#### Knox vs. Bigelow and others.

An administrator may sue, at his option, in his individual or representative ea-pacity, for an injury done to goods of his intestate between the time of the death and the granting of letters of administration.

When in such an action the administrator sues in his representative capacity, and one of the defendants justifies the taking under a mortgage alleged to have been executed to him by the intestate, and a co-defendant justifies as the servant of the mortgagee, such co-defendant is not a competent witness to prove that the intestate executed said mortgage, although it appeared from other proof that such an instrument, purporting to have been executed by the intestate, was accidentally destroyed by fire, and that such co-defendant was a subscribing witness to it.

The exclusion of the co-defendant as a witness for such purpose would *seem*to be in accordance with the spirit of the law on that subject, even if the suit had been brought by the plaintiff in his individual capacity.

A jury are at liberty to look at parties iu court for the purpose of determining questions of identity, and this court cannot say that the court below erred in refusing to dismiss an action of trespass as to a defendant who was identified as one of the wrongdoers only by a partial description of his personal appearance, the record showing that he was in court where the jury could see him, and not showing whether the description was or was not applicable to him.

In trespass by an administrator, the defense was that the goods were taken by virtue of a mortgage executed to one of the defendants by the intestate. On the trial, after showing that a mortgage upon the goods, purporting to have been executed by the intestate, had been accidentally destroyed by fire, another defendant, who was one of the subscribing witnesses to the alleged mortgage, was called to prove its execution, but was rejected as incompetent, and the defense failed for waut of proof of the execution of the mortgage. A motion for a new trial was made, supported by the affidavit of a son of the intestate, that he had examined the alleged mortgage before its destruction, and knew that the signature to it was in his father’s handwriting, and by the affidavit of the principal defendant that he did not discover until after the trial that the intestate’s son knew the above fact, and that the other subscribing witness was not called at the trial to prove the execution of the mortgage because he had stated that he could not sufficiently recollect the transaction to testify in regard to it. *field,*that a new trial should have been granted.

ünder section 49, chapter 133, B. S., 1858, an administrator is not personally liable for costs in an action brought by him in his representative character for a conversion of the property of the estate, whether such conversion occurred before or after the death of his intestate, unless he has been guilty of mismanagement or bad faith in maintaining the action.

*li seems,*that section 13, chapter 103, E. S., 1858, is applicable only to cases and proceedings in probate courts.

APPEAL from tbe County Court of *Milwaukee*County.

*416Knox, as administrator of one Phalen, sued the defendants, Bigelow, *Freeman*and Munyan, for unlawfully taking a stock of boots &c., of which Phalen was possessed, as of his own property, at the time of his death. Phalen died on the 22d of November, 1860, and administration was granted to the plaintiff, February 18th, 1861. The answer justified the taking under a mortgage on the stock executed by Phalen, in his lifetime, to *Bigelow,*by which the mortgagee was authorized, at any time when he deemed himself insecure, to take possession of the goods and sell them &c., and alleged that *Mun-yan*and *Freeman*acted as the agents of *Bigelow*in taking possession of the goods. There was also a general denial. The proof that *Munyan*was present at the taking of the goods, was this : One witness stated, that on the 26th of November, 1860, he saw *Freeman*and *Munyan*taking the goods in question from the shelves of the store formerly occupied by Phalen, but on cross-examination he said that he did not know Munyan, but the man who was with *Freeman*was a man with reddish whiskers, whom he took to be *Big-elow's*foreman. Mrs. Phalen testified that on the 26th of November, 1861, she went to the store of her late husband, and *Freeman*was there and a red-whiskered man whom she took to be *Bigelow's*foreman; that the goods in question were then on the floor, and she shortly afterwards saw them carried from a dray into *Bigelow's*store; that she did not know Munyan; that she took the red-whiskered man to be *Big-elow's*foreman, because her husband had once sent her son to *Bigelow's*store and told him to ask for *Mr.*Munyan, and the boy returned and told her husband what *Mr. Munyan*said. Another witness stated that he was present when the goods were taken away from Phelan’s store by Freeman, and a tall man with sandy whiskers. The plaintiff also called *Freeman*as a witness, who testified that on the 26th of November, 1861, *Munyan*was foreman and cutter in *Bigelow's*store. The defendants moved for a nonsuit as to Munyan, or that the action be dismissed as to him, on the ground that he had not been identified by the proof as having been present at the taking of the goods. The motion was overruled. They made the same motion as to all the defendants, on the *417ground, that the action was improperly brought by the plaintiff as administrator, (the conversion of the goods having curred after the death of Phalen), and that no demand of the goods had been proven. The motion was overruled. The defendants called the deputy city clerk of the city of Milwaukee, and having proved by him that the records and papers in his office were destroyed by fire on the 30th of December, 1860, asked him if he knew of an instrument having been on file in said office at the time of the fire, purporting to be a chattel mortgage executed by John Phalen to *Charles Bigelow.*The question was objected to, and the objection was sustained. They then handed the witness a copy of a mortgage, which purported to have been executed by John Phalen to *Charles Bigelow,*on the goods in controversy, dated July 16th, 1860, attested by *J. Munyan*and *John Gregory*as subscribing witnesses, and which contained an authority to *Bigelow*to take possession of the goods whenever &c. The copy was partly printed and partly written, and the witness stated that so far as it was written, it was in his handwriting. He was then asked if he knew of the original instrument having been oh file in the city clerk’s office. The question was objected to, and the objection sustained. The defendants then offered the paper in evidence, there being attached to it a certificate of the city clerk, dated November 24th, 1860, stating that it had been compared with the original mortgage on file, and was a true copy. The court admitted the paper as evidence that it was a copy of an instrument that had been received and filed in the city clerk’s office, but not as evidence of any other fact. The city clerk testified that he presumed that the original, of which áiid paper is a copy, was destroyed by fire in his office, that he had searched for it in the office since the fire, and could not find it; and that he had never been acquainted with Phalen. The defendants then called *Munyan,*who offered to testify “ that on the 16th of July, 1860, the witness was in the employ of the defendant *Bigelow,*and then had, and has since had, no claim against John Phalen or his estate; that at the time of taking the goods specified in the complaint, he acted as the agent of Bigelow, and had no in*418terest in the goods and has since acquired none; that on the of July, 1860, John Phalen executed in his presence, an¿ delivered to the defendant *Bigelow,*an instrument in writing under his, Phalen’s, hand and seal, of which the paper before given in evidence was a copy; had that the witness, at the time of its execution, subscribed his name to said instru ment as a witness. The defendant *Freeman*also proposed to testify to the same effect, (except that he was not a subscribing witness to the mortgage), and that he filed the original instrument in the city clerk’s office. The court refused to receive the testimony so offered, but permitted those witnesses to testify to any facts which had occurred since the death of Phalen. The defendants asked the court to instruct the jury that they must find for the defendants because the alleged conversion took place after the death of Phalen, and the plaintiff had no right to sue. in his representative capacity ; and because no evidence had been given of a demand of the goods. These instructions were refused. They also asked the court to instruct the jury, that if they believed from the evidence that the defendants took the goods by virtue of a mortgage upon them executed by Phalen to *Bige-low,*they must find for the defendants. The court told the jury that was so, but that there was no evidence before them of the existence of such a mortgage. Exceptions were taken by the defendants to all the rulings against them. Verdict for the plaintiff. The defendants moved for a new trial upon the judge’s minutes and certain affidavits, which were in substance as follows: John Phalen deposed that he was the son -of John Phalen deceased, and was fourteen years of age; that on or about the 28th of November, 1860, he went to the office of the city clerk in Milwaukee, at the request of his mother, to examine a mortgage given to *Charles Bigelow*by his father on his stock of boots and shoes; that he saw said instrument on file in said office, and took a copy! of the schedule attatched to it; that he had often seen his father write, was well acquainted with his handwriting, and knew that the schedule was signed by his father, and that the signature to the instrument was also in his father’s handwriting. The defendant *Bigelow*stated in his affidavit, that the mort*419gage referred to in tbe answer was executed to biro, by-Jobn Pbalen on tbe 16tb of July, 1860 ; that be bad endeavored to obtain tbe evidence of Jobn Gregory, one of tbe subscribing witnesses, on tbe trial of tbe action, but that be was an old and feeble man of very poor memory, and stated to tbe affiant that be could not sufficiently recollect tbe transaction to testify in regard to it, and that as tbe original bad been destroyed be bad no means of refreshing bis recollection ; that since tbe trial be bad discovered that Jobn Pbalen, tbe son of tbe mortgagor, saw tbe mortgage on file and knew that it was signed by bis father; that until tbe day before making said affidavit, the affiant bad no intimation that said Jobn knew anything in regard to tbe transaction; that tbe amount secured by tbe mortgage was actually due to him from tbe mortgagor, and that unless be should be allowed to prove tbe existence of tbe mortgage, be believed be would actually lose bis debt. Tbe affidavit of tbe city clerk stated, that be remembered that John Phalen, tbe son, applied to him to examine a mortgage from bis father to *Charles Bigelow,*and that be exhibited to him tbe instrument referred to by said Jobn in bis affidavit, which was tbe only-one then on file purporting to be made by Jobn Pbalen to *Charles Bige-*low., and was tbe one a copy of which was exhibited on the trial of this action. In opposition to tbe motion, tbe plaintiff’s affidavit was read, stating that tbe age of Mr. Gregory was about sixty-five; that be was capable of attending to business, in good health, with intellect unimpaired; was a resident of tbe city of Milwaukee, and could have been produced as a witness on tbe trial of tbe action, as tbe affiant believed. Motion overruled, and judgment on tbe verdict.

*James Gr. Jenkins,*for appellants,

argued that tbe plaintiff should have sued in bis own right; that an administrator cannot sue as such, except where bis intestate bad a complete right of action in bis lifetime, citing *Hollis vs. Smith,*10 East, 293; *Talmage vs. Chapel,*16 Mass., *71; Mowry vs. Adams,*14 id., 327; *Biddle vs.*Wilkins, 1 Pet., 692 ; *Savage vs. Merriam,*1 Blackf., 176; *Barnes vs. Modisett,*3 id., 253 ; *The People vs. Judges*&e., 9 Wend., 486; *Mercein vs. Smith,**4202 Hill, 210 ; *Patchenvs.*Wilson, 4 id., 57; *Ketchum vs. Ketch-um,*4 Cow., 87 ; *Barker vs. Baker,*5 id., 268; *Lawrence vs. Lawrence,*3 Barb. Ob., 71; *Sheldon vs. Hoy,*11 How. Pr. R., 14; *Woodruff vs. Cook,*14 id., 481; *Oolby vs. Colby,*2 N. H., 420; *that the*court erred in excluding the testimony of *Munyan*to the execution of the mortgage; that *Freeman*was a competent witness to proye the delivery of the mortgage, as the plaintiff had previously made him a witness; and that the motion for a new trial should have been granted.

May 15.

*Thomas M. Knox,*in person, as to the first point,

cited *Ketchum*[us. *Ketchum,*4 Cow., 87; *Chamberlin vs. Spencer,*id., 550 ; *Barker vs.*Baker, 5 id., 267; *Yalentine vs. Jaclcson,*9 Wend., 302. The questions put to the deputy city clerk and overruled, were improper, even if the instrument in question had not been attested by subscribing witnesses, because they left the question of its execution untouched. *Munyan*was disqualified from testifying to the execution of the mortgage, and *Freeman*was incompetent *to prove*that fact until the non-production of the subscribing witness was accounted for. Both were incompetent to testify *to*facts occurring in *the*lifetime of Phalen. R. S. chap. 137, sec. 51. As to the motion for a new trial, it is clear that had young Phalen been called on the trial as a witness, he would not have been allowed to testify to the existence of the alleged mortgage. It is not a sufficient excuse for the non-production of Gregory, and other subscribing witnesses, that he stated when not under oath that he could not sufficiently recollect the transaction to testify in regard to it. He should have been put upon the stand, so that his knowledge could have been tested under oath; besides, there is nothing in the affidavits to show that *Munyan*and *Freeman*were not aware before the trial, of the so-called newly discovered evidence, or that any diligence was used by any of the defendants to discover that evidence.

*By the Court,*

Paine, J.

We see no error in the rulings of the county court on the trial. The authorities relied on by the appellants to show that the suit should have been brought by the plaintiff in his individual, and not in his *421representative capacity, do not sustain tbe position that it *must*be so brought. They only show that it *may*be, the clear implication from all of them is, that it may also be brought by the administrator, as such, of which there can be no doubt.

The evidence of the defendants as to what occurred in transactions to which the plaintiff’s intestate was a party, was therefore properly excluded, and its exclusion would seem to have been clearly in accordance with the spirit of the law on that subject, even if the suit had been brought by the plaintiff in his individual capacity. For even then the litigation would have affected only the estate of the deceased, and it was the policy of the' law that in such litigations, where the evidence of one of the parties to the original transaction out of which the litigation arose, could not be had, that of the other should not. It is true, the application of the rule worked some' apparent hardship in this case, growing out of the facts that the mortgage had been destroyed, that one of the subscribing witnesses had forgotten in regard to it, and the other was one of these defendants. But such a peculiar state of facts, which could very seldom exist, cannot be allowed to change the law.

The motion for a nonsuit was properly overruled. The appellants claim that the evidence was not sufficient to connect the defendant *Munyan*with the taking of the property. It is true that, on cross-examination, the plaintiff’s witnesses did not show a very thorough acquaintance with this defendant, but they described the man whom they “ took to be” Munyan, as “ a red-whiskered man.” It appears that he was in court, and the jury would have been warranted in finding against him on this evidence, if he answered the description and nothing was offered to rebut it. Whether he did answer the description or not, the bill of exceptions ' does not disclose; and we certainly could not say that a mo tion for a new trial should have been granted upon a question of identity, where the evidence described the party sought to be charged, and the record did not disclose whether that description was applicable to the party in court or not. For the court and jury are undoubtedly at liberty to *422look at parties in court in determining questions of identity, and no appellate court could reverse a judgment for a refu-s£q to nonsuit upon tbis ground, unless it was made to appear that the description was entirely inapplicable to the party objecting to the sufficiency of the evidence.

But we think the court should have granted a new trial upon the ground of newly discovered evidence. The affidavits upon this point are very satisfactory. The evidence supplies the defect in the defense so far as the existence of the mortgage was concerned; and there can be no ground for imputing *laches*to the defendants for not having previously obtained it. It comes from a son of the the intestate, and the defendants certainly cannot be charged with negligence in not going into his family for evidence to sustain their defense. It was said on the argument here, that the court below denied this motion for the reason that the defendants had not, on the trial, offered the testimony of Gregory, the other subscribing witness to the mortgage. But we think they should not have been held bound to such an apparently useless attempt. The affidavits show that Gregory was applied to, and said he had forgotten the fact of the execution of the instrument, and it being destroyed his memory could not be refreshed by inspecting it. This is certainly not very unnatural. There are very few who sign instruments as witnesses merely, who would be able to testify to their execution at any considerable time afterwards, without refreshing their memories with the instrument themselves. Gregory therefore having forgotten, we do not think the defendant should have been held bound to call him on the stand, and have him swear that he had forgotten, as a condition precedent to the right to avail themselves of newly discovered evidence, if they were fortunate enough to discover such after the trial. >

For this reason we think the judgment should be reversed, with costs, and a new trial ordered.

A subsequent motion in this court by the appellant, for a judgment for costs against the respondent, was disposed of in the following opinion.

*423*By the Court,*

PAINE, J.

Tbe appellant’s attorney has moved for a personal judgment against tbe respondent costs. Tbe conversion complained of occurred after tbe death of tbe plaintiff’s intestate, and it is claimed that as tbe suit might bave been brought by tbe plaintiff in bis own name, without suing in bis representative capacity, therefore be shall be personally liable for costs. This was undoubtedly tbe old rule, as tbe cases cited abundantly show. But I am obliged to confess that I bave never been able to see tbe reason of this distinction. An administrator suing for a conversion of tbe property of tbe estate after tbe death of bis intestate, is suing just as much for tbe benefit of tbe estate and just as little for bis own benefit, as in a suit for a conversion during tbe intestate’s lifetime. There may be a technical difference in tbe two cases as to tbe necessity of bis disclosing bis representative capacity. But tbis seems to me entirely immaterial upon the question whether be ought to be personally liable for costs, which ought in both’ cases to depend on tbe question whether be has been guilty of mismanagement or bad faith in bringing tbe action. And I think tbe statute has accordingly abolished tbe old distinction, and provided that in neither case shall executors or administrators be liable to costs personally, unless tbe court shall specially direct it on account of mismanagement or bad faith. R. S., 1858, chap. 133, sec. 49; *Woodruff v. Cook,*12 How. Pr. R., 481.

Tbe only reason' for doubt upon tbis point, is tbe existence of sec. 13, chap. 103, which provides that “ when costs are allowed against an executor or administrator, execution shall not issue against tbe estate of tbe deceased in bis bands, but shall be awarded against him as for bis own debt; and tbe amount paid by him shall be allowed in bis administration account, unless,” &c. Tbis seems directly repugnant to tbe other section, and perhaps there is no way of reconciling them, unless it may be done by holding tbe section just quoted to relate only to cases and proceedings in tbe probate courts. It is found in a chapter relating entirely to tbe proceedings in those courts and to tbe rendering of accounts by executors and administrators. Those courts may, in con*424^es^e(^ casesi S'-76 costs an(^ awar4 execution. Cbap. 117, secs. 36, 37. It may well be said tbat these provisions were intended only as guides for tbe probate courts, and tbat in other cases courts must look to tbe chapter designed specially to regulate questions of costs in courts of record. If there is a conflict, tbe provisions of tbe latter chapter must govern. See sec. 11, cbap. 191.

Whatever, therefore, may be'tbe proper construction of sec. 13, cbap. 103, we are satisfied tbat this motion should be governed by sec. 49, cbap. 133, and *it is*therefore denied, but without costs.