
    James H. Hoyt and others vs. William L. Smith and another.
    H and others furnished S with an outfit for going to California and digging for gold for their joint benefit, he binding himself to pursue the business for two years. After pursuing it for a time he abandoned it with their consent, and went into other business for their joint benefit, in which he made large profits within the two years. They afterwards brought a bill in equity against him to compel him to account for the profits of the gold digging, making N also a defendant, and charging him with having received a large amount of money from S, as the profits of the business, and with having conspired with S to defraud the plaintiffs in the matter. After the case had been heard by a committee and the facts reported, the. superior court allowed the plaintiffs to amend their bill by inserting allegations with regard to the business of lightering, in which S had been engaged after leaving that of gold digging, and with regard to the profits received therefrom. The principal facts with regard to the lightering business had been found by the committee on evidence admitted without objection. The defendants claimed thereupon a further hearing upon all facts newly set up by' the amendments, but the superior court, after inquiring into the facts with regard to the former hearing, granted a new hearing only with regard to material facts not already found by the committee. Held that the question as to such re-hearing was one which addressed itself wholly to the discretion of the superior court, and that the exercise of that discretion could not be revised by this court.
    It seemed however, so far as this court had the means of judging, that the course taken by the superior court was proper.
    Held also, that the consent of the plaintiffs to the abandonment of the business of gold digging, was a sufficient consideration for the promise of S to account for the profits of the lightering business.
    It appeared that Ñ, while the suit was pending but before the amendments were made, had paid over to S the money in his hands derived from the lightering business, the amount of which was found by the court upon the new hearing. Held that he was still liable to account to the plaintiffs therefor, and that a decree ought to be passed against him compelling him to pay over to the plaintiffs their share of the money in his hands at the time the suit was brought.
    The parties having made conflicting claims with regard to the costs of 'the case, this court declined to advise the superior court thereon, the allowance of costs in suits in equity being always discretionary, and the court below having a better opportunity to inform itself with regard to the circumstances affecting the question.
    Bill in equity. The facts of the case are stated in former reports of it, 27 Conn. R., 68, 468. The superior court having, under the advice of this court, allowed certain amendments which are stated in the latter report of the case, (p. 469,) the plaintiffs moved for a decree in their favor, claiming that the new allegations of the bill had already been found to be true by the committee upon evidence received at the time of the hearing without objection. The defendants filed a further answer, denying the allegations of the petition, and claimed that a full re-hearing of the case upon the facts in issue should be allowed, or, if not a full hearing yet a hearing upon all the new allegations of the bill. The court, after inquiring into t'he [ *468 ] facts with regard to *the\former hearing, allowed a new hearing only with regard to material facts not already found by the committee; to which ruling the defendants excepted.
    The new hearing was had before the court, and on it the following further facts were found: — That Smith, while in California, about the first of January, 1850, under the belief that he could not longer pursue the business of gold digging in California with profit to himself or the plaintiffs, by agreement with them changed his business into that of lightering, and continued in that business in California during the remainder of the two years covered by the contract, and so long as to acquire in the business of lightering the sum of $9,000 as' specified in the report of the committee; that the amount so made was to be divided between the parties to the original agreement according to the terms, of that agreement; and that it was so made by means of the money advanced to Smith by the plaintiffs, which had enabled him to go' to California with provisions to sustain him there for two years, and which, with such money as he had procured by gold digging, enabled him to engage in the business of lightering ; that there was on the 1st day of February, 1852, and at the time the petition was brought; in the hands of the respondents, moneys belonging to the plaintiffs, so made and procured by Smith, amounting to the sum of $815.40 ; and that while the suit was pending, but before the amendments were made, Newman the other defendant, paid over to Smith all the money which he had received from him of his acquisitions in California. i '
    The respondents claimed that no 'consideration was shown for the contract introduced by the amendments, and the respondent Smith thei-efore insisted that the contract was void; the respondents also insisted that no decree could be made against either of them, because the contract introduced by the amended petition was a contract to which the respondent Newman was not a party, whereas-he was a party to the contract on which the original petition was brought; and Newman claimed that no decree could be made against him, because lie .had paid over the money in his hands before the amendments were made. [ *469 J *The plaintiffs claimed a deci’ee in their favor, and alsp full costs for all the time the case had been pending in court, except for the time when costs were allowed against them on allowance of the amendment to the original petition. The respondents claimed a decree in their favor, witlx the allovvanee to them of full costs-, except the costs paid them on the amendment of the petition. They also claimed that, if a decree should be made in favor - of the plaintiffs, no costs should be taxed, or, if any, that costs accruing previous to the amendment of the petition should not be taxed against them.
    The question, as to what decree should be passed in the case,' and as to the taxations of the costs of the case, were reserved for the advice of this court.
    
      Dutton and Ferris, for the plaintiffs,
    
      Hawley and Loomis, for the respondents.
   Sanforb, J.

. This case, which has already been three times before us, is now presented (we hope for the last time,) for our advice in regard to a final decree.

The original contract between these parties -was, that Smith, one of- the respondents, in consideration of the sum of twelve hundred dollars advanced to him by the petitioners and Newman, the other respondent, should go to California, and dig gold there, for the joint benefit of all the contracting parties, for the period of two years, and should from time to time remit to the petitioners and Newman the proceeds of his labor, three quarters of which proceeds were to be held for the benefit of said Smith, and the residue to belong to the petitioners and said Newman. Under that contract Smith, in the month of April,. 1849, commenced digging for gold in the California mines, and for several months prosecuted the business with diligence and assiduity, but not being very successful, and having met with some losses, he became satisfied that he could not pursue that business with profit, and, about the first of January, 1850, by agreement with the ^petitioners, and with [ *470 ] their consent and approbation, he changed his business from that of gold digging to that of lightering, and continued in' said business of lightering in California during-the remainder of said two years, and made thereby the sum of nine thousand dollars ; and the superior court finds, that said sum of nine thous- and dollars was made and procured by said Smith by means of the money advanced to him by the petitioners, and was to be divided between the parties according to the terms of said original agreement; and that while said Smith remained in California, he secretly remitted to said Newman about six thousand dollars of the avails of his -said business, and, after his return from California, secretly placed. in said Newman’s hands the further sum of two thousand dollars, part of said sum c-f nine nine thousand dollars obtained as aforesaid ; the 'deposit of all which money in said Newman’s hands, and his receipt of it, -were by said Smith and Newman designedly concealed from the petitioners, with intent to prevent them from claiming or obtaining any share of said money so obtained by said Smith in said business ; that said Smith, before the commencement of this -suit, had paid to the petitioners the amount which they had advanced to him, and interest thereon, being $1,209.60; and that, at the time of the commencement of this suit, on the first day of February, 1852, “ there remained in the hands of the respondents, of monies belonging to the petitioners so as aforesaid made and procured by said Smith,” eight hundred and fifteen dollars and forty cents.

• .Upon these facts thus found by the superior court, the right of the petitioners to a decree in their favor for the amount so found to be in the respondents’ hands, with interest thereon from said first day of February, 1852, seems to us undeniable.

It is however claimed that, as the whole sum of nine thousand dollars was acquired in a business not contemplated or provided for in the original contract, upon the making of which contract the entire consideration on the part of the petitioners [ *471 ] was advanced to said Smith, the new contract *found to have been made upon the change of said business, was without consideration and therefore void. But, by the terms of the original contract, Smith was bound to continue digging for gold the whole period of two years, whether successful or not. The agreement of the petitioners then, to relinquish their right to his services in gold digging, was a good consideration for his agreement to serve them in the business of lightering instead.

The liability of Newman arises from his fraudulent reception and concealment of the money to which the petitioners were entitled, and his" possession of it at the time the suit was commenced. And, whether he returned it all to Smith his co-conspirator, after the commencement of the suit, or not, is of no importance. The rights and liabilities of the parties to a suit, are fixed and to be determined by the state of facts as they exist when the suit is brought, and one defendant at that time in possession of the subject matter of the litigation, can not exonerate himself from liability by transferring that possession to a co-defendant afterwards.

That the amendment was properly allowed, was determined by this court at a former term. And the allegations introduced by that amendment are now to be taken as part of the original bill, and to have the same effect, in the ultimate determination of the cause, as if they had been originally inserted. Windham v. Litchfield, &c., 22 Conn., 226.

Again, it is claimed that the superior court erred in refusing to the respondents a re-hearing of the whole cause, after the amendment had been made. But we think that a question to be addressed only to the judicial discretion of the superior court. We will however remark with regard to it, that, so far as we can discover, that discretion was exercised by the superior court wisely and properly ; but, whether it was or not, this court has no jurisdiction to revise the decision. It is obvious that whether any, and, if any, to what extent a new hearing was rendered necessary by the amendment, could be ascertained only by an examination of the report of the committee, and an inquiry into the manner in which the former hearing had been conducted before that *committee. Such inquiry [ *472 ] could be made only by the superior court. This court has neither the jurisdiction to make the inquiry, nor the means of making it. See Camp v. Waring, 25 Conn., 528.

The claims of the parties for costs also, must be decided by the superior court. Costs in equity are always discretionary, and are allowed or not, in whole or in part, as the substantial equities of the case require, the court being guided, not by any positive and unyielding rules of law, but by the ever varying circumstances of each particular case. Those circumstances can be, before this court, but partially developed, while before the judge who tries the cause they are necessarily all disclosed, and by him can be duly weighed and justly appreciated. Upon this question, therefore, we forbear to give to the superior court any advice.

The decree of the superior court should be in favor of the petitioners, to recover of the respondents, Smith and Newman, the sum of eight hundred and 'fifteen dollars and forty cents, and interest thereon from the first of February, 1852; the question as to the costs to be decided by the superior court.

In this opinion the other judges concurred.

Decree for plaintiffs advised.  