dissented on two points. He held, 1. That the assignment was void, as being too general in its description of the personal property attempted to be assigned by it; and that it fell within the case of Drakeley v. Deforest, 3 Conn. Rep. 273.
2. That under the pleadings in this case, no evidence was admissible to prove the debts of Ross and Punderford, because such debts are not set forth with sufficient certainty in the replication ; — that the case of Isaacs v. Stevens, 13 Conn. Rep. 499., is in point, and a controuling authority on this question.
Hinman, J.The plaintiff in this case, for the purpose of proving the execution and delivery of the deed of assignment from Isaac Mix & Sons, offered in evidence, in connexion with the bond to the judge of probate, a copy of the probate records, where, as the plaintiff claimed, the deed had been lodged for record, and recorded. The defendants objected to the admission of this copy, on the ground that the original should be produced, or its non-production accounted for, by proof of its loss, or of its being in the defendants’ hands; in which last case, the plaintiff’ should give notice to the defendants to produce it. This objection appears to me to have been well taken. The rule is believed to be universal, which requires the best evidence, and excludes all secondary, until some ground is laid for its admissibility, by showing that the better evidence cannot be had. But here the plaintiff was allowed to prove the execution and delivery of a deed, not by its production, and proof of its execution, but by a certified copy from the probate records, and without any effort, or show of effort, to produce the original. If this can be done, it would seem that a copy from the town records would, in all cases, be evidence of the execution and delivery of the deeds recorded there.
I know it has been contended, that as this deed was given, and recorded, under the act of 1828 regarding the assignments of insolvent debtors, that act justifies us in considering *181the execution and delivery of it to have been judicially determined, by the court of probate, before it was recorded ; and - therefore, the probate record is conclusive upon the defendants. And if the decision of the court below can be sustained, it would seem to me to be upon this ground alone. But an examination of that statute has satisfied me, that no such judicial determination has been, or could be, had, by the court of probate ; nor was any such contemplated, by the statute. The first section of that act contains all that bears upon the question. It provides, that the deed “ shall, as against the creditors of the person making such conveyance or assignment, be deemed and adjudged fraudulent and void, unless the same be made in writing, for the benefit of all such creditors, in proportion to their respective claims, and be lodged for record in the office of the court of probate for the district where the assignor, or assignors, or some of them, reside ; and the judge or clerk of said court shall enter thereon the time when the same was received for record ; and the record shall bear the same date.” There is nothing in this section that countenances the idea that any judicial determination of the court of probate could be had, establishing the execution and delivery of the deed, before its being recorded. All that is done, is obviously ministerial, like the recording of a town-clerk. There is, indeed, great similarity in the two statutes, as to the rendering of deeds in the office of the court of probate, and the office of the town-clerk. The latter statute (page 390.) declares, that all grants and deeds of bargain and sale, and mortgages of houses and lands, shall be recorded at length, by the register or town-clerk, where such lands and houses lie ; and no deed shall be accounted good and effectual to hold such houses and lands, against any other person or persons but the grantor or grantors, and their heirs only, unless recorded as aforesaid ; and the register or town-clerk shall, on the receipt of any grant or deed of houses and lands, brought to him to record, note thereon the day, month and year, when he received the* same ; and the record shall bear the same date.” All that is to be done under either of these statutes, prior to the recording, is, to note upon the deed the time, when it was received, by the judge or clerk, under one, and by the register or town-clerk, under the other; and *182both acts then declare, and in the*same language, that thereupon “the record shall bear the same date.”
The case is unlike the proof and recording of a will in the court, of probate. The provision in the statute relating to wills, is entirely different; it is as follows : “ It shall be the duty of the executor or executors of any last will and testament of any person deceased, to cause such will to be proved and recorded in the office of the court of probate.” Here a judicial act is required before recording — the will must be proved. If the legislature had intended, that a deed should be first proved in the court of probate before recording, they would have said so, as distinctly as in the case of wills; and if they have not, I do not feel at liberty to supply an important provision, which they have seen fit to omit.
It is claimed, however, that these defendants have admitted the execution and delivery of the deed, in the bond which they have given ; and that this dispenses with the necessity of producing or proving it. But no admission, unless made with a view to the trial, can dispense with this proof. And this rulq, is so rigourously adhered to, that an acknowledgment, or an admission, in an answer in chancery, will not dispense with it. It is a rule applicable to every written instrument, which is attested by subscribing witnesses, when offered in evidence, either against the party making it, or a third person. 1 Sw. Dig. 757. Call v. Dunning, 4 East. 53. 1 Phil. Ev. 465.
And though this rule was relaxed in the case of Hall v. Phelps, 2 Johns. Pep. 451., in the case of the subscribing witness to a note ; yet, it is believed, that the rule established by that case, has never been extended beyond cases of negotiable paper ; and with respect to sealed instruments, the rule requiring the subscribing witnesses to be called, has been steadily adhered to. Fox v. Reil, 3 Johns. Rep. 477. Henry v. Bishop, 2 Wend. 575.
Nor are the defendants estopped, by any thing contained in the bond, from insisting on the proof demanded. For, assuming that the bond has admitted the execution and delivery of the deed in question; still, if the plaintiff intended to rely on that as an estoppel, he should have pleaded it. But by taking issue on the fact, whether there was any deed of assignment or not, he has waived the estoppel, and must *183prove his deed. 1 Sw. Dig. 622. Howard v. Mitchell, 14 Mass. Rep. 241. 1 Stark. Ev. 295. (ed. 1834.)
The rule is correctly given, by Judge Swift, in his Digest, p. 622., that “ when the matter to which the estoppel applies, is distinctly averred, or claimed, by one party, and the other, instead of pleading the estoppel, as he may in that case, takes issue on the fact, he waives the estoppel.” And this rule was recognized, by this court, in the case of Shelton v. Alcox, 11 Conn. Rep. 250.
Can it be said, that the plaintiff’ had no opportunity to reply to the defendants’ plea, denying the execution and delivery of this deed, by setting out the bond by way of estoppel? In Shelton v. Alcox, the Chief Justice says: “If he (the plaintiff) had set out the award, and demanded they should be estopped by it, it is apparent it would not have answered the plea; because an award that Alcox had no title in June, 1830, is no answer to a plea that he had title at the time of the plea pleaded.” tie, therefore, correctly concludes : “ It is not very easy to see, then, how the plaintiff, in his replication, could have had advantage of the estoppel.” But if the plaintiff is right in this case, in supposing that the deed is recited in this bond, would it not be a conclusive answer, by way of estop-pel, to the plea denying the execution and delivery of it X If so, and it seems to me to be so, and if this court was right in Shelton v. Alcox, when they say, “ the rule is well established, that a party neglecting to plead an estoppel, cannot take advantage of it,” then it would seem to follow, that the plaintiff, having taken issue on the execution and delivery of this deed, must prove it, before he can call upon the defendants to account for the property claimed to have been assigned by it; or if he relies on the estoppel, he must plead it.
I think, too, the objection was well taken, that, even admitting the certified copy to be proof of the execution and delivery of the original, it was further necessary to show the power, under which Isaac Mix, sen., of New-Haven, executed the instrument in the name and for Isaac Mix, jr., of New-York. That would have been necessary, had the original been produced and proved ; and surely the copy cannot take a higher place in the scale of evidence than the original itself. This objection was also overruled ; but the motion finds, in connexion with it, certain facts, which seem to have been *184re^e^ uPon as evidence, to shew the authority of one of the —partners to make the deed, for, and in the name of, the other; namely, that “ it was admitted by the parties, that at the time 0f n-iaiúug said deed of assignment, Isaac Mix, sen., Isaac Mir, jr., and Thomas Mix, were partners, carrying on the business of carriage-makers, at New-Haven, under the name of Isaac Mix & Sons, and had an establishment at New-York for the sale of their carriages, where Isaac Mix, jr., had, for several years, resided, having charge of that establishment.” Waiving the question, whether an assignment under the statute of 1828, is within the scope of partnership business, so that a partner here could assign for his partner in New-York, there is still a difficulty, which would seem to be insuperable. The deed in question is a sealed instrument. The partner here, therefore, has not attempted to execute it, as a partner. He has not signed the co-partnership name; but each partner gives his separate signature, annexes to it a separate seal, and solemnly acknowledges it as his deed. It cannot be necessary to refer to authorities, to shew, that one partner cannot bind the others, by deed. How, then, could this deed be complete and a valid instrument, without a power of attorney from Isaac Mix of New-York to Isaac Mix of New-IIaven, to execute it 1
There is another question in this case, which I was at first inclined to think correctly settled, by the judge at the circuit; as it seemed to come within the principle of our decision, at the present term, in the case of Rowland v. Isaacs, in Fair-field county, (15 Conn. Rep. 115.) But a more careful examination of that case has convinced me, that it is clearly distinguishable from this ; and if so, it would seem that the principle recognized by this court, in the case of Isaacs v. Stevens, 13 Conn. Rep. 499., not only required of the plaintiff a more particular and perfect allegation, in his replication, of the non-payment of the Punderford and Ross debts ; but, as the other breaches were well assigned, and the defendants could not, therefore, successfully demur, or move in arrest, the objection they interposed to the evidence offered to prove those debts, ought to have been sustained.
Until it is so decided, by this court, I cannot recognize the doctrine, that on every technical breach of a probate bond, we are to allow the jury to pass upon all the unliquidated *185claims, not only of heirs, but of all persons claiming to be creditors, or in any other way claiming an interest in the estate. And I do not see how this result is to be avoided, upon the principle for which the plaintiff contends.
I do not understand the plaintiff as claiming, that the nonpayment of the Punderford and Ross debts, is so alleged in the replication, and their nature and character so set forth, that had no other breach of the condition of the bond been assigned, he could recover upon this alone. But he insists, that the evidence on that point, did not come in to prove a breach, but only as a rule of damages.
Now, it is difficult for me to see, how there can be a rule of damages for that condition of a bond, which has not been broken. The defendants have pleaded performance generally of the condition of the bond. The plaintiff replied, setting out the breaches on which he intended to insist. And an insufficient and imperfect assignment of a breach, is the same as if none had been made, or attempted.
Suppose, then, an administrator neglects, wdthin the two months allowed by law, to return an inventory; such negligence is by no means an uncommon occurrence ; can any, and if any, every, creditor, or person who claims to be a creditor, sue the bond, and, without assigning the non-payment of his debt, as a breach of the condition, nevertheless prove his debt, and recover, as a rule of damages, under the assignment of not having made an inventory within the time ? To allow this, would seem to me to be introducing a practice, as illy calculated to do justice between the parties, as it would be embarrassing to heirs.
But have we sanctioned such a practice, by our decision of the case of Rowland v. Isaacs ? I think we have not. In that case, the defendant, instead of pleading, as he might have done, performance generally of the condition of the bond, set up a special justification for having broken that part of it, which required him to settle the estate, and pay over to the heirs their shares of it, viz. that he had expended the whole estate remaining after the payment of the debts and charges, in the necessary maintenance and education of the two minor children, who were the only heirs, and, of course, the only persons interested in the distributive shares, to recover which the suit was brought. This justification was traversed. By *186these pleadings, then, the breach of the bond, in this particu- • lar, was confessed. The defendant could not justify, without admitting a breach. His plea was, therefore, by way of confession and avoidance. Upon this state of the pleadings, the defendant claimed, that if the jury should find against him, still the plaintiff could only recover nominal damages. There was no question whether the breach was well assigned. Indeed, there was no assignment of a breach. The defendant admitted a breach ; and the jury, having negatived his attempted justification, the only question there was, or could have been, was as to the damages. And we held, and I think correctly, that the plaintiff should recover his actual damages, and not nominal damages merely. The defendant, in that case, was in no better condition than if he had been defaulted, with a rule to be heard in damages.
But no such question arises in this case. Here, the defendant admits nothing by his plea. He says generally, that he has performed the condition of his bond. This has thrown upon the plaintiff the burden of specifying the breaches on which he intends to insist; and if there are any that he has not seen fit to specify, he waives them ; the general principle being, that a party who puts himself on one issue, admits all the rest. Corsbie v. Oliver, 1 Stark. Ca. 76.
The breaches should also be assigned with the same certainty that is requisite in a declaration. This the plaintiff has attempted to do. He has assigned several breaches; and among them, is this, that the defendants have not paid either Punderford or Ross; who, the plaintiff says, are creditors of Isaac Mix & Sons. But the nature and character of these debts are not given. And, in the language of this court, in Isaacs v. Stevens, upon a similar replication, where the nonpayment of a debt was assigned in nearly the same language as in this case: “ I do not see how this replication cán be delivered from this infirmity. Nothing more is alleged in regard to these debts, than their amount.”
I, therefore, come to the conclusion, that the superior court erred in admitting this testimony, as well as in the ruling upon the other points which I have examined; and upon these grounds alone, I think a new trial ought to be had.
Motion in arrest overruled;
New trial not to be granted.