author: Storrs, J.

text:
    Simons vs. French.
    The public ia the owner in fee of the flats adjoining an arm of the sea, over which the tide ebbs and flows, up to high-water mark, such title being vested in the public for purposes of navigation and commerce.
    The owner of upland adjoining such flats is entitled, by virtue of such ownership, to the exclusive right of wharfing out over such flats in front of his upland to the channel of the arm of the sea, subject to the rights of the public. This right of wharfage is not, however, an inseparable incident of the title to the upland, so that a conveyance of the upland necessarily conveys the right of wharfage, or so that the right of wharfage may not be conveyed without the upland.
    And the question whether such right is conveyed by a deed of such upland, depends on the intention of the parties, to be ascertained from the language of the deed.
    Therefore, where a warranty deed of a piece of such upland, extending to such flats, described the land conveyed as lying within certain lines therein defined, which were to extend so far as to enclose twenty-five rods of land, and did not bound said land on any specified object, and contained also a release of a specified portion of the flats adjoining ; it was held, that the rights of the grantor in the flats not falling within said lines and not specifically described in said deed, did not pass thereby.
    As to the rule by which the rights of wharfage are to be determined among different owners of the upland, in the case of a cove, or indentation of the shore. Qu.

    This was an action of ejectment, brought to recover possession of a piece of mud flats, adjacent to an arm of the sea and below high-water mark, on which the defendant had erected a shop and wharf.
    The case was tried on the plea of the general issue closed to the jury, at the term of the superior court, holden in the county of Fairfield, in October 1856.
    On the trial both parties claimed title to the demanded premises as incident to certain uplands belonging to them respectively. It appeared that the mud flats were a basin or cove setting into the land from the Pequonnoek river, near its mouth at the city of Bridgeport, and bounded by a semicircular sweep of upland. The plaintiff claimed that the rule of law determining the rights of the respective owners of the upland, to occupy the mud flats of the basin for purposes of wharfage, was, that the whole front of the upland should be first ascertained, measuring the front of each proprietor, not by its indentations, but by a base line running from corner to corner, and that the whole right of wharfage should be divided among the owners of the upland according to their respective proportions of the whole front, such right of wharf-age extending by lines determined by the application of this principle, into the cove and not necessarily towards the channel; and claimed that the application of this rule would bring the whole or a part of the demanded premises within her line.
    The defendant claimed that the demanded premises lay directly between his upland and the channel of the river, and that he had a right to wharf out to the channel; and that the right of wharfage claimed by the plaintiff would not extend from her land towards the channel, but parallel with it, and that such right could legally extend only towards the channel.
    The plaintiff claimed under the will of Samuel Simons and the distribution of his estate, and claimed no other right than that derived therefrom. The defendant claimed that the plaintiff had no title to the disputed premises, by reason of a conveyance made by the said Samuel Simons, in his lifetime, to Zerah Weed and others, of a small piece of the upland extending to said flats, which conveyance the defendant claimed carried with it, as incident to the land described in the deed, all the right of the said Samuel in the flats between the land described and the channel of the river, and which he claimed included the demanded premises. The plaintiff claimed that even if this effect should be given to the deed in question, a portion of the demanded premises would remain unaffected ihereby, and her title to such portion would be good, if the court should sustain her claim before stated with regard to the apportionment of the rights of wharfage among the proprietors of the upland.
    The deed to Weed and others was a warranty, and described the premises conveyed as follows : “ a certain tract of land situated in said Bridgeport, and bounded as follows : beginning seventy-five feet easterly oftheeast side of my sawmill building on the edge of the wharf, and running from that point in the direction of the wharf-log and wall directly westerly within six feet of the main track of the railroad; thence northerly the same distance from the railroad track, so far that a line run easterly so far as to be opposite at a right angle, and three and a half rods from the place of beginning, on the edge of the wharf, will enclose twenty-five rods of land. To the land and fiats on which the saw-mill stands, I quit all right and title, and also all right to the water power passing through the culverts of the railroad, and of all the flats and land I own embracing said culverts, and all the land between the saw-mill and railroad.”
    The parties requested the court to charge the jury according to their respective claims.
    The court instructed the jury that the deed of Samuel Simons to Weed and others, conveyed to the grantees not only the land described in the deed, but all the rights of the said Samuel in the mud flats which he held at the time as incident to the land described in the deed, and that the plaintiff had in consequence no title to that part of the disputed premises which the said Samuel had so owned as incident to said twenty-five rods.
    The court further charged the jury that the right of each proprietor, exclusively, to wharf out, in front of his own land, in public waters, subject to all public right, was the clear law of this state, but that it did not follow from this that each proprietor around a cove or basin of public water had a right to wharf out the whole extent of the cove, orto any absolute extent, irrespective of equal rights and necessities of other proprietors on said water; and that the true rule was in this case, as in all other cases of common rights or private rights which if extended without limit would come in conflict, that each one must, under existing circumstances, have a fair, just and reasonable enjoyment of his right of wharfiug in front of his own land ; and if applying this rule in the present case, it should appear that the defendant’s placing his shop and wharf where they are situate, was but a fair, just and reasonable enjoyment of his right to wharf in front of his land, considering the same fair, just and reasonable right of the plaintiff in front of her land, the defendant would not be liable; but otherwise he would.
    The jury having returned a verdict for the defendant, the plaintiff moved for a new trial, for a misdirection, and the case was reserved for the advice of this court.

      Hawley and Dutton, in support of the motion.
    I. The court put a wrong construction on the deed from Simons to Weed and others. The grant of the flats under the saw-mill shows the intention of the grantors not to convey the residue of the flats. Expressio wnius, exclusio alterius. The upland can be conveyed without the flats. Nichols v. Lewis, 15 Conn., 137. Storer v. Freeman, 6 Mass., 435. Jackson v. Hathaway, 15 John., 447.
    II. The rule laid down by the court regarding the ownership of the flats was erroneous.
    1. Such a rule would be very inconvenient. It furnishes no definite mode of ascertaining the ownership of the flats.
    2. No such rule has ever been adopted by any court.
    3. The rule adopted by the superior court would make every proprietor’s title to flats, a question of fact for the jury to decide, instead of being, as it should be, a question of law.
    4. The charge of the court implies that the right of an adjoining proprietor to flats is liable to be changed by circumstances.
    5. The rule for the division of flats is either that claimed by the plaintiff on the trial, (Angelí on Water Courses, sec. 56,) or that the flats should be divided by lines drawn from the ends of the shore line of each proprietor to the channel, giving to each a line on the channel proportioned to the length of his line on the upland. Rust v. Boston Mill Corporation, 6 Pick., 158. Ashby v. Eastern Railroad Co., 5 Met., 368.

      Loomis and Warner, contra.
    1. The charge of the court, that the deed from Samuel Simons to Weed and others extinguished the right' of the grantor to wharf out to the extent of the upland described in said deed, is correct. 1 Sw. Dig., 109. Chapman v. Kimball, 9 Conn., 41. E. Haven v. Hemingway, 7 Conn., 186.
    2. The record proves that the plaintiff had no right to wharf out upon the locus in quo; said deed from Samuel Simons to Weed and others, conveying away all his interest in his upland fronting southerly on the flats lying west of a point seventy-five feet east of the saw-mill described in said deed. Stiles v. Curtis, 4 Day, 329. 3 Kent Com., 432, 3. Cortelyou v. Van Brandt, 2 Johns., 357. Chatham v. Brainard, 11 Conn. R., 60. Chamberlain v. Pendleton, 13 Conn. R., 23. Reed v. Leeds, 19 Conn. R., 182.
    3. As to any other upland to which the locus in quo could be incident, the jury have found that none such belonged to the plaintiff.
    4. There were no premises before the jury, for the application of the rule claimed by the plaintiff, and therefore there was no necessity or propriety for the judge to charge the jury according to said claim.
    5. The principle laid down by the court is correct, that in every case the right of the parties must be restricted to what is just and reasonable.
   Storrs, J.

From the best consideration which we have been able to give to this case, we are of opinion that the court below erred in instructing the jury, that the effect of the deed from Simons to Weed and others was to deprive said Simons of any right which he then had, to wharf out over the premises demanded. This is clearly so, unless the right to wharf out is inseparable from the upland, so that one can not be conveyed without the other. If we suppose that the demanded premises, instead of flats, were not of such a character as to be governed by any peculiar considerations applicable to flats, there could be no doubt that the effect of the deed to Weed and others would be merely to convey to the grantees the land defined by the lines or limits of that deed. The descriptive part of that deed is as follows: “ Beginning seventy-five feet easterly of the east side of my saw-mill building on the edge of the wharf, and running from that point in the direction of the wharf log and wall, directly westerly to within six feet of the main track of the railroad; thence the same distance from the railroad track so far that a line run easterly so far as to be opposite at a right angle, and three and a half rods from the place of beginning, on the edge of the wharf, will enclose twenty-five rods of land.”

It will thus be seen that the premises are not described as abutted or bounded, upon any objects or proprietors, but are simply described as lying within certain lines therein defined, and particularly designated. The deed has been likened to one in which land has been described as bounded on specified objects, such as a highway or wall, in which case, if nothing appears to show a different intention, the land would extend to the middle of such wall or highway. But there being no object upon which any portion of this land is abutted or bounded, there is no likeness in the present case to those which have been alluded to. This is like a deed of a piece of land precisely four rods square, on the north-west corner of a rectangular lot, which of course conveys only the land embraced within lines which would mark out such a quantity of land. And that it was the intention of the grantor in this case, merely to convey the land defined in the deed, and not to extend the rights of the grantees over the flats, between that land and the harbor, is evident from the fact that the grantor adds that he releases all his right and title to the land, and flats, on which the saw-mill stands, which saw-mill extends southerly somewhat beyond the piece of land described in said deed, and to the water power passing through the culverts to said mill, and to the flats and land embracing said culverts, and to the land between the sawmill and railroad; none of the land to which he thus releases his right, being embraced by the premises demanded.

When, therefore, Simons thus particularly defined in his deed the property which he intended thereby to convey, it would be an unwarrantable stretch of construction to hold that he intended to convey anything beyond. The specific designation in the deed of the land conveyed, is tantamount to an express exclusion of any other property. Or in other words, there is an absence of any conveyance of property, other than that explicitly described.

The question, then, is whether it is competent for the owner of a piece of upland, to which is attached the right of wharfing out in front of it, over flats adjacent thereto, on which the tide ebbs and flows, and lying between said upland and an arm of the sea, to convey the upland without said right, or the right without said upland. That this may be done we do not entertain a doubt.

In England, the king is the proprietor of the land covered by navigable waters, where the tide ebbs and flows, to high-water mark; which, however, he probably owns as a trustee for the public, for purposes of navigation and commerce, and as such, has the right to convey his proprietary interest, subject to such rights of the public.

In Connecticut, it is now settled that the public, representing the former title of the king, is the owner in fee of such flats up to high water-mark, but that the owner of the upland adjoining such flats becomes entitled, by virtue of his ownership of the upland, to the exclusive right of wharfing out over them, in front of said upland, to the channel of an arm of the sea adjoining such flats. This right of wharfage— which, if in England it were vested in an individual, would be a franchise, being a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject — is with us, in the owner of the upland, a franchise, by the definition of that term as applicable here, and constitutes, like other franchises, a species of property, which, like other property, is alienable by the owner. We do not consider that such right of wharfage, or franchise, is an inseparable incident or accessory to the upland, in such a sense that it inheres in, and is a part of, such upland itself, so as to be within the operation of the maxim, “ Accessorium non ducit sed sequitur suum principóle,” and so, therefore, that a grant of the upland necessarily conveys said franchise. It is true that such right of wharfage originates in, and is derived from, the ownership of the adjoining upland, and it was deemed by our courts to be attached thereto, undoubtedly from motives of general policy and convenience, and perhaps because in the early settlement of the state the establishment of such a principle would be an inducement to persons owning upland, to erec-t on the adjoining flats, wharves, and other conveniences for the accommodation of commerce, when the colony was unable to build them at its own expense. But this right, being once acquired by this, or whatever means, becomes in our view as separable from the ownership of the adjoining upland, and consequently as alienable by itself, as any other property, right, or franchise. And we can not perceive that a conveyance or reservation of it, by the owner of the upland, is not as valid as the conveyance of a similar right by the king in England to one of his subjects; nor why the exclusive right to erect wharves upon a piece of flats before it has been used for that purpose, is not as alienable by the owner of such right, as it would be after a wharf had been erected upon it; and in the latter case, there is no doubt that the wharf might be conveyed by itself, like other property, or if unconveyed by the owner in his lifetime, would descend to his heirs like other real estate.

It is obviously of no consequence in itself, as it respects the public, whether the right of erecting and maintaining wharves upon such flats, be vested in the owner of the adjoining upland, or in any other person. The public in either case are equally secured, as it respects their right of navigation and commerce. Nor do we perceive any principle of public policy whatever, which requires that such right should be inseparably united with the ownership of the adjoining upland.

The principle which prevails in England, that has been mentioned, in respect to the exclusive ownership of the king in flats, and which is there vested in him as being promotive of the interests of navigation, shows that no public inconvenience can arise from vesting this franchise in a person who is not the owner of the adjoining land.

In Massachusetts also, it is settled that the upland and the flats may be conveyed separately. It is true, that there, by virtue of an ancient colonial ordinance, or of an immemorial usage, the owner of upland owns the fee of adjoining flats over which the tide ebbs and flows, to a distance not exceeding one hundred rods from the upland. And being so the owner in fee of said flats, there is no more legal objection to his disposing of any portion of them, than of any other land. But we adduce it to show that there is nothing in the nature or character of such flats, and no principle of public policy, which forbids their practical separation from the upland to which they are adjacent, or consequently the independent exercise, by the owner of them, of any peculiar rights to which they may be made subservient.

And in point of fact, we know that nothing is more usual in this state, than the ownership of wharf property, disconnected from that of the upland adjoining. Upon this point, therefore, we are of opinion that there was an error in the charge of the court below, and that the plaintiff is entitled to a new trial. See 3 Kent Com., 421, 5th ed. Bowman's Lessees v. Wathan, 2 McLean R., 376. Charles River Bridge v. Warren Bridge, 11 Pet., 638. Cincinnati v. White, 6 Pet., 431. Barclay v. Howell, 6 Pet., 498. New Orleans v. U. States, 10 Pet., 662. Gould v. Hudson River R. R. Co., 2 Selden, 522. 6 Dana, 43.

A rule was laid down by the judge below to the jury, prescribing the mode of determining the limits within which the owners of upland have a right to wharf out in front thereof, on flats, over which the tide ebbs and flows, lying between such land and navigable arms of the sea. We refrain from determining what that rule in any ¿ase should be, because this case is so presented to us, on the motion, that it is impossible to foresee that any particular rule which we might adopt, would be applicable to the facts as they may ultimately appear on a future trial. We prefer that another trial should disclose, more definitely than the last, the shape of the upland flats, and arm of the sea, and their relative position to each other.

We would only remark in conclusion, that although the general right of a proprietor of upland to wharf out in front of such land, in public waters, was correctly stated in the charge below, the rule, which was then laid down for the purpose of regulating the exercise of such right, was not, in our opinion, stated with sufficient definiteness and precision, and left it too much to be determined, according to what might, in the opinion of the jury, be a fair, just and reasonable enjoyment of the right in each particular case. Perhaps, as the case was presented on the trial, it was not practicable for the judge to lay down a more definite rule on the subject. Still, difficult as it is, and has been found to be in many cases, it is important that a precise, intelligible and definite principle should be established, by which each case of this description, to which it is applicable, shall be governed.

In this opinion, Hinman, J., concurred.

Waite, C. J. The plaintiff can not sustain an action of ejectment to recover possession of fiats alone, adjoining navigable rivers, and arms of the sea, situated below low-water mark, unless such flats have been redeemed from the sea, by the erection of wharves, piers, or something of the kind thereon. The possession in such case is not in any private individual, but in the public. The ownership of the land adjoining the flats may, by our law, confer the right of wharfing in front of that land, but gives no possession of the flats to the adjoining proprietor. He may, by proper process, prevent an encroachment upon the flats in front of his land, which may affect his right of wharfage, but he can not sustain an action of ejectment to recover possession of that, of which by law he can have no possession.

In the present case, the only property which the plaintiff seeks to recover, and the only property which can be recovered in the present action, are the shop and pier erected by the defendant, upon the flats in front of his own land; and to these erections, in my opinion, she shows no title.

Simons, her husband, in his lifetime, by his deed, conveyed to Weed and others, not only the land therein described, but as incident to that grant, the right of wharfage upon the flats adjacent to that land, and of course there remained in him no interest in .these flats, which the plaintiff could subsequently take, either under his will, or by the distribution of his estate.

And as on the trial she claimed no other title except such as she had thus acquired, I see not why the decision of the judge on the circuit was not right, that she had failed to show any title to the shop and pier erected by the defendant.

For these reasons, I see no cause for disturbing the verdict, or entering into a discussion of the other questions that have been made.

New trial advised.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    Norton and others vs. Hickok and others.
    A. and B. had severally attached certain personal.property of C., their common debtor, the attachment of A. having precedence, and both had obtained judgment against C. in the suits so brought, the property being, however, insufficient to satisfy either judgment. On a petition in chancery brought by B. against A, praying that A. be enjoined against levying his execution on the property, it having been found by the court, that B’s judgment was based on a just and legal claim, but that A’s judgment, though nominally based on a payment of money for C., was yet founded wholly on a liability of A. to a bank, as maker of a note endorsed by O. and by one F., and which C. had agreed but had failed to pay, and that the object of A. in bringing the suit, was to secure to himself and to F. an indemnity for suoh liability; it was held, that the judgment of A. being founded on no legal indebtedness, his lien ought to be postponed to that of B.; and that, as the property attached was insufficient to pay B’s judgment, the injunction prayed for ought to be granted. °
    The statute of 1846 (B,ev. Stat., tit. i., sec. 59,) which provides, that creditors of a debtor whose property has been attached, may appear in the suit, and contest the same, was not intended to affect any previously existing rights of such creditors, but to furnish an additional remedy.
    And the legal remedy thus furnished, constitutes no objection to equitable relief.

      This was a bill in chancery, praying for an injunction against the levy of an execution, issued upon a judgment of the superior court, in favor of George A. Hickok and William C. Hickok, against Edward Stapleton, upon certain shares of the Pahquioque bank, which had been attached by the plaintiffs.
    The cause in the superior court was referred to a committee, whose report embraced the following facts.
    On the 15th day of July, 1854, the plaintiffs brought their action against Stapleton; attached, as his property, fifty shares of the stock of the Pahquioque bank; and afterwards, in the superior, court, recovered judgment against him for the sum of $8,111.79 damages, and their costs; which judgment so recovered, was found to be for a just and bona fide debt.
    On the day preceding the plaintiffs’ attachment, the Hickoks brought their action against Stapleton; attached the same bank shares, and afterwards, before the superior court for Fairfield county, at the February term, 1855, recovered judgment against him for the sum of $4,000 damages, and their costs, and were about to levy their execution upon the bank shares which they had attached, when the plaintiffs’ suit against them was brought, and they were restrained by a temporary injunction.
    In reference to the validity of the judgment in favor of the Hickoks, it was found, that in the year 1853, Norton, one of the plaintiffs, being a special partner of Stapleton, carrying on business with liim in the name of E. Stapleton, discovered upon the books of the firm, a large balance due from the Hickoks, exceeding in amount $12,000, and insisted that the balance should be reduced. Accordingly, Stapleton, on the 15th of December of that year, procured from them two promissory notes, one for $2,500, payable in three months, and the other for $2,590, payable in four months, and both made payable to one Farnam. These notes were endorsed by Farnam and Stapleton, and discounted at the Hatters’ bank in Danbury, and the proceeds credited to the Hickoks on the books of E. Stapleton.
    Stapleton, who was a secret partner of the Hickoks, a fact not known to Norton, afterwards, in the month of January following, made an arrangement with the Hickoks respecting their partnership dealings, by which he agreed to assume the payment of those two notes. But they were renewed at the bank from time to time, by the substitution of other notes made by the same parties. The last note given for the debt created by the discount of the first-mentioned note, was dated March 15,1855, for $2,500, payable in three months, and when it became due was protested for non-payment. The last note given for the debt created by the discount of the last-mentioned of the two notes, and having the same endorsers, was dated February 23, 1855, for the sum of $2,600, payable in three months after its date. Before this note became due, and after the Hickoks had obtained their judgment, it was taken up from the bank by another note, endorsed by Farnam alone. It was not found that either of these debts to the Hatters’ bank had been paid by any of the parties to the notes.
    Before the attachments were made, and while the plaintiffs were in the act of securing their claims, Stapleton, being aware of the fact, and being also deeply insolvent, sent a power of attorney to the bank for the transfer of his stock, but omitting to send with it his certificate, the president of the bank refused to make the transfer. He thereupon immediately sent word to William C. Hickok, to attach the stock, which he did, in the manner hereinbefore stated.'
    At the time of the rendition of the judgment in favor of the Hickoks, the following bill of particulars was filed.
    « Edward Stapleton
    “ To G. A. & W. C. Hickok, Dr.
    “ 1854, March 18, To money paid, $2,500
    “ “ April 18, To money paid, 1,500
    $4,000”
    It was further found, that the suit in favor of the Hickoks was brought to secure for themselves, and through them for the said Farnam, an indemnity against the payment of the two notes amounting to $5,100, and for no other purpose, and that beyond that there was no actual fraud. The value of the stock was found to be $2,400.
    The superior court for the county of Fairfield, at the August terra, 1856, reserved the questions of law arising upon the record in this case, for the advice of this court.

      Hawley and Averill, for petitioners.
    The petitioners seek to make their own unquestionable claim available against a false and spurious claim of defendants. Pierce v. Jackson, 6 Mass., 242. A judgment may be impeached for fraud, actual or constructive, as well as a conveyance.
    The agreement between defendants and Stapleton was illegal, opposed to public policy, tended to defraud Staple-ton’s partners, who had no knowledge of it, and could furnish no consideration for any promise by Stapleton to pay the debts of the Hickoks, and could lay the foundation for no claim of the latter against him; especially as against the petitioners. Story on Part., sec. 174, 177.
    But aside from this consideration, there was no foundation for the judgment of the defendants in any form of action ; especially in indebitatus assumpsit for money paid.
    The debts they claim Stapleton agreed to pay, were never at all his debts, but always the debts of the defendants. The defendants were never Stapleton’s, sureties, but he was theirs.
    They have never paid either of those debts, nor any part of them, nor ever exonerated Stapleton from his liability on either until after the judgment recovered on one only.
    They could not recover without having paid. Ayres v. Husted, 15 Conn. R., 504, 512. Chit. on Cont., 591. Hotchkiss v. Downes, 2 Conn. R., 136. Savage v. Lyon, 10 John., 32. Little v. Little, 33 Pick., 426.
    But it is expressly found that the action was not brought for moneys paid, but for indemnity merely, before any payment had been made; and indemnity, too, for another endorser.

      The bill of particulars shows the falsity of the claim. There is no pretense that they have ever even constructively paid the $1,500, though they have taken judgment for the whole $4,000.

      Dutton and White, for respondents.
    The injunction in this case ought not to be granted; because,
    I. The respondents’ judgment was a valid judgment.
    1st. The suit was brought at the request of Stapleton. The bringing of the suit under the circumstances, with an understanding that the plaintiffs were to take judgment, amounted to an assumption of the debt to the Hatters’ bank by the Hickoks, which Stapleton was bound to pay; and this created an indebtedness of Stapleton to the Hickoks.
    2d. If it was not, strictly speaking, a debt from Stapleton to the Hickoks, Stapleton would have had a perfect right on a trial, not to object to the admitted facts as evidence in favor of the plaintiffs.
    3d. The settlement between the Hickoks and Stapleton was a bona fide settlement; and Stapleton, having received the benefit of it, by the payments made by the Hickoks, could not deny his liability. The subsequent failure of the firm in which Stapleton was concerned, would not affect this settlement.
    4th. It is legal and proper to secure a party for a liability, by the confession of a judgment. It is a common practice in New York to give such securities. The precise point was decided in the case of Ford v. Elkin, 2 Speer’s R., 146.
    II. The petitioners had adequate remedy at law. The statute provides that a creditor may appear and defend. The petitioners knew of the pendency of the suit, and that the stock in question was attached, and are presumed to know the law.
    III. The petitioners have no better equity than the respondents.
    1st. If the claim on which the respondents’ judgment was founded was not technically an indebtedness of Stapleton, yet it was a highly equitable claim.
    2d. The Hickoks had agreed to take up one of the notes at the Hatters’ bank, before the judgment was rendered. Stapleton, at that time, was utterly insolvent. They actually paid more than the stock which was attached was worth, before this petition was brought. Equity regards that as done which is agreed to be done. It would be highly inequitable to prevent the respondents from holding their judgment for at least the amount of what was paid.
    3d. While the parties have equal equities, the respondents have also the legal title. When a party has both the legal and equitable right, he is always preferred in chancery. 2 Sw. Big., 201. 1 Fonb. Eq., 321, 352. 2 do., 484.
   Waite, C. J.

The question in this case is, which of the two parties, judgment creditors of Edward Stapleton, is entitled to a priority of lien upon his property by virtue of their respective attachments.

The defendants’ attachment was first made, but the plaintiffs’ claim is that it is invalid as against their lien, because the suit was not founded upon any indebtedness of Stapleton.

The committee have found that the judgment in favor of the plaintiffs was rendered for a just and bona fide debt. The record, in the defendants’ case, shows that their judgment was founded upon a claim for moneys paid by 'them to the amount of $4,000, as set forth in their bill of particulars, filed in the case, and the report of the committee shows that no such moneys have ever been paid by them.

Were there nothing more in the ease, it is clear that a judgment so obtained would be of no validity as against a judgment of a bona fide creditor of Stapleton ; and that, upon these facts alone, the plaintiffs would be entitled to the protection they ask.

But the committee have further found that the defendants’ judgment was not in fact founded upon the claim set forth in their bill of particulars, but upon their liability to the Hatters’ bank as makers of two promissory notes, amounting to the sum of $5,100, upon which Farnam and Stapleton were endorsers, and which the latter had agreed to pay; and that their object in bringing their suit, was to secure to themselves and to Farnam an indemnity for their liability on those notes.

It is very evident that this claim is a very different one from that shown by the record. But does this claim place their judgment in any better situation, or give to it any greater efficacy, as against the plaintiffs ?

The debts contracted at the Hatters’ bank were originally for the discount of two promissory notes, made by the Hickoks, upon which Stapleton was no otherwise liable than as their endorser, and perhaps as a secret partner with them in their business. These debts to the bank remained as they originally were, down to the time of the attachment of the defendants, and even down to the time of the rendition of the judgment in their favor, with the exception of the substitution of new notes at the bank, with the same names as makers and endorsers, in the place of prior ones, as they respectively became due.

The Hickoks had paid nothing on account of their liability to the bank, and consequently had created no indebtedness in their favor against Stapleton, and by possibility never might. Stapleton was bound to them by his agreement to assume and pay the bank debts, but was not indebted to them in any specific debt, as he remained liable to the bank as an endorser of those notes.

It is further claimed, that the plaintiffs can not sustain their bill, as they had adequate remedy at law; that we have a statute in this state, which authorized the plaintiffs, as the attaching creditors of Stapleton, to appear in, and defend the suit against him, in favor of the Hickoks, and that they can not now impeach a judgment, the recovery of which they might have prevented, if their claim is well founded.

That statute, however, is a recent enactment,’ and was not intended to take away or impair any right which an attaching creditor previously had, but only to afford him an additional remedy, and perhaps one more expeditious and less expensive. It was therefore optional with the creditors, to avail themselves of the provisions of that statute, or rely upon their equitable and legal rights, as they existed before the statute was passed.

The Hickoks, having failed to show any just or valid debt, as the foundation of their judgment against Stapleton, are not entitled to that priority of lien upon his property which the law would otherwise give them; and as the value of the bank shares is found to be much less than the amount of the plaintiffs’ judgment, we are of opinion that they are entitled to the relief prayed for in their bill, and so advise the superior court.

In this opinion, the other judges, Storrs and Hinman, concurred.

Decree for petitioners advised.

         Passed in 1846. Rev. Stat., tit. i., sec. 59.


text:
    Dikeman vs. Ketchum.
    IC. having tendered to M. a sum of money which he was bound by a contract to pay him, and a tender of which was necessary to prevent a forfeiture of his rights under the contract, deposited the money, on the refusal of M. to receive it, with W., directing him to pay it over to M. whenever he should demand it, and informing M. that it was in W.’s hands subject to his call. While the money was in W.’s hands, D., who had a claim of less amount against K , which was due, and admitted by him, demanded payment of K., and on his refusal to pay, requested him to give him an order on W. for enough to pay the debt, which K. also refused. D. then brought an action on the case against K. under the provisions df the 283d section of the act with regard to civil actions, charging him with fraudulently concealing and withholding his money, so that it could not be taken by legal process. The jury having found, under the charge of the court, that IC. had deposited the money in W.’s hands only for the purpose of keeping good the tender, that the tender and deposit were honest and open transactions, and that notice thereof was given by K. to the officer who made demand in behalf of D.; it was held, that the money was not withheld by K. within the intent of the statute, so that it could not be taken by legal process ; and that K. had done all that was incumbent on him, in informing the officer of the deposit, and was not bound to withdraw the money from the application which he had made of it, and appropriate it to the payment of D/s claim.
    This was an action on the case, brought under the provisions of the 283d section of the statute with regard to. civil actions, which provides for such an action against a debtor “ who shall refuse to pay any debt admitted by him to be due, or established by a valid judgment, while having moneys or estate not exempt from execution sufficient to pay said debt, concealed, or withheld by him, so that they can not be taken by legal process.”
    The declaration, after alleging that the defendant was indebted to the plaintiff, on the 1st day of July, 1854, in the sum of $54, for goods sold, which indebtedness still existed, and was admitted by the defendant, proceeded to allege, that the defendant refused to pay the same, although possessed of a large sum of money, and more than sufficient to discharge said debt, to wit, the sum of $ 150, and that the defendant on said 1st day of July, with intent to defraud the plaintiff, concealed and withheld said money, so that the same could not be taken by legal process to satisfy said debt, and wholly refused to apply any part of the same to the payment of said debt. The writ was issued and served on the 1st day of July, 1854.
    The cause was tried on the general issue closed to the jury, at the term of the superior court holden in the county of Fairfield, in March, 1856. On the trial it was admitted that before the 1st day of July, 1854, the debt mentioned in the plaintiff ’s declaration was, and still continued to be, justly due from the defendant to the plaintiff, and that it had at all times been admitted by the defendant.

      The plaintiff claimed to recover, only on the ground that the defendant refused to pay the debt, while having money or estate, not exempt from execution, sufficient to pay the same, concealed or withheld by him so that it could not be taken by legal process.
    It was agreed that on said 1st of July, the defendant had in his possession and owned $5180, in gold, which at noon on that day, and before the commencement of this suit, he tendered to one Marvin, upon a contract before that time made by him with said Marvin, for the purchase of a tract of land lying in Westport, in Fairfield county; that Marvin refused to receive the money at that time, because, as he claimed, the contract had been broken by the defendant, and that thereupon the defendant placed the money in the hands of one Winton, of said Westport, with instructions to hold the same and pay it over to Marvin, whenever Marvin should conclude to receive it; and that Marvin was notified of the deposit and that it would be paid over to him by Winton on demand; and that a few days after, and after the commencement of this suit, Marvin concluded to accept the tender, demanded the same of Winton, and received the amount from him in his check on the Saugatuck bank, in which bank he had deposited the money to his own credit, but there was no evidence that such deposit was made by the direction or with the knowledge of the defendant.
    It was also agreed that Winton had no instructions from Marvin to hold the money for him ; and that the contract upon which the tender was made and finally received, was afterwards forfeited by the breach of some condition, and abandoned by the defendant.
    The plaintiff offered evidence to prove that, on said 1st day of July, after the deposit of the money in the hands of Winton, he placed his writ in the hands of W. H. Sanford, a deputy-sheriff, who demanded payment of said debt of the defendant; that the defendant refused to pay it, and told said deputy that he had nothing which could be taken by attachment, and that thereupon he immediately served said writ.
    The defendant claimed and offered evidence to prove that, some time before the tender, he had made a contract with Marvin, for the purchase of said land, and had paid him'$620, as part of the purchase money, and had taken possession of the land under the contract; and that by the terms of the contract, $180 more of the purchase money became due on the first of July, 1854, and must on that day be paid or tendered in order to avoid a forfeiture of the contract; and that for the sole purpose of making such payment, he had, by the sale of the grass growing on said land, on that day raised said sum and tendered it to Marvin, and on his refusal of the money had, in Marvin’s presence, placed it in the hands of Winton, in order to keep good the tender, giving to Winton instructions to pay the same over to Marvin whenever requested by him, and at the same time giving to Marvin notice that the money would be paid to him by Winton on request; that the tender and deposit in Winton’s hands were honest and open transactions, without any concealment or fraud, or any intent to place the money beyond the reach of process, but only for the purpose of fulfilling said contract and preventing the forfeiture thereof; and that when Sanford demanded the payment of said debt, he knew that the money was in Winton’s hands and requested an order on Winton for so much of it as would pay the plaintiff’s debt; that the defendant declined to give such order because he honestly supposed he had no right to give it, and so stated to Sanford, at the same time informing him of all the circumstances attending the tender of the money, and its deposit in Winton’s hands, and the instructions under which Winton received and held the same.
    The plaintiff claimed that the defendant’s interest in said contract, or his property or rights acquired under it, could not be taken by attachment, and that by the tender and deposit the defendant undertook to invest his money in other property, so that it could not be taken by legal process, and so concealed the same within the meaning of the statute; and that if, at the time of said demand, the defendant in fact had, but claimed he had not, the means to make payment, he withheld such means, within the meaning of the statute; and prayed the court so to charge the jury.
    The court charged the jury:
    That in order to entitle the plaintiff to a verdict, it must be shown that the defendant’s money or estate had been concealed, or withheld by him, so that it could not be taken by legal process.
    That “ concealment” implied some positive act, and some intent of the party concealing, to seclude the subject of concealment from observation, or discovery, by others ; that if the defendant, having the means to pay the plaintiff’s debt, instead of paying it, invested such means in other property, so that it could not be taken by legal process, he “ concealed ” those means within the meaning of the statute; and that if, in putting his money into the hands of Winton, he did it secretly, or placed it there in the name of another person, or used any other means to conceal his interest in it, or the place of its deposit, he “concealed” it, within the meaning of the statute.
    That “ to withhold ” implied only an omission to bring forward, when in his power, what the party ought to produce ; and that if the defendant, admitting the debt, and having the means to pay it, refused upon demand to pay, he “withheld” within the meaning of the statute.
    That the defendant’s property in or right of control over the money, until its reception by Marvin, was not lost or affected by the tender of it, or by its deposit in Winton’s hands, and that the defendant had a right to withdraw it at pleasure, and apply it to the payment of the plaintiff’s debt.
    But that it was not enough for the plaintiff to show that the money was “withheld” by the defendant, unless it was also shown to be so withheld that it could not be taken by legal process.
    And that if the facts regarding the tender and deposit of the money, the object and intent with which it was made, and its freedom from fraud and from concealment, and notice thereof to said Sanford, were as the defendant claimed, the money could have been secured by process of foreign attachment, if not by the ordinary process of attachment, and therefore was not concealed or withheld by the defendant so that it could not be taken by legal process, within the meaning of the statute; and that the debt being admitted, and it being admitted that said money was, at the time of the demand, in Winton’s hands only for the purpose of keeping good said tender, and there being no claim that the defendant had any other money or means, if the jury should find that said money was by the defendant concealed or withheld so that it could not be taken on legal process, the plaintiff was entitled to a verdict; otherwise the verdict ought to be for the defendant.
    The jury having returned a verdict for the defendant, the plaintiff moved for a new trial for a misdirection.

      Dutton and Ferry, in support of the motion.

      Loomis and Wilson, contra.
   Storrs, J.

The branch of the statute on which the plaintiff claimed a right to recover, subjects a debtor to the action provided in it, who “ shall refuse to pay any debt admitted by him to be due, or established by a valid judgment, while having moneys or estate, not exempt from execution, sufficient to pay said debt, concealed or withheld by him so that they can not be taken by legal process.” Sfat. 150, tit. i., § 283, ch. xv. On the facts found by the jury in this case, there was plainly no concealment of property by the defendant. There was, however, a withholding of the money in the hands of Winton, because, although it was deposited with him for the purpose of keeping good the previous tender of it to Marvin, it was under the immediate control of the defendant, who might have procured it, and appropriated it to the payment of the plaintiff’s debt. But a mere withholding of property is not sufficient to charge the debtor; it must be such a withholding that it can not be taken by legal process. In this case, if the plaintiff could not have attached specifically the money in Winton’s hands, he could have recovered the amount from Winton by process of foreign attachment, and in one of these modes made it available for the payment of his debt; and therefore it was not so withheld that it could not be taken by legal process. On these points the charge below was correct. It is claimed thatit was the duty of the defendant to procure the money from Winton, and pay it to the plaintiff, or offer it to the officer on his attachment. No such duty rested on the defendant; he had deposited it with Winton honestly, and for a lawful purpose, and was not liable for not withdrawing it, by which means that purpose might be frustrated. It was sufficient for him to inform the officer of its situation, so that it could be secured by attachment. If it had been any other property, situated at a distance, it would not have been incumbent on him to go after it and deliver it to the officer, but it would have been sufficient to gjve the latter such information that he could have attached it; and we do not perceive why the same rule does not apply to the present case.

A new trial is not advised.

In this opinion, the other judges, Waite and Hinman, concurred.

New trial not to be granted.


text:
    Curtis, Trustee, vs. Barnum.
    The statute of 1853, relating to insolvent debtors, which provides that all attachments of the property of a^debtor, made within sixty days preceding an assignment by such debtor, under the provisions of the act, shall be dissolved, and the property attached vest, free from the attachment, in the trustee, applies to attachments made within the sixty days preceding the 1st day of January, 1854, although the statute by its terms was not to take effect until that date.
    This was an action of trover, tried before the superior court for Fairfield county, at the March term, 1856. The court found the facts, and reserved the case for the advice of this court.
    From that finding, it appears that the defendant, on the 17th day of December, 1853, by virtue of a writ of attachment in favor of William B. Glover against Cyrenius Curtis, attached the goods in question, as the property of Curtis, and took them into his possession, and afterward, in the same month, attached them in two other suits. The creditors in these suits, having obtained judgments and executions against Curtis, the defendant levied the executions upon the property, sold the same, and applied the proceeds on the executions.
    Cyrenius Curtis, on the 7th day of. January, 1854, made an assignment of his property, in writing, for the benefit of bis creditors, under the act for the relief of insolvent debtors, &e., passed at the May session of the general assembly in 1853 On the 13th day of January, 1854, the plaintiff was duly appointed trustee of the property so assigned, and on the 6th of February following, made demand of the defendant of the property; which the defendant refused to deliver, and afterward sold under the executions.
    Belden, for plaintiff.
    1. The statute is an equitable enactment, the object of which was that the estate of an insolvent should be equally divided among all his creditors, and was intended for his benefit as well as theirs.
    2. It was to take effect at such future time as not to affect rights already acquired by attachment without notice.
    3. When the statute took effect, it took full effect, and all its provisions at the same time became operative.
    4. The meaning of the statute is plain and evident, and must be construed according to the words. Curtis v. Hurlbut, 2 Conn. R., 309. Heath v. White, 5 Conn. R., 228. Perkins v. Perkins, 7 Conn. R., 558. See also Goshen v. Stonington, 4 Conn. R., 209. Whitman v. Hapgood, 10 Mass. R., 439. Plumb v. Sawyer, 21 Conn. R., 355.
    5. The statute was no more retrospective when it first took effect, than now; all knew the provisions of the act then, and then knew, as they now know, that attachment-liens are only contingent, and liable to be defeated by the operation of this statute. The legislature would, if they had not intended otherwise, have provided, that all attachment-liens acquired prior to the 1st of January, 1854, should not be dissolved thereby.

      Treat and Blake, for defendant.
    The only question in this case is as to the proper construction of the statute. Ed. 1854, p. 514, sec. 3.
    1. The construction claimed by the plaintiff makes the statute retrospective in its operation. Plumb v. Sawyer, 21 Conn. R., 351, and cases there cited.
    2. The attaching creditors at the time acquired a lien upon the property, an interest which courts will protect. Camp v. Bates, 11 Conn. R., 51. Lyon v. Sanford, 5 Conn. R., 544.

      3. The almost universal opinion and practice of the profession is against the plaintiff. Estates in many instances have been settled under this construction of the law.

       The provisions of that statute, so far as they are material to the ease, are the following:
      “ Sect. 3 Whenever an assignment shall he made for the benefit of creditors, all attachments of the property of such debtor, either real or personal, made at any time within sixty days preceding such assignment, shall be dissolved, and all property so attached shall vest at once, free from all such attachments, in such trustee; and, in like manner, all levies of executions on such property, except where made in pursuance of attachments not invalidated hereby.
      Sect. 24. This act shall take efiect on the first day of January, A. D. 1854,”

   Waite, C. J.

Cyrenius Curtis made an assignment of his property, for the benefit of his creditors, under the statute relating to insolvent debtors. That statute provides that all attachments, made at any time within sixty days preceding such assignment, shall be dissolved, and all property so attached shall vest at once, free from such attachments, in the trustee.

The attachments made by the defendant in the present case, were made within sixty days preceding that assignment, and therefore fall directly within the very provisions of the statute, and in consequence thereof, and of the assignment, became dissolved, and the property attached became vested in the plaintiff, as the trustee of the property assigned.

This, it is admitted, would clearly be the effect, had the attachments been made after the first day of January, 1854, when the statute went into operation. But it is insisted that inasmuch as they were made before that time, a different rule of construction applies.

Had the statute taken effect from its passage, and the question been, whether it dissolved prior attachments, made when valid liens could thereby have been acquired, there would have been much force in this claim.

But we are inclined to think the legislature, by postponing the operation of the statute for an unusual period of time, intended thereby to give creditors ample opportunity to act with reference to its effect.

They could, as before the act was passed, safely attach at any time more than sixty days before an assignment could be made under the statute. But if they waited longer, they attached subject to the liability of having their liens dissolved by a subsequent assignment.

The language of the statute is very broad and comprehensive, and so expressed as to leave no doubt as to its meaning. It provides that all attachments, made at any time within sixty days preceding such assignment, shall at once be dissolved, leaving all prior attachments as they would have been had there been no change in the law.

It does not impair the creditor’s debt, but merely dissolves the lien, and the priority which he would otherwise have obtained; and leaves him to stand upon the same ground as the other creditors of his debtor.

The creditors, in the present case, by postponing their attachments, have brought them within the operation of the statute, and rendered them liable to be dissolved by the subsequent assignment. Of all this they had knowledge, when they made their attachments, for the statute had then been passed and published. But for the subsequent assignment, their attachments would have remained valid, and so they would, had they been made subsequent to the first of January.

Our opinion, therefore, is that upon the facts found in the present case, the plaintiff is entitled to judgment; and we so advise the superior court.

In this opinion the other judges, Stours and Hinman, concurred.

Judgment for the'plaintiff advised.


author: Hinman, J.

text:
    Jones v. Hoyt.
    The plaintiff, a shipmaster, contracted with the defendant to transport a quantity of lumber from New York to San Francisco. The bill of lading provided that the lumber should be delivered to D., he paying freight for the same according to a certain stipulated rate. Across the face of the bill of lading were written the words, “ The lumber to be piled and measured on the deck of the vessel, and freight settled according to that measurement; ” and on the margin the following: “Freight payable in specie or its equivalent before delivery of the goods, and to be received by the consignee within reach of the vessel’s tackle, and if not taken within ten days after arrival, the master to be at liberty to land the same at the expense and risk of the goods, and sell sufficient to pay all charges.” On the back was the following, signed by the defendant: “ I guarantee the payment of the within named freight.” The consignee having died before the arrival of the vessel, the plaintiff advertised for an agent of the defendant to take charge of the lumber. An agent appeared, but declined to pay the freight, and abandoned the lumber to the plaintiff, who thereupon caused a protest to be made, and after waiting ten days, proceeded to measure and dispose of the lumber. In measuring it, a part, as a matter of convenience, was piled on the dock at which the vessel lay. The plaintiff sold it afterward at auction, in gross, for less than enough to pay the freight and primage and expenses of sale, an agent of the plaintiff bidding it in for his benefit. He afterward sold it at retail at a considerable advance, but still for less than the amount of the freight and primage and expenses of sale. Of these sales, supposing himself to be the owner of the lumber, he kept no accurate account.
    In an action brought by the plaintiff, to recover the balance of the freight and primage, it was held:
    1. That the measurement of the lumber on the deck was not a condition precedent of the right of recovery, the provision for such measurement being intended, either to enable the plaintiff to retain possession of the lumber until the freight should be paid, in which case he would have the right to waive the benefit of it; or as an appointment of a convenient place for the defendant’s agent to meet the plaintiff, for the purpose of making such measurement, in which case it had become, in the circumstances, unimportant.
    2. That parol evidence was inadmissible to show that the guarantee of the defendant was intended by the parties as a security for the payment of the freight, in the place of the lien which the plaintiff would otherwise hold on the lumber, and to prevent a sale of the lumber for the payment of the freight; such evidence contradicting the bill of lading, which provided that the freight should be paid before the lumber was delivered.
    3. That the plaintiff was not bound, before bringing suit, to give the defendant notice of the measurement of the lumber, as the parties had equal means of information, and the neglect of the defendant’s agent ought not to impose an additional burden in this respect on the plaintiff.

      4. Nor to give the defendant notice of the proceeds and expenses of the sales ; since the plaintiff was suing only for his freight and primage, and the question how far he was chargeable for the lumber, arose only on the defense.
    The declaration in such action containing, in addition to a special count setting out the contract between the parties, two other counts of a general character, it was held, upon a claim of variance between the contract proved and that alleged in the special count, that, the verdict being general, and under our practice sustainable upon any sufficient count of the declaration, the question of variance, affecting only the special count, was unimportant.
    Where, on the trial of such action, the court charged the jury, that the plaintiff was to be treated as the agent of the defendant in such sales; that as such agent he was accountable for the lumber at the highest price for which it was in fact, or by reasonable diligence could have been, sold at that time in San Francisco; that while, as a general rule, an agent should be held to a strict accountability, and ought to keep accurate accounts of his dealings, yet that if the plaintiff had conducted fairly, obtaining the best prices that by reasonable diligence could be obtained, and accounting honestly according to his best means, and had explained to the satisfaction of the jury his neglect to keep exact accounts, and such neglect involved no gross carelessness or dishonesty on his part, he ought to be allowed, out of the proceeds of the lumber, all the necessary expenses of managing and disposing of the same, and a reasonable compensation for his services : on a motion for a new trial by the defendant, it was held that such charge was correct.
    This was an action of assumpsit, brought to recover the freight and primage on a quantity of lumber, transported by the plaintiff for the defendant from New York to San Francisco.
    The declaration contained one count setting forth specially the contract between the parties and the plaintiff’s proceedings under it, and two counts of a more general character. It is given in full, in the report of a former trial of the same case before this court. 21 Conn. R., 157.
    The case was tried on the general issue closed to the jury, at the term of the superior court for the county of Fairfield, holden in March, 1856.
    On the trial the plaintiff read in evidence the following bill of lading, with the accompanying agreements and memoranda.

      “ Shipped in good order and condition by James H. Hoyt, on board the bark called the Z. Ring, whereof Townsend Jones is master, now lying at the port of New York, and bound for San Francisco,

      [Here follows a schedule of the lumber.]
    Being marked and numbered as in the margin, and are to be delivered in the like order and condition at the port of San Francisco, (the dangers of the sea only excepted), unto Aaron Dean, or to his assignees, he or they paying freight for the same at the rate of fifty-eight dollars per thousand feet, eighty-three and one-third cubic feet being taken for a thousand, with primage and average accustomed. In witness whereof, the master or purser of the said vessel hath affirmed to four bills of lading, all of this tenor and date, one of v/hich being accomplished the others to stand void.
    “ Dated in New York, the 7th day of Jan., 1850. — T. J.” On the margin was the following:
    “57,602 a $58 - $3,340.91
    5 per cent, primage, - - 167.05 — $3,507.96 ”
    Also the following: “Bark to have the privilege of one or more ports for refreshments. Number of pieces unknown; all on board to be delivered. Freight payable in specie or its equivalent before delivery of the goods, and to be received by the consignee within reach of the vessel’s tackle, when the vessel is ready to deliver them, and if not taken within ten days after the arrival of the vessel, the master to be at liberty to land the same at the expense and risk of the goods, and to sell sufficient to pay all charges. Not accountable for splits or breakage.”
    Across the face of the bill of lading was the following: “ The lumber to be piled up and measured on the deck of the vessel, and freight settled according to that measurement, the expense of the same to be paid equally by the vessel and the consignee.”
    Across the back of the bill of lading was the following, signed by the defendant: “ I guarantee the payment of the within freight. New York, January 7, 1850.”
    It was admitted that the lumber mentioned in the bill of lading was duly transported to San Francisco by the plaintiff, and arrived there about the first of August, 1850, and that before its arrival, the consignee had died.
    The plaintiff claimed, and offered evidence to prove, that upon his arrival with the lumber at San Francisco, he advertised for a consignee to come forward and take charge of it; that thereupon one Lockwood appeared as the defendant’s agent, and at first expressed an intention to take charge and dispose of the lumber and pay the freight thereon; but after inquiring into the state of the market, declined to pay the freight, abandoned the lumber to the plaintiff, and told him he must dispose of it as he thought proper; and that thereupon the plaintiff caused a protest to be made, and that after said abandonment, no person appeared who professed to have anything to do with the lumber on the defendant’s account.
    That for the purpose of ascertaining the quantity of the lumber, he caused so much as could be conveniently put upon the deck of his vessel at one time, to be there piled, and the residue to be piled upon the wharf against which the vessel was lying, and with the assistance of one Slate, a disinterested and competent person, measured it in said two piles, and found the quantity to be 4,166 cubic feet, or 50,000 feet in board measure; that the lumber could not have been all piled for measurement on the deck of the vessel without great inconvenience and additional labor and expense; that it was properly piled and accurately measured ; and the plaintiff admitted that no other measurement was made. To the admission of this evidence as to the measurement, the defendant objected, as variant from the averments regarding it in the declaration, but the court overruled the objection and admitted it.
    The defendant claimed that the plaintiff was not entitled to recover in this suit, because, as he claimed, after his arrival at San Francisco, he had taken and sold the whole of the lumber, and received and still retained the proceeds thereof, and as the. agent of the defendant was accountable to him for such proceeds; and that upon such sale the lumber in fact produced, or by the use of reasonable and ordinary diligence and skill would have produced, more than enough to have paid all reasonable charges and expenses, with the freight and primage,

      The plaintiff admitted that he had sold the lumber and received the proceeds, but he claimed that he had stored it, after his arrival at San Francisco, a considerable period, for which he was entitled to compensation, and had paid out large sums for necessary expenses incident to the care and disposal thereof, and had devoted his own time to the sale thereof, and was entitled to compensation for such storage and services, and to remuneration for such expenses, to be deducted from the proceeds ; and that after making such deductions, the amount of the proceeds remaining in his hands was altogether insufficient to pay him the amount of freight and primage for the recovery of which this suit was brought; and he offered evidence to prove that, after the measurement of the lumber, he caused the same to be advertised for sale, and put up at public auction ; and that at such auction it was bid in for him, by his agent, at the price of thirty-five dollars per thousand feet, board measure, and that thereupon, supposing himself the legal owner, he took possession of it, and afterward sold it in parcels to sundry individuals at different times, between the 17th of August and the 12th of October, 1850 ; and that the lumber upon such sales produced less than the sum of $2,400 in the whole, without deducting any charges or expenses. That in all his proceedings relating to the disposal of the lumber, he acted as he honestly supposed his duty toward the defendant required ; that he procured the lumber to be bid in for himself in good faith, supposing it was legal and right for him so to do, and believing that he was thereby promoting the interest of the defendant, and that he had by such purchase at auction become the legal owner of the lumber, and was accountable for it to the defendant at the rate of thirty-five dollars per thousand, and had no account to render to any one of his subsequent sales, or of his charges or expenses in relation thereto, and therefore had kept no account thereof, and he admitted that the account thereof exhibited upon the trial, was recently made and from his recollection alone.
    The plaintiff also claimed, and offered evidence to prove, that in the disposition of the lumber after said auction, he acted in good faith, and sold it for the best prices he could obtain, and the best that by the exercise of reasonable diligence and skill could be obtained; that said account was substantially correct; that his charges therein were warranted by the usages of the trade, and were reasonable and proper, although he admitted that he could not now recollect the exact amount received by him for each of the several parcels of lumber sold, or the dates of such sales, or the names of the persons to whom they were made, or the exact sums paid for expenses, or to whom such payments were made.
    The defendant claimed, and offered evidence to prove, that by the use of reasonable diligence the plaintiff could have obtained better prices for the lumber; that the plaintiff refused to deliver it to Lockwood without the payment of the freight thereon, and kept it on hand an unnecessary and unreasonable length of time upon expense, before selling. And he claimed that the plaintiff’ had no legal right to sell the lumber at all, for the payment of his freight out of the proceeds, but was bound to deliver it to Lockwood, and rely upon the defendant’s guaranty for his freight; and he offered the testimony of a witness to prove that the guaranty was intended by the parties to secure the plaintiff for the freight, and prevent the sale of the lumber for the payment thereof in any contingency. To this evidence the plaintiff objected, and the court rejected it.
    No evidence was offered that before the commencement of the suit the plaintiff had given the defendant any notice of his demand in this suit, or made any demand for the payment thereof, or had rendered to the defendant any account of the sales of the lumber, or of his charges or expenses in relation thereto; and the defendant requested the court to charge the jury, that without such prior notice, demand and account, the plaintiff was not entitled to recover.
    The defendant also claimed that the plaintiff, having kept no account of his sales, was to be charged with the highest prices which could have been procured at that time, and as he had made no account of his services or expenditures in relation to the lumber or the keeping or sale thereof, he was not entitled to any allowance out of the proceeds on account of such charges or expenses, or any allowance for his own services, either as commissions or otherwise, (it being admitted that no special agreement for such commissions or other compensation had been made,) and he prayed the court so to charge the jury; and also to instruct them that the stipulation contained in the bill of lading regarding the measurement of the lumber on the deck of the vessel, was in the nature of a condition precedent to the plaintiff’s right to recover his freight, and that the lumber not having been so piled and measured, the plaintiff was not entitled to recover.
    The court charged the jury:
    That it being agreed that the lumber was in fact transported to the port of delivery as the bill of lading required, if the jury should find that upon the arrival of the vessel at San Francisco, the plaintiff used all reasonable measures, by advertising or otherwise, to procure the appearance of a consignee, or other person authorized to receive the lumber and act for the,defendant in regard to the measurement and disposition of it, and that no person appeared for that purpose, or having appeared, finally abandoned the property to the plaintiff before its measurement; and that in removing part of it to the wharf and measuring it there, the plaintiff acted reasonably under all the circumstances, then he would not be precluded from receiving his freight and primage, by the provision in the bill of lading regarding the measurement of said lumber on said vessel’s deck; and that the action being for the recovery of such freight and primage, notice, and demand of the plaintiff’s claim were not necessary before the commencement of the suit, nor was the rendition by the plaintiff to the defendant of an account of the sales of said lumber, or of his charges for storage, services and expenses growing out of the disposition of the lumber after its arrival at San Francisco, necessary to entitle the plaintiff to a verdict in this suit.

      That the plaintiff having sold the lumber after its arrival at the port of delivery, and the defendant having now elected to consider and treat the plaintiff' as his agent in that transaction, for the purposes of this defense, the plaintiff was to be treated as such agent.
    That as such agent he was accountable for said lumber at the highest prices for which it in fact was, or by the use of reasonable diligence could have been, sold at that time at San Francisco.
    That an agent should be held to a strict accountability for goods entrusted to him for sale, and ought in general to keep accurate and particular accounts of all his dealings with such goods, and that if he has omitted to keep such accounts, every presumption consistent with the known facts in the case, is to be made against him. But that such general rule must be taken subject to reasonable modifications by the circumstances of the particular case in which it is to be applied, and that in certain cases, as when the property consists of a single article or a small number of articles, or a single sale or a small number of sales are made, such account may be dispensed with; and that in this part of the case the inquiry for the jury was, whether the plaintiff' had conducted fairly, obtaining the best prices which by the use of due and reasonable diligence could be obtained, and accounting honestly and truly according to the best information and means within his reach and control.
    And that if his omission to produce particular and exact accounts of his transactions in relation to said lumber had been explained and accounted for to the satisfaction of the jury, and involved no gross carelessness or dishonesty on his part, then he was entitled to a reasonable relaxation of the general rule, and ought not to be deprived of just compensation for his services and expenses, on account of such omission ; and then the jury ought to allow him as against the proceeds of said lumber, all his expenses necessarily incurred and paid in the management and disposal thereof, together with a reasonable compensation for his storage and services, the amount to be determined by the usages of the trade and the. rates of compensation generally allowed at San Francisco in such cases.
    That for storage of the lumber in the plaintiff’s warehouse or vessel after the expiration of the time limited in the bñl of lading for its delivery to and reception by the consignee, the plaintiff was entitled to a reasonable compensation ; but that if at San Francisco the charge of commissions, or any other charge contained in the plaintiff’s account, was understood to embrace and cover compensation for storage, then the charge for storage in addition to such commissions or other charges ought not to be allowed; as the plaintiff was entitled in the whole only to a reasonable compensation for his expenses and for the use of his vessel, and for his services in the transaction of the business.
    And that if the jury should find that the lumber had been transported by the plaintiff according to the terms of the contract contained in the bill of lading, and that the proceeds of the lumber actually received, or which by the exercise of due and reasonable diligence might have been obtained, after deducting therefrom the necessary expenses paid by the plaintiff and a reasonable compensation for his storage and services, amounted to less than the freight and primage earned by the transportation of the lumber, then their verdict ought to be for the plaintiff to recover the difference, with interest thereon, from the 17th of August, 1850, to the present time; but if such proceeds actually received, or which by the use of due and reasonable diligence might have been obtained, after deducting such expenses and compensation, amounted to more than the freight and primage, then their verdict ought to be for the defendant.
    The jury having returned a verdict for the plaintiff', the defendant moved for a new trial for error in the rulings and charge of the court.

      Hawley and Minor, in support of the motion.
    1. The evidence regarding the measurement was variant from the declaration.

      2. The testimony offered to show that the guarantee was given in lieu of a lien, should have been admitted.
    3. Defendant was entitled to notice of the measurement, the proceeds of sales, the amount of expenses, &e., before action brought. Without such notice it was impossible for him to know how much he was bound to pay, if indeed anything. 1 Chitt. PL, 320. Chitt. on Cont., 732. 2 Pars, on Cont., 180.
    4. The charge as to plaintiff’s having kept no account was erroneous. Paley on Agency, 27, 28.

      Dutton and Ferris, contra.
    1. The evidence regarding the measurement was properly admitted. 1. It was not materially variant from the declaration, in the first count thereof. 2. It was clearly admissible under the second and third counts. 3. There was no need of alleging, at all, the performance of the stipulation regarding the measurement. Lounsbury v. The Protection Ins. Co., 8 Conn. R., 466. 4. This point was settled by the opinion of the court on the former trial of this case. 23 Conn. R., 157.
    2. The evidence offered to prove the intention of the parties, in reference to the guarantee indorsed on the bill of lading, was properly rejected. It was a mere attempt to vary a written contract by parol evidence.
    3. No demand before suit was necessary. 1 Chitt. PL, 320, 321.
    The freight, by the terms of the bill of lading, was payable on the arrival of the lumber at San Francisco. Williams v. Granger, 4 Day’s R., 444. Breed v. Hillhouse, 7 Conn. R., 523, 533.
    4. The charge of the court regarding the allowance to the plaintiff for services and expenses, was correct. 1. The plaintiff was made agent in this case against his wish, and by the default of the defendant, and ought not to be held to any course of conduct which would be unreasonable under the circumstances. 2. If there is any rule which, under peculiar circumstances, will deprive an agent of his right to remuneration, that rule is subject to the qualifications stated by the court. The law will not punish a man, whose motives are good, for a mere mistake. 3. The charge of the court put upon the plaintiff the necessity of doing everything which the policy of the rule requires, before his charges could be allowed. 4. By the terms of the contract itself, the plaintiff was permitted to indemnify himself from the proceeds of the lumber for the expenses of the sale. Where there is such a special contract, it supersedes any rule which the law would otherwise furnish.
   Hinman, J.

When this ease was before us at a former term, (23 Conn. R., 157,) we held that the stipulation regarding the measurement of the lumber on the deck of the vessel, which was written across the face of the bill of lading, was not, under the circumstances, a condition precedent to the plaintiff’s right of recovery.

It appeared to us rather as a stipulation for the benefit of the plaintiff, to enable him to retain possession of the lumber on the deck of his vessel, until his freight was paid ; and to prevent the consignee from obtaining possession, under any pretense, until he first paid the freight. If this is so, then it was obviously competent for the plaintiff to waive it, and he did waive it by measuring a part of the lumber on the wharf.

But however this may be, it is quite clear that the place of measurement can be of no other importance than to enable the plaintiff to retain possession of it, or as the mere appointment of a suitable place where the plaintiff and the consignee could meet, and see to its correct measurement; and in either case, we thought it not intended to be incorporated in the contract, as a condition which must necessarily be performed, to entitle the plaintiff to demand his freight. If it was the mere appointment of a suitable place for the parties to meet, and measure the lumber, it may be considered in the light of a note, or memorandum, collateral to the contract, rather than any part of the contract itself; and as the object of it was entirely frustrated by the death of the consignee, and the refusal of Lockwood, or any other agent of the defendant, to receive the lumber, or to act on his behalf in respect to it, we thought it a stipulation which had ceased to be of any importance, and its non-performance would not therefore prevent the plaintiff from recovering in this suit. Without dwelling further on this point, it is sufficient to say that we see no occasion now to change our former opinion upon it. If it be said that the construction given to this stipulation varies the contract from that set out in the first count, the obvious answer is that this objection does not apply to the second and third counts, which are both applicable to the plaintiff’s case, and either of which, by our practice, is sufficient to sustain the verdict.

The rejection by the court, of parol evidence to show that the guarantee on the back of the bill of lading was given to secure the payment of freight, and to prevent a sale for this object, was proper. The direct effect of the evidence was to vary the contract, as it appeared by the bill of lading, which made the payment a condition upon which the lumber was to be delivered. This is clearly implied from the terms used in the body of the bill of lading, and is clearly and fully expressed on the margin, where it is said, “ Freight payable in specie or its equivalent, before delivery.” Of course this could not be varied by parol, without a departure from the well settled principle that parol evidence is inadmissible for the purpose of altering the legal operation of a written instrument.

It is claimed that, before the action could be commenced, the plaintiff was bound to give the defendant notice of the measurement of the lumber, of the sales of it, and of the expenses of selling it. But it appears to us that the parties had equal means of information, in respect to the measurement ; and it was therefore the fault of the defendant that he did not know of it. It was contemplated that the parties should meet on the deck of the vessel, on its arrival at Ban Francisco, and jointly attend to the measurement; and if the defendant’s agent, Lockwood, had attended to his duty, this would have been done. This neglect ought not to impose any additional burden, in respect to giving notice, upon the plaintiff. The appointment of a time and place when and where the parties would meet, and attend to an act of this sort, certainly appears to give the parties the means of knowledge, to as full extent as they would have of an award of arbitrators, or the act of a stranger of which a party is bound by promise to take notice, because he has the means of knowledge; and we think the fact in respect to the measurement falls within this principle. 2 Saund. R., 62, n. 4.

As to notice of the proceeds of sales, after deducting expenses, that is no part of the plaintiff’s case. It comes in by way of reducing the amount which he would otherwise be entitled to recover for freight. His action is for freight earned in transporting for the defendant a cargo of lumber to San Francisco, and the defendant comes in and says he ought not to pay this amount, because the plaintiff obtained payment by a sale of the lumber after the freight was earned; and the question is, how much shall be deducted from the plaintiff’s claim on this account. It is rather for the defendant, than for the plaintiff, to show the amount of sales. It is true, in doing so, he resorts to the plaintiff’s account of these sales, but what they have to do with his right to commence his suit for freight, we do not see. And as the proceeds of the sales, and the sales themselves, stand upon the same footing, no notice of either was required.

It is claimed that the charge of the court was wrong, in respect to the plaintiff’s not having kept an account. There is no doubt but that ordinarily it is the duty of agents to keep regular accounts. The court gave the defendant the benefit of this principle, and then stated to the jury the modifications of it which seemed applicable to the circumstances of the case. In cases of gross neglect of this sort, as well as in cases of gross misconduct in other respects, an agent may so conduct his business as to forfeit his whole title to compensation, and thus be made to bear the consequences of his misconduct. Story on Agency, 422, § 332, 333. He is also, in accounting, liable to have all doubtful circumstances construed unfavorably to his rights and interests. Now the court threw upon the plaintiff the burden of explaining his neglect to keep accounts, and made his right to a reasonable compensation, in the course of his agency, to rest on bis ability to give a satisfactory explanation, which implied no imputation of gross carelessness, dishonesty or fraud. "We think this was correct under the circumstances. Indeed, we do not see what other course could have been taken.

It is said that the charge was too vague, taken as a whole; but as we are referred to no specifications under this claim, and do not perceive any ground for the claim in the charge itself, we do not advise a new trial on this account, or on any of the points which we have had occasion to notice.

In this opinion the other judges, Waite and Stores, concurred.

New trial not advised.


text:
    Cook and wife vs. Catlin and others.
    A testator, possessed only of personal property, bequeathed the residuum of his estate to his heirs. At the time of the execution of the will, and of his death, the only persons standing in that relation to him were the children of deceased brothers and sisters, and the representatives of such children. Held, that the nephews and nieces, under this bequest, took per stirpes, and not per capita.

    In England, and in most of our sister states, under their statutes of distribution, nephews and nieces thus situated, take per capita, as next of kin in equal degree; but in this state, an early decision, giving a construction to our statute, and a long practice under it, have established a different rule.
    This was an appeal by Randall Cook and Eliza his wife, from decrees of the court of probate for the district of Litchfield, ordering a distribution of the estate of Abel Catlin, and accepting a distribution made under such order.
    The facts were found by the superior court at its session for the county of Litchfield, in September, 1856, and the case reserved for the advice of this court.
    Abel Catlin died, testate, in January, 1856, leaving no heirs except the children of deceased brothers and sisters, and the representatives of such children. The will was executed on the 3d day of June, 1853, at which time the last survivor of his brothers and sisters had been dead more than ten years. By this will he gave one-half his property to his widow, certain legacies, amounting in all to $>4,421, to certain of his nephews and nieces, and the remainder of his estate to his heirs; the language used by him in the last bequest being, “ The remainder of my estate I give to my heirs.”
    The whole question in the case was whether the nephews and nieces, under this clause of the will, took per stirpes or per capita. The distribution, under the order of the court of probate, had been made, as to them, per capita. The said Eliza Cook was the only child of Truman Catlin, the brother of the testator. By the distribution as made, her distributive share was but one-fifteenth of the residuum. If she took per stirpem, she was entitled to one-fourth. The whole estate, at the time of the execution of the will, and at the decease of the testator, consisted of personal property.

      Hollister and Graves, for appellants.
    1. By the term “ my heirs,” as expressed in the will, is meant the representatives of the testator’s brothers and sisters of the whole blood and their legal representatives. 1 Sw. Dig., 115. 2 Bla. Com., 174, 175.
    2. The heirs of the testator are those persons who would have inherited his estate had he died intestate, and the testator is to b^e presumed to have made his will with reference to the laws of descent where made. Rev. Stat., (ed. 1849,) 357, 358.
    3. In this case the testator, not having any children or their representatives, and his estate consisting wholly of personal property, bequeathed to his wife one-half thereof; precisely what our statute regulating the distribution of personal estate would have given her had he died intestate; and it may fairly be inferred that the testator had the provisions of our law in his mind, in making the residuary bequest, and intended to have the estate thereby, given, distributed to his heirs according to. its provisions. Harrison v. Mixon, 9 Pet., 483.
    4. If the testator intended to give his estate in equal shares to his nephews and nieces and their legal representatives, he would undoubtedly have so expressed himself in his will; a doubtful implication is not enough. Jackson ex dem. Bogart v. Schauber, 7 Cow., 187. Hayden v. Stoughton, 5 Pick., 536.
    5. The principle established by this court in the case of Gold et ux. v. Judson, 21 Conn. R., 616, is entirely decisive of this case. See also 1 Sw. Syst., 285, 293. 6 Conn. R., 34. 3 Pick., 363.
    6. The meaning of the word “ heirs,” is to be determined by the law of Connecticut; and there is a material difference between our statute of distributions and that of England. The English statute uses the term “ next of kin,” while the" language of our statute is, “ brothers and sisters and those who legally represent them.”

      Hubbard and Woodruffs for appellees.
    I. If the estate is to be distributed as intestate estate, it should be distributed equally to the nephews and nieces and those who represent th.em by virtue of the statute of distributions. The nephews and nieces take per capita, and not per stirpes, no brothers and sisters surviving; and claimants in equal degree take per capita under the statute.
    Such is the rule under the English statute of distributions, 22 and 23 Car. 2. 2 Bla. Com., 517. Toller on Ex’rs, 383. 2 Kent Com., 425. 4 Kent Com., 391, 400. Reeve on Descents, 32, et seq.
    So in New Hampshire, Vermont, Massachusetts, Rhode Island and New York. Reeve on Descents, 82, 99,125.

      The Connecticut statute of distributions is the same as the English statute, so far as relates to the appellant. Stat., ed. 1854, p. 500, § 49.
    II. But the estate is not intestate, and should be distributed according to the intent of the testator as expressed in his wifi. This intent is to be gathered from the whole will; and the testator, we think, clearly intended an equal distribution.
    1. The testator first made certain unequal and specific bequests to his nephews and nieces. So far as he intended they should take unequally, he thus made provision for it.
    2. There is no reason for presuming that those in equal degree were not equally the objects of his affection and bounty, except so far as he himself has made a distinction ; none for presuming that the testator intended that the appellant should receive four times as much as either of his other nephews and nieces.
    3. The natural import of the words used, gives the residuum to the claimants equally. The word “heirs” is descriptio personarum. The will is to be construed as if the testator had named each heir individually.
    Legatees always take per capita unless there is something in the will indicating a different intention. Collins v. Hoxie, 9 Paige, 81. Brinner v. Storm, 1 Sanf. Ch., 357. Ward v. Stow, 2 Dev. Ch., 509. Blackler v. Webb, 2 P. Wms., 383. Gold v. Judson, 21 Conn. R., 616.
    4. Those entitled to this estate claim in their own right, not by representation, and therefore take per capita. The bequest is not even to the children of the brothers and sisters of the testator, but directly to the heirs of the testator. The brothers and sisters of the testator had been long dead at the date of the will. The bequest was then understanding^ made, and was intended to be made directly to the claimants. Weld v. Bradbury, 2 Vern., 705. Knapp v. Windsor, 6 Cush., 156. Campbell v. Wiggins, Rice Ch. R., 10. Carrington v. Belt, 6 Mumf., 374.
   Hinman, J.

The testator by his will, after disposing of the bulk of his estate in making provision for his widow, and in legacies to nephews and nieces, and others, gave the remainder to his heirs in these words : “ The remainder I give to my heirs, excepting, however, that part of said remainder intended for Eliza Cook and Mary M Call, I give and bequeath to Cyrus Catlin and Guy Catlin, in trust for the sole and separate use of said Eliza and Mary, during their respective lives, and then to be paid to their heirs at law.”

The testator’s only heirs were his nephews and nieces and their representatives, being the children and grandchildren of his three deceased brothers, and of a sister also deceased ; and the question is whether the nephews and nieces take equal shares per capita, or whether they take, by right of representation, the share a brother or sister of the deceased, whose children they are, and whom they therefore represent, would take if living.

There is no doubt that in England, and probably in most of the states, under their statutes of distribution, nephews and nieces thus situated, as next of kin, would all take equally per capita, being all in equal degree of relationship to the deceased. 2 W’ms on Ex., 1080, 1081. 1 Sw. Big., 115.

But as our statute of distributions provides, in case there are no children or any legal representatives of them, that the residue of the estate not given to the wife, “ shall be distributed and set off equally to the brothers and sisters of the intestate, of the whole blood, and those who legally represent them and it is only after the failure of any representatives of brothers and sisters, of the whole or half blood, and where there are no parents to take, that the estate is given to the next of kin, in equal degree, it has been supposed that the legislature did not intend that nephews and nieces should, in any case, or under any circumstances, take as next of kin, but should take as representatives of their parents; and accordingly, as early as 1786, the superior court, in the case of Kenedy v. Kenedy, cited in 1 Sw. Dig., 115, and more fully reported in 1 Sw. Syst., 286, which is a case in all respects like this, decided that brothers’ and sisters’ children represent their parents, and take per stirpes the share their parents would take if living ; thus making the shares of the nephews and nieces to vary according to the number of children of each brother or sister. And Judge Swift remarks that as the statute on the subject has been repeatedly revised without making any alteration since that decision, it' must be considered that this construction has received the sanction of the legislature. He also says, in his System, (vol. i., p. 288,) that “ the decision of our courts is as correct as that of the English courts, and a more just and equitable construction of the statute.” However this may be, it certainly ought to require the strongest reasons for disturbing an ancient decision, under which estates have been settled and distributed for so long a period. We are not satisfied that any such reasons exist; and we therefore advise the superior court to reverse the decrees of probate appealed from.

In this opinion Storrs, J. concurred. Waite, C. J., was absent.

Decrees of probate to be reversed.