine and pay the plaintiff $110 for it-$30 the next day and before using it, and the balance in four monthly installments of $20 each; the machine to remain the property of the plaintiff until the price was paid, and he to have the right to take it back into his possession on default of any payment agreed to be made. The first $30 not having been paid as agreed, the plaintiff was about to take possession of the machine, when at Armstrong's solicitation the time for payment was extended, Armstrong paying down $40, and agreeing to pay the balance in three monthly installments of $20 each and a fourth of $10. Before the first installment became due Armstrong sold the machine to the defendant; but when that installment fell due neither Armstrong nor the defendant paid it, and it was never paid. A few days after this installment fell due, the plaintiff, without having made demand on the defendant for the machine, brought the present action to recover possession of Brown v. Fitch. it. The defendant offered no evidence to show that he paid Armstrong a valuable consideration or that he took it in ignorance of the plaintiff's rights. Upon these facts the defendant claimed that the action could not be maintained, and requested the court so to rule. The court however ruled that no previous demand was necessary and rendered judgment for the plaintiff. The defendant moved for a new trial for error in this ruling of the court. S. Lucas, in support of the motion. E. B. Sumner, contra. PARK, C. J. Before the defendant can claim the advantages of a bonâ fide purchaser from Armstrong, he must show affirmatively that he paid a valuable consideration for the property, and that the purchase was made in the belief that Armstrong was the owner. This he failed to do, and we think the ruling of the court in the circumstances of the case was correct. The property belonged to the plaintiff by the express terms of the contract between him and Armstrong, until Armstrong should pay the sum of one hundred and ten dollars in installments from time to time. When the sale was made to the defendant, but one installment of forty dollars had been paid. It was further agreed between the plaintiff and Armstrong, that if the latter should at any time make default in the payment of any installment the plaintiff should have the right to repossess himself of the property. Armstrong made such default in the payment of the second installment, and the plaintiff therefore had the right to take possession. Armstrong could convey to the defendant no greater right than he himself had, and it follows that the plaintiff had the same right to retake the property as against the defendant, that he had as against Armstrong. A new trial is not advised. In this opinion the other judges concurred. 43 514 69 191 1 43 514 76 541 Andersen v. The State. SUPREME COURT OF ERRORS. COUNTY OF NEW HAVEN. APRIL TERM, 1876. Present, PARK, C. J., CARPENTER, FOSTER, PARDEE AND LOOMIS, JS. JOHN ANDERSEN vs. THE STATE. The Superior Court has no power, upon a petition for a new trial, to grant a new trial for error in the charge of the court or on the ground that the verdict is against the evidence. New trials are granted for these causes only by the Supreme Court, upon motions filed in the lower court, and at the same term at which the case was tried. The Superior Court has the power, on petition, to grant new trials for newlydiscovered evidence. A petition for that cause is addressed to the discretion of the court, and the decision of the court is not the subject of revision by this court. There is no express authority for the granting of new trials by the Superior Court in criminal causes, but such power is implied in certain provisions of the statute, and has been repeatedly exercised. There are certain well-established rules which govern the court upon such peti tions and which are strictly applied in civil causes, but in a case where human life is at stake justice and humanity require the court to make a less rigid application of these rules. One of these rules is, that a new trial shall not be granted for newly-discovered evidence, if the evidence might have been discovered and produced on the trial by the use of reasonable diligence. What is reasonable diligence in a particular case is to be determined upon consideration of all the circumstances of the case. Where the petitioner had been convicted of murder in the first degree, and sen tenced to be hanged, and his sole defence had been insanity, and it appeared that he had been kept in close confinement from the time of the homicide to the time of the trial, that he was poor and a foreigner and perhaps really insane, and that his sole counsel was a young lawyer of little experience, it was held that his petition ought not to be denied on the ground of negligence. Andersen v. The State. Another of the rules governing such petitions is, that the newly-discovered evidence must not be merely cumulative. Where the newly-discovered evidence was only additional evidence of the peti tioner's insanity, consisting of the testimony of various persons who had on different occasions observed his conduct and regarded it as indicating insanity, it was held that, if the court could see that it might reasonably affect the result, the fact that the evidence was in some sense cumulative, ought not, in a case where life was at stake, to be decisive against the granting of a new trial. Unsoundness of mind is a fact which is not susceptible of direct proof. In many cases it can be established only by a series of facts and by conduct extending over a considerable period. A large number of acts indicating insanity will generally produce a greater effect upon the mind of the trier than a small number. Thus merely cumulative evidence may be more important upon such an inquiry than in other cases. And it is a consideration of importance in the present case, that, even if the proof should not establish the total want of responsibility by reason of insan. ity, yet it might show that the prisoner's mind was so impaired that he was incapable of a deliberate, premeditated murder, and so should be convicted only of murder in the second degree. Under our statute, which divides murder into two degrees, there is ample opportunity to make some allowance for those cases where, from any cause, excitement and passion continue beyond the limits allowed by the common law, and impel to the commission of crimes which would not be committed in cooler moments. And a person of excitable temperament and morbidly jealous and suspicious may be so wrought upon by exasperating causes, that, with time enough for passion to cool in an ordinary case, he may yet not have recovered a rational control of himself. Courts have been slow to recognize moral insanity as an excuse for crime; but that it exists and is well understood and in some cases clearly defined by medical and scientific men, can not be denied. And a jury, where satisfied of its existence in a particular case, ought to consider it in determining the degree of crime, and to give it such weight as it is fairly entitled to under the circumstances. [PARK, C. J., and LOOMIS, J., dissenting with regard to the granting of a new trial for newly-discovered evidence.] PETITION for a new trial, upon a conviction of murder in the first degree; brought to the Superior Court in New Haven County, and reserved, upon a finding of the facts, for the advice of this court. The case is sufficiently stated in the opinion. L. N. Blydenburgh and R. S. Pickett, with whom was J. Bishop, for the petitioner. |