1. We cannot say, that the court below erred in refusing to receive the defendants’ plea in abatement, at that stage of the cause, at which it was offered. Such pleas are never favoured by courts.
At an early period in the history of our judicial proceedings, a rule was adopted, that pleas in abatement in the county and superior courts, should be filed by the opening of the court in the afternoon of the second day of the session. 1 Root, 564. And at a later period, this court refused to receive a plea in abatement presented in the afternoon of the third day of the term. Witter & ux. v. Mott & al. 2 Conn. R. 67.
*511Although no time has been limited, either by statute, or by any rule of court, in which such pleas shall be presented, in cases before justices of the peace, and other inferior tribunals, yet it is obvious, that they ought not to be received, in any stage of the trial. The same reason there exists for requiring them to be presented at an early period, as exists in the higher courts.
Had the plea been presented in proper time, the court would have been bound to receive it, and their refusal would have been error. But in the present case, the defendants neglected to present the plea until after the jury had been called, they had challenged two of the jurors, and their places had been supplied by others. Under such circumstances, we cannot say that the court erred in considering that the defendants, by their delay, and by challenging jurors, had waived all matters in abatement.
2. But we think the court erred, in admitting, in evidence, the entry in the blotter, unaccompanied by the testimony of the clerk, who made it. He was living, and in the immediate vicinity; and no reason is assigned why he was not called to explain the circumstances under which it was made. His testimony would clearly have been the better evidence.
The admission of the entry, unsupported by any oath, was in violation of a well established rule, and does not fall within any of the exceptions, which have ever been recognized. The authorities upon this subject are so numerous and decisive as to render any argument or illustration unnecessary. Cooper v. Marsden, 1 Esp. R. 1. Doe d. Reece v. Robson, 15 East’s R. 32. Doe d. Patteshall v. Turford, 3 B. & Adol. 890. (23 E. C. L. 212.) Poole v. Dicas, 1 Bing. N. C. 649. (27 E. C. L. 529.) Marks v. Lahee, 3 Bing. N. C. 408. (32 E. C. L. 181.) Newell v. Roberts, 13 Conn. R. 63. Livingston v. Tyler, 14 Conn. R. 493. Smith v. Vincent, 15 Conn. R. 1.
We think also, that the instruction given by the court to the jury, relative to the possession of the complainants, had a tendency to mislead them.
The great question, on the trial, was, whether the complainants were in possession of the premises, at the time of the alleged entry. The only witness upon this subject, was Wellington Lee, who testified, that he entered into posses*512sion, as the agent of Stearns & Sturges, who subsequently conveyed their interest to a joint stock company in the city of New-York, or to the complainants; and that he afterwards continued in possession, as the general agent of the company, or of the complainants.
From the testimony, therefore, it is entirely uncertain, whether the conveyance was made to the company, or to the complainants; or whether the witness was the agent of the one party, or the other. There was no written evidence of the conveyance. The doubt in the mind of the witness upon the subject, might have arisen from the circumstance that the complainants were the principal officers of the company, although not constituting all the stockholders; and the witness might not have known whether, in the business connected with the occupation of the premises, they were acting in their official capacity, or as private individuals.
At any rate, there was no evidence that the complainants were ever in possession of the premises, unless through the witness, as their agent. If he was not their agent, but the agent of the company, then it is clear, they could not sustain their action.
The defendants, proceeding upon the assumption that the company was the party in possession, claimed, that the complainants could not maintain their action in their own names, but that the suit should have been brought in the name of the company, or in the names of the individuals composing the company.
But the court, disregarding their claim, informed the jury, that the possession of Lee, as the general agent of the complainants, was a sufficient possession to entitle them to a verdict, and that they could sustain their action in their own names.
The charge thus given, without any reference to the defendants’ claim, or to the question which of the two parties was in possession, was calculated to withdraw the attention of the jury from that question, and induce the inference that the possession of Lee was sufficient to entitle the complainants to recover, irrespective of the question whose agent he was.
Indeed, the court can hardly be justified in saying to the jury, that the complainants could sustain their action, inas*513much as they had not done what it was incumbent upon them to do—prove that their possession had been invaded, by the defendants. The burden of proof was upon them; and the fact was not established, by testimony equally balanced. Scovell v. Kingsley, 7 Conn. R. 284.
The view which we have taken of the case, renders unnecessary a consideration of the other questions, presented in the assignment of errors. Our advice to the superior court therefore is, that there is error in the judgment complained of.
In this opinion the other judges concurred.Judgment reversed.