
    Medad Hotchkiss against John Nichols.
    A decree in chancery finding an immaterial fact is notadmissibie, in a subse-?aw°\etween the same parties, to prove such fact.
    MOTION for a new trial.
    This was an action, qui tam, brought on the statute to r , . , .. . . t prevent frauds, quarrels, and disturbances m bargamsa saiesi leases, or other alienations of lands. The plaintiff declared, that on or about the first day of November, 1800, he became the sole and exclusive owner of an undivided moiety of a certain grist-mill, and the appurtenances, in Woodbridge; which moiety was before that time the property of Lois, wife of James Downey: that on the clay before mentioned, he entered upon the premises, and took to himself the exclusive possession thereof, holding out therefrom all others, particularly .Downey and liis wife, claiming the premises as his own estate: that, at Waterbury, on the 14th day of February, 1802, the plaintiff being then in possession of the premises, and Downey and Ms wife, and the defendant dis-seised and ousted thereof, by the plaintiff’s entry and possession ; the defendant, contrary to the provisions of the statute, took and received a conveyance of the aforesaid moiety of the mill and appurtenances from the said James Downey and Lois his wife, to him, the defendant, he then 
      
      well knowing that Downey and his wife were ousted of the possession of the premises, by the entry and pos- . . . . . . session oí the plaintiff: and that the plaintiff then and there possessed, held, and claimed the same as his own estate in fee, exclusively of all others; and that, on the 15th day of February, 1802, the plaintiff being still in possession, the defendant caused the aforesaid deed of conveyance to be recorded in the records of the town of Woodbridge; and by virtue thereof, the plaintiff has ever since claimed title to himself in the premises.
    The defendant pleaded not guilty; and a verdict was found for the plaintiff. A motion for a new trial was then made, on the following grounds:
    1. Because the plaintiff, on trial of the cause, offered in evidence to the jury, to prove that he was in possession of the premises, holding adversely, and that this was known by the defendant at the time when he took the deed complained of, a certain decree in chancery, made hy the superior court., in a cause wherein Medad Hotchkiss was plaintiff, and John Fichóla, James 8. Downey and his wife Lois, were defendants; which decree was admitted by the court, as evidence to prove the fafcts aforesaid; and is as follows, viz.
    “ Superior Court, July Term, 1804.
    “ Upon the petition of Medad Hotchkiss of Woodbridge, in JYew-Haven county, showing, that on the first of Foil ember, 1800, the petitioner was the owner in fee of one, quarter of a grist-mill, in Woodbridge, on Beacon-Hill brook, called the Straits Mill, with all the privileges thereto appertaining. That Samuel Osborne was the owner of one other quarter; and that Lois, the wife of James S. Downey, then of Woodbridge, was owner of the remaining half. That previous to the first day of 
      November, 1800, the before-mentioned owners procured important and exiensive repairs to be made upon the “¾ mill-dura and appurtenances, to the amount of more than one thousand dollars. That the said James and Lois were unable to defray their proportion of the expense of such repairs; and that, at their request, the same was paid by the petitioner, to the amount of about four hundred dollars; and in consideration thereof, on or about the first day of November, 1800, the petitioner, and the said Lois and James, mutually covenanted and agreed, that for the consideration of five hundred dollars, to be paid in manner as was then stipulated, the said James and Lois would convey by a good and sufficient deed, their half of the aforesaid mill, with the privileges and appurtenances, to the petitioner. And that, from the sum of five hundred dollars should be deducted the sum advanced by the petitioner, for repairs, on their account; and the remainder, if any, as stated in the bill. That in pursuance of this contract, the said Lois and James delivered possession of the mill and appurtenances to the petitioner, for him to use, occupy and improve as his own; and to receive all the rents and profits from and after the aforesaid first day of November, 1800. That in pursuance of the contract, he took possession of the moiety of the mill, and hai ever since used the same, receiving the profits, by their consent; and has made extensive repairs, at his own cost, in expectation of the fulfilment of the contract on the part of Downey. That the petitioner has ever been ready to receive the deed, according to the terms of the contract; and on or about the first day of February, 1802, and at other times, requested Downey and his wife to fulfil the contract. That on or about the 14th day of February last, John Nichols, of Waterbury, in New-Haven county, well knowing all the facts aforesaid, and contriving and intending to defraud the petitioner, and make gain to himself, applied to the said James and Lois5 and persuaded them to refuse to execute their contract with the petitioner, and to convey their half of the mill and appurtenances to him the said Nichols; and on the same 14th day of February, the said James and Lois did execute a deed of the same to the said Nichols, by force of which he has ever since claimed, and still claims, the same, and threatens suits therefore. That the petitioner has ever been ready to fulfil the contract on his part. That he has never received payment of the sums advanced by him, as aforesaid, but the same are now wholly due; and the said James and Lois are insolvent, and unable to pay the same. And that the value of the aforesaid moiety of the mill was, and now is, five hundred dollars; praying for relief,” &c-
    
      Downey and his wife were defaulted. Nichols pleaded,
    that the facts set forth in the petition were not true. The court found that those facts •were (rue; and that, during the pendency of the petition, Downey and his wife, in pursuance of their contract, made, executed and delivered to the petitioner, a conveyance of their moiety of the mill and appurtenances, and settled the account stated in the petition. Upon which Nichols was enjoined against using the deed of Downey and his wife to him, in support of his claim to the mill, under a penalty of two thousand dollars.
    The court charged the jury, that this decree was conclusive evidence of all the facts therein adjudicated between Hotchkiss and Nichols; particularly, that at the time Nichols took the deed from Downey and his wife, Hotchkiss was in possession, claiming title; and that this was known by Nichols.
    
    Rule to show cause why a new trial should not be granted was obtained; and the question reserved tobe argued before the nine judges.
    
      
      Ingersoll and Sta/iles, in support of the motion, contended,
    that the decree was not. admissible evidence;
    1. Because the decree and the suit at law were not between the same parties. Bulier’s JV. P. 232. Peake’s Mv, 68. Gilb. 24, 25.
    2. The state is a party to the suit; and a part of the penalty recovered goes to the benefit of the stale. The action, therefore, stands on the same ground with a criminal prosecution ; but a verdict, or decree, in a civil action, is never given in evidence in a criminal ease.
    3. The facts found by the decree ought to be material and necessary to support the decree, in order that this may be given in evidence in another suit. That Me hols knew that Hotchkiss was in possession of the land, was not essential to support the decree. But it is absolutely necessary, that this fact should be proved, in order to subject the defendant in this suit.
    
      Daggett and JVathan Smith, contra.
    1. The parties to the decree and this suit, are virtually the same. Downey and wife, though made parties to the bill, were yet not parties to the decree; having complied with the demands of the petition before judgment.
    Though the name of the state is used in connection with that of Me dad Hotchkiss, he alone is the effective party. He can control the suit; his confessions may be admitted as evidence; and he, alone, is liable for costs.
    The reason why a verdict may not be given in evidence against one who was not a party, is, that he had no opportunity to controvert the facts, on which it was founded. This reason is not applicable to the present case; tor Nichols was a party to the bill in chancery, and to the decree.
    2. The facts of Hotchkiss's possession, and of the ¡knowledge of Nichols, were put in issue by the defendant’s plea to the bill, and found by thp decree. Whate-ley v. Menheim, 2 Esfi. 608, Autram y, Morewood, S East, 346.
    3. The decree, if admissible, is conclusive as to the facts found. Peake, 34. Esfi. Dig. 758. And it is no objection, in this case, that a part of the penalty to be recovered, is for the benefit of the public. Atcheson v. Eueritt, Cowfi. 382.
    
      
      
         Stal, Conn, tit. 97. c, 17.
      
    
   By the Court.

The question in this case is, whether the decree in chancery is conclusive evidence of the fact, that Nichols knew, at the time of taking the deed from Downey and his wife, that Hotchkiss was in possession of the land?

On examining the decree, it appears that the fact, to prove which the decree was offered, and which appears? in the terms of the decree, to have been found by the court, was not material in that case; and, although found, cannot be considered as put in issue on the bill in chancery.

Without determining, therefore, whether the decree of a court of chancery is evidence of the material facts found by the decree, in a suit between the same parties, regarding other rights; or whether such decree can be evidence of such facts, in an action for a penalty, it is sufficient to say, that this decree could not be evidence, in this case, for the purpose for which it was admitted. The court, therefore, advise a new trial.

New trial to be granted.  