text:
    The Savings Bank of New-London against The Town of New-London.
    Bank stock owned by a savings society, there being no clause of exemption in its charter, is liable to taxation in the place where its office is established. [Two judges dissenting.]
    Depositors of money in a savings society are not, as such, stockholders or members of that society.
    This was an action of assumpsit, for money had and received, by the defendants, for the use of the plaintiffis; and for money paid, laid out and expended, by the plaintiffs, for the defendants.
    The following are the facts in the case, agreed to by the parties. The plaintiffs are a body corporate and politic, incorporated by the General Assembly of this state. The charter of this institution, and all acts in addition thereto, as published in the private and public statutes of the state, are made part of the case. On the 1st of October, 1847, the moneys deposited in this bank, by about 1600 depositors, amounted to about the sum of $300,0O0. A majority of these depositors, owning a like proportion of the deposites, were not residents or inhabitants of the town of New-London. Of the deposites in sums over 250 dollars, there was about 69,000 dollars; whereof about 32,000 dollars was held by 92 depositors, inhabitants or residents of New-London, and about 37,000 dollars, by 159 depositors, not of New-London, but of other towns in Connecticut. On the 1st of October, 1847, these deposites were invested, to the amount of 21,612 dollars, in bank stock of banks in this state, standing in the name of the Savings Bank of New-London; about 179,000 dollars in promissory notes, payable to the plaintiffs, with interest, which money at interest has never been taxed; and the balance of about 100,000 dollars, in public stock of the United States and other securities, whereof about 85,000 dollars was not taxable property, and the remaining 15,000 dollars has never been taxed. The treasurer of said Savings Bank was, and still is, cashier of the Union Bank in New-London; and all moneys received and paid by the former, were and are received and paid through the latter; that being the place where the business of said Savings Bank was and still is transacted. The Savings Bank has generally, if not uniformly, paid the taxes on its bank stock, laid prior to the law of 1846, but not since.
    New-London,
    July, 1849.
    The assessors of the town of New-London, claiming that the plaintiffs were liable to be taxed for their Connecticut bank stock, against the rernonstrances of the plaintiffs, assessed them therefor in the list of the town for the year 1847; and the town, at their annual meeting in October, 1847, laid a tax upon said list, which the plaintiffs refusing to pay, the collector levied upon and sold two shares of the stock of the Union Bank in New-London, belonging to the plaintiffs, of the value and for the sum of 230 dollars, and gave to the purchaser the necessary certificate so as to vest the title in him, and applied the avails to the payment of such tax and incidental charges.
    The case, embracing these facts, was reserved for the advice of this court, on the question whether the Savings Bank was liable to be taxed as aforesaid, on account of said bank stock. No question was made as to the form of action, nor as to the regularity of the proceedings of the assessors and collector in regard to the tax.
    Strong and Crump, for the plaintiffs,
    contended, That the bank stock of the plaintiffs, when taxed, was not liable to taxation. In support of this position, they urged the following considerations.
    1. The law for imposing a tax upon the owners of bank stock, so far as relates to such stock held by savings societies, (they being authorized to invest their deposites in such stock,) has, for twenty-five years, received a practical construction in accordance with the claim made by the plaintiffs in this case.
    2, If it be said, that the tax law embraces the owners of all stock in any bank or insurance company. who are to be taxed therefor ; and that the savings societies are such owners, and therefore to be taxed ; this mode of argument would prove, that they are also to be taxed for all their moneys at interest well secured. It would also tax the banks of discount and deposite for all their loans on good security. The three and an half millions of bank capital in Hartford, with loans over five millions, would add 300,000 dollars to the list of that town. These consequences will hardly be claimed or admitted,
    3. The principle on which the exemption claimed by the plaintiffs rests, is, that sound policy dictates it in relation to these societies ; the whole community-especially the taxpaying community--being interested in encouraging the depositors to save their earnings in this way. And the rate of interest paid by savings societies, and the limitation as to the amount of deposites, secure the public against these institutions being made use of, by capitalists, to escape taxation.
    4. Until the act of 184t, the legislature had refused to tax moneys of any amount, deposited in savings societies. The act of that year subjects the owners of all deposites exceeding 250 dollars, to be taxed for the excess; and, according to the claim now made, these depositors would be doubly as individuals, and then through the poration. Our law has guarded against this hardship, in other cases, The owners of mortgaged real estate are allowed to deduct from their lists the moneys at interest taxable against them. Stat. 608 $ 27. The act of 1826, designating the place for assessing corporations, saves the VOL. 20. liability of corporations whose stock is otherwise liable to be assessed and taxed. Stat. 610. $33.
    5. To subject savings societies, in the manner claimed by the defendants, would produce manifest injustice, as between the towns in which the depositors reside and those in which the offices are located. For an instance, the depos-ites in the Hartford Savings Society were, in 1848, over 1,300,000 dollars. The depositors, residing, for the most part, elsewhere than in hartford, would, upon this principle, be charged with the Hartford town, city and other taxes levied on the stocks in which the funds of the institution are invested. The act of 1847 (Stat. 610. $ 34.) confirms this view. First, it exempts the real estate required and used by the bank in its banking business. Secondly, it in no way subjects the personal estate of the bank, in any instance, to taxation. Thirdly, it is only designed to prevent the with-drawa~ from taxation of the real estate within the limits of any corporation, (this being regarded as the proper basis in that cornmunity,) whilst it excepts that required for its own use in its appropriate business.
    McCurdy and G. W. Goddard, for the defendants,
    after remarking, that all taxation is matter of positive regulation, and the only question is, what does the law provide-contended, 1. That previous to the passing of the law of 1840, (Stat. 606. $ 20.) a savings bank was taxable for property holden by it. In the first place, the general tax law pro~ vides, that it shall be the duty of the assessors to receive the lists of the inhabitants of the town ; and upon these lists all taxes are laid. In reference to bank stock, the statute uses this explicit language: "The owners of stock in any bank or insurance company in this state, &c. shall be taxed for." Stat. 605. $ 17. It is a part of the case, that the plaintiffs are owners of the bank stock in question. Sec~ ondly, a savings bank is not within the sauing clause exempting corporations whose stock is liable to taxation. Depositors in savings~banks are not stockholders, in any sense of the term. They are not members of the corporation. Priv. Stat. 1048. 2.
    2. That the act of 1846, taxing depositors in savings banks, did not repeal the former laws. For, in the first first place, that act is not inconsistent with the former laws. Secondly, the act of 1826, taxing corporations, was passed prior to the charter of this institution, and therefore cannot be considered as an infringement of its corporate powers. Thirdly, it is a right inherent in the sovereign power of the state, to imposes taxes on corporations after their incorporation, except where a special exemption has been granted.
    3. That if the effect of the construction claimed by the defendants, is, to subject certain property to double taxation, this does not invalidate the law, nor render it inoperative. This it is within the unquestionable power of the legislature to do. Providence Bank v. Billings, 4 Pet. 514. Holton v. City of Bangor, 23 Maine R. (10 Shep.) 264. And there may be substantial reasons of policy in taxing doubly deposites in savings banks over 250 dollars. These institutions were not created for the benefit of such depositors.
    4. That the property may be compelled to pay local taxes, is no objection. It should pay for the benefits of its location. All property held in trust pays local taxes. Ontario Bank v. Bunnel, 10 Wend. 186.
   Ellsworth, J.

By the statute law of this state, all real property, and certain enumerated personal property, is made liable to taxation. It matters not, whether it is owned by individual persons, or by corporations. The plaintiffs are owners of the stock in question, and in its character, it belongs to the class of enumerated taxable property ; nor do we discover in the character or objects of the plaintiffs) or in any provision of their charter, an exemption from the general law.

It is true, that in the Hartford Fire Insurance Company v. Hartford, 3 Conn. R. 15. the court held, that a corporation was not an "inhabitant” of Hartford, and so, did not reside in Hartford; but there has never been a doubt that by the existing law, corporate bodies are “owners” of property. The cases cited at the bar, are numerous and decisive, to prove, that corporations are to be treated like other owners of the same property, where no provision is made to the contrary.

If then, the plaintiffs are owners of this stock, they must be taxed for it, unless exempted by some general law ; for, as we have said, there is no clause of exemption in their charter. As expounders of the law, we cannot be governed by any friendship or partiality for savings banks, because they are designed to assist persons who habitually labour, or who may have small means to invest; but we can only make the law our guide if that leads us to an unexpected or unsatisfactory decision, the legislature must grant relief.

Were it not for the statute of 1826, every corporation, not having a clause of exemption in its charter, would be liable to be taxed for all its taxable property, like individuals~ That statute, although evidently designed to prescribe the place for assessing corporations, contains a principle thrown into a proviso, of an independent and very important character, on this subject. It declares, that the personal property of corporations, whose stock is now taxable, is not to be assessed or taxed. The proviso does not embrace the real estate of any corporation ; nor does it embrace corporations whose stock is not taxable ; nor corporations whose capital is not in the form of stock; nor perhaps those whose stock was not liable to be taxed, when the law was passed; for the word "now" is used. With the exceptions contained in this proviso, we think the statute is peremptory.

We have been told, that, as money at interest is taxable by the general law, we must, if we carry out our principle, hold, that loans made by banks are to be taxed. It is sufficient to say, that the stock of banks, being of itself taxable, their personal property is exempted, by the law of 1826. We are not required to answer further; nor are we prepared to say, that those corporations whose stock is not liable to be taxed, can plead exemption from the general law.

If a manufacturing corporation owns real estate, or bank stock, or rail-road stock, or city bonds, or has money at interest, all agree it may be taxed. So an individual may be taxed for money at interest. If now, several individuals put their money into the hands of a trustee, or get up a savings bank, and thereby make loans of their money, how shall we, as expounders of the law, hold these loans exempt from taxation, unless we find the exemption in the statute book? Or, if such corporations invest their money in such property as would be liable to be taxed, were it owned by individuals, we see not but they may be taxed for it, like individuals,

Since by the law of 1846, the deposite of any one person, exceeding 250 dollars, may be taxed for the excess, we have been pressed with the argument, and it at first struck us as quite worthy of consideration, that the plaintiffs come within the equity of the law of 1826; but, on reflection, we do not yield assent to that claim. Deposites are not stock, within the most enlarged use of the word; nor are they regulated as such, but are more like deposites in other banks, drawing a stipulated interest. They are money put into the hands of trustees, to be loaned out; and whether it comes to the trustees from one man or many men, makes no difference in view of the law. To some degree, this may lead to double taxation ; but taxation, at best, is unequal and arbitrary, and under the present law, is double, in case of banks whose real estate (not used for a banking-house) is taxed, while their stock is taxed to individuals who own it.

We advise judgment to be rendered for the defendants.

In this opinion, Church, Ch. J., and Hinman, J., concurred.

Waite and Storrs, Js., dissented.

Judgment for defendants.


source: Caselaw Access Project

author: Waite, J.

license: Public Domain

text:
    Frink and others against Lawrence.
    Though a bill in equity for an injunction against a public nuisance in navigable waters, will not generally be sustained, in favour of a private individual ; yet where the party complaining will sustain an injury distinct from that done to the public at large, and especially if it be irreparable, and a court of law cannot afford adequate remedy-this relief will be granted.

      A and B were owners of contiguous lots of land, bounded, on the Easterly side, by a harbour; A's lot lying South of B’s, A owned a wharf extending from his land into the harbour, at the further end of which was a short wharf at right angles with the principal one, the whole being in the form of a -. This wharf, on the North side of it, where vessels principally lay, was a safe and convenient one, and much resorted to. B was about driving a connected row of piles from the South-East corner of his land to the NorthEast end of A's wharf in such a manner as to entirely obstruct the passage of vessels from the waters of the harbour to the North side of A's wharf; which would greatly impair the value of his property. This obstruction was not contemplated by B, as part of a wharf which he intended to construct adjoining his land. On a bill in equity, brought by A against B, to restrain him from making such obstruction, it was held, that A was entitled to the relief sought.
    New-London,
    July, 1849.
    The right of an individual to build a wharf in front of his land in navigable waters, is subject to the qualification, that such wharf does not improperly impede the public navigation ; the object of the law conferring this right being to benefit commerce.
    This was a bill in chancery, praying for an injunction against obstructing the navigation of vessels to the plaintiff’s wharf, in the waters of New-London harbour. The cause was referred to a committee, who made their report to the superior court, holden, by adjournment, at New-London, in July, 1849.
    The material facts, embraced in the report, are the following. The plaintiffs are the owners of a lot of land, lying in the city of New-London, bounded on the Easterly side, by the waters of the harbour, with a wharf extending Easterly from their land, a considerable distance, into the harbour. At the outer or Easterly end of the wharf, are projections on each side, giving it the form of a -. This wharf has been built for a period of more than sixty years, and during all that time, has been exclusively owned and possessed by the plaintiffs, and those from whom they derived their title. The
    defendant is the owner of another lot of land, lying on the North side of the plaintiffs’ land, with a wharf con- ected therewith, extending also, a considerable distance, into the waters of the harbour. Between these two wharves, is a large and convenient basin, and the space between the Eastern extremities of the two wharves, has always been used in common by those having occasion to pass with boats and vessels to the wharves ; and the right of passing through this space, to and from the North side of the plaintiffs’ wharf, has always been enjoyed, by them and those under whom they claim. That
    portion of the basin, which is adjacent to the plain- Frink tiffs' wharf, is a very safe and convenient one ;-and is more frequented by vessels belonging to others than any other in the harbour, on account of its greater convenience and safety ; and the business at the wharf is principally done on the North side.
    At the time of commencing this suit, the defendant was about to drive a row of piles from the South-East corner of his land, to the North-East end of the plaintiffs’ wharf, and connect them with ties or caps, in such a manner as entirely to obstruct the passage of all boats and vessels from the waters of the harbour to the North side of the wharf. This obstruction, the committee found, would seriously impair the value of the plaintiffs’ property, and would serve no other purpose, than to separate the plaintiffs’ dock from the rest of the harbour, except to form a part of a wharf, should the defendant conclude to construct one, which they did not find was his intention to do. The report embraces divers other facts, for the purpose of enabling the court to determine, whether the piles, if driven as contemplated by the defendant, would be above or below the dividing line of the right of wharfage belonging to the two parties. But as the court did not express any opinion upon that question, that part of the report is here omitted.
    The question as to what decree should be passed, was reserved for the advice of this court.

      McCurdy and H. Willey, for the plaintiffs,
    among other points not embraced by the decision of the court, and therefore omitted here, contended, 1. That the defendant had no right to obstruct the passage into the plaintiffs’ dock, in the manner he was about to do. The obstruction proposed by the defendant, is a single row of piles across to the North edge of the plaintiffs’ wharf, not for the purpose of enjoying a wharf privilege, or extending a wharf, but merely to fence off the water, and prevent access to the plaintiffs’ wharf. By this no benefit could accrue to the defendant, but great inconvenience would result to the public, and great damage to the wharf property of the plaintiffs. If the defendant had a right to wharf out on this line, he would not have a right to drive such a row of piles. On common law principles, the enjoyment of one's property must be exercised in a reasonable manner. Broome's L. Max. 165,
    2. That the defendant had no right to build out a wharf, in the line and to the extent indicated by the piles. The right to wharf out in front of one’s land, is on condition that: it does not injure navigation, but aids it. East-Haven v. Hemingway, 7 Conn. R. 186. Chapman v. Kimball, 9 Conn. R. 38. Ang. on Tide Waters, 150. 1 Sw. Dig. 150. But here it appears, that if the projected row of piles were a wharf, it would be injurious to navigation, by destroying the usefulness of the dock as a harbour. It would materially interfere with the rights of the public, constituting, in fact, a nuisance.

    3. That as the plaintiffs would suffer an injury, different from, and more severe than the public at large, they have remedy by injunction. O’Brien v. Norwich and Worcester R. R. Co., 17 Conn. R. 372.

      Foster and Lippitt, for the defendants,
    contended, 1. That wharves may be erected, in navigable waters, by riparian proprietors, at pleasure, if they do not interfere with the channel. 1 Sw. Syst. 341. 1 Sw. Dig. 109. Ang. on Tide Waters, 157. 150. 127. 162,3. 7 Conn. R. 186.202. 9 Conn. R. 38. 40. 41.
    2. That this suit is not adapted to the injury complained of; the remedy being by indictment or information.
   Waite, J.

We have had occasion, in several recent cases, to consider the question, whether a private individual can sustain a bill in equity, for an injunction against a public nuisance in navigable waters. Bigelow v. Hartford Bridge Company, 14 Conn. R. 565. O’Brien v. Norwich and Worcester Rail-Road Company, 17 Conn. R. 372. Seeley v. Bishop, 19 Conn. R. 135. And we held, that such relief will not be granted, unless it appears, that the party complaining will sustain a special or peculiar damage-an injury distinct from that done to the public at large. But on the other hand, it was conceded, that if such damage would accrue, the relief might be granted. Indeed, such now seems to be the well recognised rule in equity, especially where the object is to prevent some irreparable injury, for which, under the circumstances of the case, the law cannot afford adequate remedy. City of Georgetown v. Alexandria Canal Company, 12 Peters, 98. Corning v. Lovoere, 6 Johns. Ch. R. 439. Crowder v. Tinkler, 19 Ves. 616. 2 Sto. Eq. 203, 4. Eden on Injunc. 162.

In the present case, the committee have found, that the plaintiffs are the owners of a valuable wharf in the harbour of New-London ; that the dock, on the North side of it, is a very safe and convenient one, much frequented by vessels ; and that the business done at the wharf, is principally with vessels lying upon the North side of it. The defendant, at the time of commencing the suit, was about creating an obstruction, which would exclude the access of all vessels to that dock, and to that side of the wharf.

If he be permitted to do this, a serious and irreparable injury will be done to the property of the plaintiffs. A convenient dock will be destroyed, and the value of the wharf greatly impaired. The obstruction complained of, would manifestly be a public nuisance, and the injury clearly entitles the plaintiffs to the relief they seek.

It has, however, been claimed, that the defendant, as owner of land adjoining navigable waters, has the exclusive right of wharfage in front of his land; and that the piles which he intended to drive, would be within the limits of that right. East-Haven v. Hemingway, 7 Conn. R. 203. But the committee have not found, that the acts complained of, would be done in the exercise of that right. Hence, it becomes unnecessary to enquire, whether the facts reported by them show that the defendant has the right of wharfing in the line in which the piles were about to be driven ; a claim denied on the part of the plaintiffs. For we are entirely satisfied, that the contemplated obstruction, whether placed in front of the defendant’s land or not, would be a public nuisance, and may be treated as such.

The law conferring upon individuals the right of building wharves in front of their lands, in navigable waters, does not confer an unlimited privilege, but annexes this qualification, that such wharves do not improperly impede the public navigation. When this is done, they become public nuisances. 7 Conn. R. 202.

The object of the law is, to benefit commerce and facilitate the loading and unloading of ships, and not for the purpose of destroying neighbouring docks and wharves. The King v. Russell & al., 4 B. & Cress. 566. (13 E. C. L. 254.) The King v. Ward, 4 Adol. & Ell. 384. (31 E. C. L. 92.) The King v. Tindall & al., 6 Adol. & Ell. 143. (33 E. C. L. 26.) Regina v. Randall, 1 Car. & Marsh. 496. (41 E. C. L. 272.)

As the defendant, upon the report of the committee, has failed to justify the acts he was about to perform, we advise the superior court to grant the prayer of the plaintiffs’ bill, and decree a perpetual injunction.

In this opinion the other Judges concurred.

Decree for plaintiffs.


author: Hinman, J.

text:
    Lord and others against Moore and others.
    Where a testator having a wife and four children, after making specific devises to each of them, directed, that the residue of his estate should be put into the hands of trustees, with authority to receive the income thereof, and to “divide the same equally between my said wife and said children, and their heirsit was held, that these words gave to the wife, a share of such income, equal only to that of one of the children ; there being nothing else in the will to shew a different intention.
    This was a case agreed upon by the parties, and submitted to the superior court, under the statute of 1848.

      George Moore, of Lyme, in this state, having made his will, bearing date, February 25th, 1846, died, on the 18th of November, 1848, leaving his wife, Emily Matilda Moore, and four children, one of whom was then of adult age, and the other three, minors. He left also real and personal estate, inventoried at 38,592 dollars ; the debts against his estate amounting to about 12,000 dollars.
    The testator, by his will, gave to his wife, the use and improvement of all his real estate in Lyme, (except a certain farm given to his daughter,) during the time she might remain unmarried after his decease. He also gave her all his furniture of every kind, and “all the stock, hay, grain, provisions and furniture,” which he might leave at his decease. After making specific devises to each of his children, he proceeded, in the next section of his will, as follows : “ I give, bequeath and devise all the rest and residue of my estate of every kind and description, which I may own at my decease, and which may remain after paying my debts and the expenses of settling my estate, to my wife, Emily Matilda, and my friends, Charles C. Griswold and John Noyes, to be by them bolden in trust for my said wife and all the children which I may leave, until all the said children shall become of age, and the death or marriage of my wife. And I do authorize and empower them to manage and take care of the same, at their discretion and according to their best judgment-to receive all the interest and income thereof, and divide the same equally between my said wife and said children and their heirs. And in case the share or shares of any one or more of said children shall, in the opinion of the trustees, be inadequate for the proper support and education of such child or children while under age, the trustees are hereby empowered to apply so much of” the other shares of said income as they may deem necessary for the proper education and maintenance of such minor child or children. And after all my said children shall become of age, and after the decease or marriage of my said wife, I order and direct, that the property herein given in trust, be so divided among said children and their heirs, as that, with the real estate herein given to my two eldest children, at the prices herein specified, they shall be made equal; and that in case of the marriage of my wife, she shall be entitled to receive, upon the division of my estate, a share equal to one of our children.”
    New-London,
    July, 1849.
    Two questions arose in this case : 1. Whether Emily Matilda Moore, the widow of the testator, is entitled to take, as her share, one-half of the income of the trust property, or only a share equal to that of one of the children 1 2. Whether she was entitled to the farming utensils, carriage, wagons and harness; it being admitted by the parties, that the testator, during his life-time, was in the habit of calling these articles, his "barn furniture."
    The case was reserved for the advice of this court; but before it was submitted for decision, the parties, by an arrangement between themselves, withdrew the second question.

      Mc Curdy and H. Willey, for the plaintiffs,
    [the children,] contended, 1. That the language of the will, in its common acceptation-according to its ordinary meaning-shows, that the income of the trust property is to be divided per capita. It is to be “ equally” divided between these devi-sees ; and to give one as much as all the others, would be an unequal division.
    2. That this construction is in accordance with the decisions. Weld v. Bradbury & al., 2 Vern. 705. Bladder v. Webb & al., 2 P. Wms. 383. Pemberton v. Parke & al., 5 Binn. 601.
    3. That this is manifest from the whole will. To each of the five individuals named in his will as objects of his bounty-his wife and four children, by name-the testator makes separate provision-such as he supposed was suited to their respective circumstances ; and then he puts the residue of his estate into the hands of trustees, the income of which is to be divided equally between the same individuals. Did he intend that one of them should take four-eighths, and the others but one-eighth, each, of such income ?

      Foster and Chadwick, for the defendants,
    in behalf of Mrs. Moore, contended, That she was entitled to one-half of the income of the trust property, during the continuance of the trust. They insisted,
    1. That this appears from the fair construction of the words creating the trust. The objects of the testator’s bounty in that clause, are two ; his wife being one, and the children, unitedly, the other. “To divide the same equally between my said wife and said children,” requires a division of the property into moieties, and of the recipients into classes. There are, indeed, some authorities sanctioning a contrary construction. See 2 Pow. Dev. 330, 1. Jarman on Wills, 111, 2. and the authorities there cited. But these authorities are not based on principle, and seem to do violence to the intent of the testator, in each case. In the leading case of Blackler v. Webb, it is stated, that the Lord Chancellor at first seemed inclinable to the construction per stirpes, but finally decided the other way, Powell says, in the page above referred to, " it may be conjectured, that the testator has a distribution according to the statute [per stir-pes] in his view ;" and Jarman says, " this mode of construction [per capita] will yield to a very faint glimpse of a different intention in the context." It would seem, that these writers, and the courts also, were not satisfied, that the intent of the testator was carried into effect, by this construction; and they were therefore prepared to adopt the contrary construction, whenever they had the slightest excuse for so doing. See Jackson d. Hunt & al. v. Luquere, 5 Cowen, 221. Bool & ux. v. Mix, 19 Wend. 119.
    2. That if the construction of this clause in the will, taken by itself, be so that the widow could take but one-fifth of the income of the trust property, still taking the whole will together, it is manifest, that the testator intended that she should take one-half. The single fact, that this widow is left with a family of four young children to nurture and provide for, goes very strongly to show, that her husband did not intend to turn her off with only one fifth of the income from the bulk of his property, giving four-fifths to his children, some of whom were at an age to require but a small portion of it;  and none so situated as to require as much as the mother. There is here something more than what Jarman calls " a very faint glimpse” of an intention that the wife should have more than a child-in other words, that the wife should have one-half, and the children, as a class, the other half.
    Again, on the division of the property, on the marriage of the widow, should that happen, she is to receive a share of the capital, equal to that of one of the children. It cannot be believed, that the testator meant to hold out inducements to his wife to marry again. But if she is to take only one fifth of the income of the trust property, she would be better off, in a pecuniary point of view, to get married, than to remain single ; for by getting married, she gets one-fifth of the capital absolutely. There can be no clearer evidence of an intent to give her one-half the income, while she remains single, than thus limiting her to one-fifth of the capital, on a division, after her marriage. The case of Brett v. Horton, decided by Lord Langdale, M. R. in 1841, is directly in point. It is reported, 5 Jurist, 696.

       The case shews, that the ages of the three minor children respectively, were eighteen, sixteen and seven.

   Hinman, J.

The only question now remaining for our decision, in this case, is, whether the will of Mr. Moore gives to his widow one-half of the income of certain trust property; or, whether she takes only a share in it, equal to a share of one of her children. [The judge giving the opinion of the court here stated the clause of the will under which the question was raised.]

We are of opinion, that these words give to the wife only an equal share with one of the children. The words, “ wife and children” are used merely as descriptive of the persons who are to take shares in this income; and we see nothing in the clause itself, nor in the connexion in which it stands, to show, that any other than the natural import of the words, “ divide the same equally between my said wife and said children,” is to be given.

It seems to be admitted, that the authorities sanction this construction ; particularly the leading case of Blackler v. Webb, 2 P. Wms. 385, But it is said, “ that this will yield to a faint glimpse of a different intention.” This may be so ; but we do not find, in this will, any such different intention. The mere fact, that there were four children, and therefore, that the wife’s share is only one-fifth of the property, is wholly insufficient for this purpose. Any weight given to this fact, would be rather looking away from the testator’s will to the situation of his family, and endeavouring to construe the words used, in reference to what might be supposed to have been a proper disposition of his estate. We do not feel authorized to do this; and there does not seem to be any such ambiguity as to require it. The words of the will appear to be sensible, in themselves ; and they are not insensible, with reference to his family, or any extrinsic circumstance. Where this is so, we can only say what is the meaning of the words used.

The question raised, in regard to whether certain articles belong to the widow, under the clause in the will giving her " all the furniture of every kind,” having been settled by the agreement of the parties, requires no further notice.

We advise the superior court, that Mrs. Moore takes, under the will of her husband, such share of the income of the trust property as is equal to a share of one of the testator’s children.

In this opinion the other judges concurred.

Judgment for plaintiffs.


text:
    Bowen against Bowen and others.

      A conveyed a tract of land to B, by a deed to which was annexed the condition, that if B should pay 100 dollars to C and certain other sums to certain other persons, in one year from the decease of A, the deed should be good and valid, otherwise null and void. On the 14th of February, 1841, A died; and within one year from that time, B paid to the several persons named in the condition of the deed the sums to which they were respectively entitled, except the 100 dollars required to be paid to C. On the 7th of March, 1842, B tendered that sum, with interest, to C; which C did not accept. On a bill in chancery, brought by B aganist C and the heirs at law of A, praying for a confirmation of B’s title and an injunction against the further prosecution of an action at law then pending, brought by D, one of the heirs at law of A, to recover possession of the land, it was held, that B was entitled to the relief sought.
    In such case, B having a claim against C, founded on a promissory note, sought to have it set off against the amount so payable by him to C; but these claims being distinct and independent, and it not being shown that C was insolvent; it was held, that there was no ground for decreeing a set-off.
    The rule, in equity, as well as at law, before the statute of 1848, was, that if a defendant had no interest in the result of the suit, he might be a witness ; but if he had such interest, he could not be called by a co-defendant.
    Therefore, where D, one of the defendants in the suit referred to, on the hearing before the committee, offered his co-defendant C, as a witness in behalf of D, to testify to matters for B’s benefit, but in no way to affect the rights or claims of C ; but it appeared that C, though not one of the heirs of A, was otherwise materially interested in the suit, and liable to be affected by a decree in favour of B; it was held, that C was an incompetent witness.

      Windham,
    July, 1849.
    This was a bill in chancery, brought by Silas Bowen against Amasa Bowen and the heirs at law of Eleazer Bowen, deceased; praying for the confirmation of the plaintiff’s title to certain real estate, which the plaintiff claimed under a conditional deed from the said Eleazer; and also praying for an injunction against the further prosecution of an action at law to recover possession of the same, brought by Millard Bowen, one of the defendants.
    The cause was referred to a committee, who made a report to the superior court, holden at Brooklyn, at the January term, 1849. The material facts embraced in that report, are the following.

      Eleazer Bowen, the father of the plaintiff, by deed dated April 27th, 1838, conveyed to the plaintiff and his brother Anthony Bowen, a certain farm of land situated in the town of Thompson, containing about 140 acres. To this deed was annexed a condition, that if the grantees should pay to Amasa Bowen one hundred dollars, to Esther Tucker two hundred dollars, and to seven other persons therein named one hundred dollars each, within one year after the decease of himself and wife,-the deed was to be good and valid in law, otherwise to be null and void.
    In 1840, Anthony Bowen conveyed all his interest in the farm to the plaintiff; and on the 14th day of February, 1841, Eleazer Bowen, the grantor, died ; his wife having previously died. Within one year from the death of the grantor, the plaintiff paid to the several persons named in the condition of the deed, the sums to which they were respectively entitled, except the one hundred dollars, required to be paid to Amasa Bowen, one of the defendants.
    In 1838, Amasa Bowen became indebted to the plaintiff, by a promissory note, in the sum of sixty dollars, payable to the plaintiff, or order ; which, the plaintiff, for the purpose of collecting the same, or having it apply, by way of set-off, against the sum payable to the maker, by virtue of the deed, indorsed to one Lorenzo Wakefield, in trust, for his own benefit; and then caused a suit to be brought thereon, in the name of Wakefield, by process of foreign attachment, and himself and said Anthony Bowen, to be copied  as the debtors of Amasa Bowen.
    Judgment having been rendered in favour of Wakefield, in that suit, the plaintiff afterwards caused another like suit to be brought on that judgment. And, again, in 1842, the plaintiff caused a third suit to be brought on the judgment rendered in the second suit, and himself to be copied as the agent and debtor of Amasa Bowen; and judgment was rendered in favour of Wakefield, for 159 dollars, 38 cents, damages, and 17 dollars, 13 cents, costs of suit. Execution having issued upon this last judgment, by an arrangement made between the plaintiff and Wakefield, the officer endorsed upon the execution that the, plaintiff, as garnishees had paid him 103 dollars, 38 cents, being the amount due Amasa Bowen, by virtue of the deed, with legal interest, and made return of the execution so endorsed.
    On the 7th day of March, 1842, and after the expiration of one year from the decease of Eleazer Bowen, the plaintiff tendered to Amasa Bowen, the sum of 100 dollars, 38 cents, the amount then due him by virtue of the deed; which the latter refused to accept.

      Amasa Bowen, at the suggestion and by the advice of Millard Bowen, one of the defendants, in 1834, made an assignment of his claim to Wilbur Bowen, to prevent a set-off of the note, and for no other purpose. But no notice of that assignment was given to the plaintiff, until after the 14th day of February, 1842.

      Millard Bowen, as one of the heirs of Eleazer Bowen, claiming that the deed had become void by reason of the non-payment of the sum of one hundred dollars to Amasa Bowen, commenced an action of disseisin against the plaintiff, to recover, as such heir, one undivided eighth part of the farm conveyed to the plaintiff and his brother Anthony ; which suit is still pending.
    The object of the plaintiff’s bill is to have his title to the property, conveyed by the deed of his father, confirmed, upon such terms as the court may deem reasonable, and Millard Bowen enjoined against the further prosecution of his action at law.
    After this report had been returned to court, Millard Bowen filed a remonstrance against its acceptance, upon the ground, that before the committee, he offered Amasa Bowen, one of the defendants, as a witness in his behalf, to testify to facts and matters for his benefit, but in no way to benefit or affect the rights or claims of Amasa himself; and the committee rejected the testimony.
    The superior court found the allegations in the remonstrance to be true ; and reserved for the advice of this court the following questions:
    1. Shall the report be rejected ?
    2. If not, what decree shall be rendered upon the same ?

      Welch and F. Hovey, for the plaintiff,
    contended, 1. That the testimony of Amasa Bowen was correctly rejected. In the first place, he was a party to the record. At law, it is clear that such a person cannot be admitted as a witness. Stark. Ev. 1961. (3rd ed.) Page v. Page, 15 Pick. 368. 373. And on this point the rule in equity is the same as at law. Sw. Ev. 115, 116. Johnson v. Blackman, 11 Conn. B. 347. 2 Slo. Eq. 742. §1527. 1 Greenl. Ev. 429. Secondly, he was, prima facie at least, directly interested in the subject matter of controversy ; and if, under any circumstances, or for any purpose, his testimony could be admitted, it was incumbent upon the party offering him to show what those circumstances were, and what was intended to be proved by him-matters which do not appear from the report of the committee. As the case stands, he must be regarded as incompetent by reason of interest.
    2. That the plaintiff was entitled to a decree against all the defendants for the relief sought. Walker & al. v. Wheeler & al. 2 Conn. R. 299. 301. Popham v. Bamfield, 1 Verm. 83. Grimston v. Bruce & ux., 1 Salk. 156. 2 Sw. Dig. 84.

      T. E. Graves, for the defendants,
    contended, 1. That the testimony of Amasa Bowen was improperly rejected. In the first place, Millard Bowen had a right to examine his co-defendant as to facts which would not affect the witness ; for even at common law, a party is not excluded, unless he has an interest in the event. Worrall v. Jones & al., 7 Bing. 395. (20 E. C. L. 177.) Ward v. Hay don & al., 2 Esp. R. 552. Marsh v. Smith & al., 1 Car. & Pa. 577. (11 E. C. L. 478.) In chancery, the rule is more liberal than at common law. A plaintiff may examine a defendant, and a defendant a co-defendant, as a witness, where the interest of the witness is not to be affected by the testimony. 1 Greenl. Ev. §361. 1 Daniel's Ch. Pr. 1035. n. Robinson v Sampson, 25 Maine R. 380. Man v. Ward, 2 Atk. 228, 9. Palmer v. Van Doren, 2 Edw. Ch. R. 192. Wright v. Wright, 2 McCord’s Ch. R. 205. Sharpe v. Morrow, 6 Munro, 305. McLaren v. Hopkins, 1 Paige, 18. Kirk v. Hodgson, 2 Johns. Ch. R. 550. Butler & al. v. Elliott & al., 15 Conn. R. 187. Secondly, the case presented by the record is that of a disinterested witness. A. Bowen was offered, by a co-defendant, to prove facts which could not affect his interest, either as to costs, or any other matter in question. He was offered only to give disinterested testimony. It would have been quite early enough to reject his testimony, when it appeared to be otherwise.
    2. That upon the facts found, the court will not grant the relief sought. In the first place, no payment or tender having been made within the time limited, the estate of the plaintiff is forfeited. Wheeler & ux. v. Walker, 2 Conn. R. 196. Bradstreet v. Clark, 21 Pick. 393, 4. 1 Shep. Touch. 136. (7th Eng. ed.) Socondly, by reason of the condition broken, Millard Bowen, an heir at law, has entered, (and no one but an heir could enter,) and brought an action of dis-seisin, which is now pending. He has thus obtained a legal right. Willard v. Henry, 2 N. Hamp. 120. Mary Por-tington’s case, 10 Co. 41. Avelyn v. Ward, 1 Ves. 422. Thirdly, the rule by which courts of equity grant relief, on condition broken, is this. In cases of forfeiture, for breach of condition or covenant other than to pay rent, no relief will be granted in equity, except on the ground of accident, mistake, fraud or surprise, even though the breach is capable of a just compensation. 2 Sto. Eq. §1323. See also Eaton v. Lyon, 3 Ves. jr. 692, 3. Hill v. Barcley, 16 Ves. 403-5. S. C. 18 Ves. 58. Eden on Injunc. 22, 3. Northcote v.
      Duke, Ambler, 513, 14. Rolfe v. Hawes, 2 Price, 206. Bracebridge v. Bulkier), 2 Price, 315. And this rule harmonizes in principle with other branches of equity jurisprudence. 1 Sto. Eq. ch. 4 to 6 inclusive. 1 Fonb. Eq. b. 1 .ch. 3. §3. Fourthly, the case is not within the admitted exceptions. The breach was not the result of accident, mistake, fraud or surprise ; but was the voluntary act of the plaintiff, done with full knowledge of the consequences. “If a man come to be remediless at common law, by his own negligence, he shall not be relieved in equity.” 1 Fonb. Eq. b. 1. ch. 3. §1.

      3. That the court will not decree a set-off, as between the plaintiff and Amasa Bowen. In the first place, independent claims, at the date of this bill, could be set off only in cases of insolvency or absence from the state. Stat. 50. tit. 2. §32. (ed. 1838.) Gaylord v. Couch, 5 Day 228. McLean v. McLean, 1 Conn. R. 397. 4 Conn. R. 297. 6 Conn. R. 14. 8 Conn. R. 325. But here neither of these essential requisites is alleged or found. Secondly, there was no debt due from the plaintiff to A. Bowen. It was at his election to fulfill the condition, or forfeit the estate ; and no one but the heir could take advantage of the forfeiture.
    4. That the process of foreign attachment was fruitless.

         This word (“copied”) I have taken from the record. Its meaning, even out of the state, will probably not be mistaken. It is quite domesticated in our juridical vocabulary, and is about as classical as its Massachusetts relative “ trusteed,” equally well domesticated there. R.

   Waite, J.

The first question presented upon this record, is, whether Amasa Bowen, one of the defendants, was an admissible witness for Millard Bowen, his co-defendant. The rule in equity, as well as at law, before the recent statutes, was, that if a defendant had no interest in the result of the suit, he might be a witness; but if he had such interest, he could not be called by a co-defendant.

It was upon that principle, that a defendant in a recent case before us, was holden to be a competent witness. Butler v. Elliott, 15 Conn. R. 205. It appeared that he had no interest in the suit, and that no decree could be made against him. And this rule was recognized in the English courts, prior to their recent statute upon the same subject-7 & 8 Vict. c. 85. 2 Daniel’s Chan. Prac. 1043.

In the present case, the defendant offered as a witness, was a party materially interested in the suit, and liable to be affected by the decree, should the plaintiff succeed in obtaining one in his favour. It is true, he was not one of the heirs of Eleazer Bowen; but under the deed to the plaintiff and Anthony Bowen, he was entitled to the payment of a certain sum of money. In what manner that payment should be made, whether, in part extinguishment of a debt which he owed, or in some other manner, was a question involved in the case, and in which he had an interest. Under the rule, therefore, excluding parties on the record, who are interested in the result, he was an incompetent witness.

But it is said, he was called to testify to facts and matters no way affecting him, but for the benefit of his co-defendant.

What these facts and matters were, it does not appear that the committee was informed. As a general rule, a party upon the record is not a competent witness; and before he can be admitted, it is incumbent upon the party offering him, to show that he is disinterested.

In what manner the witness could testify so as to benefit his co-defendant, without, at the same time, promoting his own interest, does not appear from the case ; and we think, that that ought to have been shown to the committee, before he could be admitted, even if he were then admissible.

As the case is presented, we cannot say, that the committee erred in rejecting the witness; or that a new trial should be granted.

2. The next enquiry is, whether, upon the facts reported by the committee, the plaintiff is entitled to the relief he seeks. And this precise question seems to have been settled by this court, in Walker & al. v. Wheeler & al., 2 Conn. R. 299. There, the testator, by his will, devised certain real estate to his two sons, they paying to his two daughters the sum of three hundred dollars each, within one year after his decease. The sons failed to pay the daughters within the specified time, but six weeks afterwards tendered the amount, with interest, the receipt of which by one, was refused. That daughter and her husband afterwards brought their action to recover possession of their share of the real estate so devised. One of the sons and the heirs of the other son, who had died, then brought their bill in chancery against the two daughters of the testator, to regain the title which had been forfeited, by the non-performance of the condition; and this court granted the relief, and held, that “ where a condition has not been performed by the time, and compensation can be made, a court of equity will interfere and grant relief.”

That case so clearly resembles the present, in all its essential features, that we deem it unnecessary to examine the subject further.

The committee has found, that shortly after the expiration of the time limited in the deed for the payment of the money required to be paid to Amasa Bowen, the amount of the principal and interest of that sum, was tendered to him. This gives the plaintiff a right to the relief he seeks.

With respect to the several suits against Amasa Bowen, we do not see that they give the plaintiff any right to retain the money tendered ; nor do we see any sufficient grounds for decreeing a set-off of one debt against the other. The debts are distinct and independent ; and it is not even averred, that Amasa Bowen is insolvent. No ground therefore exists for decreeing a set-off.

We therefore advise the superior court to accept the report of the committee, and grant the prayer of the plaintiff’s bill.

In this opinion the other Judges concurred.

Decree for plaintiff.


author: J. This

text:
    Weeks against The Connecticut and Rhode-Island Turnpike Company.
    In an action against a turnpike company, to recover damages for an injury sustained by the plaintiff, who, as he was travelling on the defendants’ road, in a dark night, got out of the path, and wandered a short distance until he fell down a precipice; it appeared, that the defendants had erected no railing on the sides of the road at that place, but there was a pile of boards and lumber on an adjoining lumber-yard, which, the defendants claimed, constituted an equivalent barrier, and, that the plaintiff’s injury was caused by his own intoxication; the case turned on the question which of the parties was the faulty one; the court submitted to the jury, as matters of fact, the condition of the road, the need of a railing at that place, the sufficiency of the obstruction existing there, and whether the intoxication of the plaintiff, or the neglect of the defendants, was the cause of the injury; and the jury returned a verdict for the defendants it was held, that the case was properly put to the jury, and that their finding disproved the plaintiff’s declaration, and exculpated the defendants.

      Windham,

    July, 1849.
    This was an action on the statute relating to highways and bridges, alleging, that on the 1st day of April, 1847, a portion of the defendants’ road, in Eastford, West of and adjoining to a certain bridge, being so raised above the adjoining ground as to endanger the safety of travellers, was not in good and sufficient repair, for want of a good and sufficient railing; and that, by reason of the wrongful neglect of the defendants to erect and keep up thereon a good and sufficient railing, the plaintiff was thrown off the side of the road, and precipitated upon a bed of sharp and dangerous rocks, at the bottom of a stream of water, a distance of about twenty feet; by which he was greatly lacerated, bruised and wounded.
    The cause was tried, on the general issue, at Brooklyn.

    On the trial, the plaintiff claimed to have proved the facts alleged in his declaration. This the defendants denied, and claimed to have proved, that although they were bound to make and keep their road safe for public use, at the place mentioned in the declaration ; yet they were not liable for this injury ; because, first, the land adjoining the road, at that place, was not lower than the road, and the road was not unsafe, nor were travellers endangered, by reason of there being no railing.
    It was admitted, that there was a wall, of about twelve feet depth, East of a lumber-yard adjoining the road ; which yard and wall were not the property of the defendants.
    The necessity and propriety of a railing on the road, at this place, the court left to the jury; and instructed them, that if they should find the facts as claimed by the defendants, they were not in fault, and not liable; but if as claimed by the plaintiff, they were liable-there being nothing more in the case.
    Secondly, the defendants claimed, that there was on said lumber-yard, between the line of the road and said wall, a barrier, consisting of piles of boards and timber, obstructing the passage of animals beyond it, which was more effectual than any necessary railing on the road would be. It was not claimed by the defendants, that this obstruction was placed or kept on the yard, by them; but it was admitted, that it was placed there, and shifted, from time to time, by the owners, at their pleasure.
    The plaintiff claimed, that because this obstruction was not placed and kept on the land, by the defendants, how much soever it protected persons from the wall, it constituted no defence for the defendants ; nor could the defendants use the evidence relating thereto, as showing the condition and conduct of the plaintiff.
    The court charged the jury in conformity to the claim of the defendants, provided they should fine the facts as claimed by them ; but if otherwise, then, on this point, their verdict should be for the plaintiff.
    Thirdly, the defendants claimed to have proved, that in addition to the extreme darkness of the night, (which was admitted,) the plaintiff was intoxicated, and by reason thereof, could not walk well, nor take suitable care of himself; and that his intoxication, and not the want of a railing, was the true cause of the injury.
    The court charged the jury, that if the facts were, on this point, as claimed by the defendants, the plaintiff could not recover; but if otherwise, the verdict should be for him.
    The jury returned a verdict for the defendants ; and the plaintiff moved for a new trial, for a misdirection.

      Welch and Cleveland, in support of the motion,
    contended, 1. That the charge on the first point, was erroneous. The statute is imperative: “shall erect and maintain,” &c. Stat. 338. §6. (ed. 1838.) The doctrine claimed by the defendants, is not only at war with the positive provisions of the statute, but is unsafe in practice, and inconsistent with the rights of the public.
    2. That as the statute requires the owners of the road to erect and maintain a good and sufficient railing or fence on the sides of the road, the want of such railing or fence cannot be supplied, by something different, off the road and on another person’s land, which that person may shift, or entirely remove, at his pleasure-although the jury may think, that the obstruction, while it remains, is equivalent to a railing or fence on the sides of the road. Such a substitute-satisfies neither the words nor the design of the statute. The traveller knows what a railing or fence on the sides of the road, is put there for, and is led to take heed to his ways accordingly: but a pile of boards and lumber somewhere else, excites no suspicion of danger, but rather lulls him into security, until he gets over or round it, and falls headlong.
    3. That the plaintiff was entitled to a new trial, on the ground that the matter of the plaintiff’s drunkenness and his inability to walk well, was not properly put to the jury. Under the charge of the court, the jury could, very properly, return a verdict for the defendants, and must have done so, even if the plaintiff, at the time, had been perfectly sober. As the case stands, it does not appear that the jury have found that he was intoxicated ; nor that they did not found their verdict on the first point in the charge.

      Backus and Catlin, contra,
    contended, 1. That the defendants were not required by law to erect any railing at the place where the plaintiff sustained the injury complained of. The question whether there was any necessity of a railing, at that place, depended upon the circumstances of the case, as shown by the evidence; and of the tendency and weight of that evidence the jury were the appropriate and final judges. The court could not, as matter of law, determine whether or not any such necessity existed. The question of fact was properly left to the jury ; and they have decided it against the plaintiff, leaving him no ground of action.
    2. That the court properly charged the jury, that if the injury complained of by the plaintiff, was received by him, not in consequence of the want of a railing, but solely by the fault of the plaintiff himself, he could not recover. To make out his case, the plaintiff must show, not only, that a railing was required at that place ; that there was no sufficient railing there; and that, in concurrence with such neglect, he sustained an injury; but he must go further, and show, that he used ordinary skill and diligence to avoid the injury. Adams v. Carlisle, 21 Pick. 146. Lane v. Crom-bie, 12 Pick. 177. Smith v. Smith, 2 Pick. 64. Flower v. Adams, 2 Taun. 314. Butterfield v. Forrester, 11 East 60. v. Housatonuc Rail road Company, 19 Conn. R. 566. July, v. Rosebeck, 15 Conn. R. 359. Ang. Com. Car. Weeks 556. 557. 564. 565. As to the intoxication of the plain- Connecticut tiff, as conducing to show negligence on his part, see particu- Rhode-Island the section last referred to. If the plaintiff voluntarily placed himself in a condition which rendered him unable to walk well, and take proper care of himself, and this occa- sioned the injury complained of, the authorities above cited show, that he cannot sustain this action. 3.
    That if the pile of boards and lumber in the adjoining lumber-yard, was equivalent to a railing for the protection of the public travel, as the jury, under the direction of the court, have found it to be, it is a substantial compliance with the statute ; and it is immaterial who placed the barrier there ; and if it was there at the time of the injury, it is equally immaterial who had the right to take it away. 4.
    That as the injury happened to the plaintiff, after he had got safely off the defendants’ road, they were no longer responsible. He was not a traveller on their road. Tisdale & ux. v. Norton, 8 Metc, 388. Ellsworth,
   J. This

is an action against the defendants for not keeping a portion of their road in good and sufficient repair, and especially, not having a suitable railing, to prevent injury to travellers ; by means of which neglect, the plaintiff, as he says, got out of the path, and wandered a short dis- tance, until he fell down a precipice, into a river. The case turned entirely upon the question, who was the faulty party. The defendants claim, that the plaintiff, by reason of intoxi- cation, was himself the sole cause of the injury. The condi- tion of the road, the need of a railing, the sufficiency of what was there, and whether the neglect of the defendants or the intoxication of the plaintiff, was the cause of the injury suf- fered, were all matters of fact, properly submitted to the jury, under correct instructions from the court, so far as we can apprehend. In

In considering the necessity of a railing, the jury might consider, whether there was need of any, under the circum- stances ; whether there was, or was not, one substantially by nature, as trees or rocks, or one artificially, as buildings, timber, lumber or the like. If the jury have found, that that there was enough on the side of the road to secure people who exercise ordinary care and diligence ; or that the injury complained of is attributable to the misconduct of the plaintiff; this is enough to disprove the plaintiff’s declaration, and to show that he ought not to recover. The motion shows that the case was of a character entirely to exculpate the defendants.

We do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.


text:
    Billings against The Tolland County Mutual Fire Insurance Company.
    Where in a policy of insurance on sundry buildings, they were described as barns, to which this clause was added-"all the above described barns are used for hay, straw, grain unthreshed, stabling and shelter;” and on the trial, after proof of a loss by fire, it appeared, that on the day preceding the night of the fire, the insured had caused about two bushels of lime and six or eight pails of water to be placed in a tub standing in a room generally used for keeping therein unthreshed corn, in one of the barns, for the purpose of preparing the lime for rolling in it some wheat, which he was about to sow upon his farm ; that a short time previous to the fire, he had commenced the painting of his house, and his painter had mixed his paints in the same room, and at the time of the fire, there were in it an oil barrel, containing about a gallon of oil, a keg of white lead and a pot with about a pint of mixed paint; that in another building, described in the policy as used in part for a cider-mill, the insured, before and after the execution of the policy, had been in the habit of repairing his farming utensils, and had also made in it a bee-hive, and planed some boards for a room in his house ; but a day or two before the fire, the building had been cleared out, leaving nothing in it but some apples : held, 1. that the clause relating to the use of the buildings insured, was not a warranty that they should be used in that manner, and in no other, but was inserted merely for the purpose of designating the buildings insured, and not to limit their use, or to deprive the insured of the enjoyment of his property in the same manner as buildings of that description are generally used and enjoyed ; 2. that the acts of the insured, so far as they were, or could have been, the cause of the loss, were in accordance with the ordinary use of such buildings by farmers.
    Tolland,
    July, 1849.
    Therefore, where the court, on the trial of the cause, instructed the jury, that if the buildings insured were, in the ordinary acceptation of fhe terms, of the description stated in the policy, and continued such to the time of the fire, and were only put to the ordinary use of such buildings, the policy remained in force; but that the insured had no right to change the nature and use of the buildings, and if he did, he would lose the benefit of the policy-that a single act or so, which did not belong to the ordinary and appropriate use of the buildings, would not change their nature and character, and would not vacate the policy, or prevent a recovery thereon, unless such acts were fraudulent, or grossly careless, and if grossly careless, were the cause of the loss-and the jury found for the plaintiff; it was held, that the defendants were not entitled to a new trial for a misdirection.
    This was an action on a policy of insurance against fire, upon the plaintiff’s dwelling-house, several barns and other buildings.
    The cause was tried before the superior court in the county of Tolland, at the October term, 1848. In the policy, one of the barns was described as a building “ used for a barn, cider-mill,” &c. and after a more particular description of the buildings, the following clause was added : “ All the above described barns are used for hay, straw, grain unthreshed, stabling and shelter, including the one used in part as a barn, and in part as a cider and threshing mill.”
    Upon trial of the cause before the jury, it was proved, that on the day preceding the night of the fire, when the barns were burnt, the plaintiff had caused about two bushels of lime, and six or eight pails of water, to be placed in a half-hogshead tub, standing in a room generally used for keeping therein unthreshed corn, in one of the barns, called the North barn, for the purpose of preparing the lime for rolling in it some wheat, which he was about to sow upon his farm. A short time previous to the fire, he had commenced painting his house, and his painter had mixed his paints in the same room ; and at the time of the fire, there were in it an oil barrel, containing about a gallon of oil, a keg of white lead, and a pot with about a pint of mixed paint.
    With respect to another building, called the South barn, and described in the policy, as used in part for a cider-mill, it was proved, that before and subsequent to the execution of the policy, the plaintiff had been in the habit of repairing in it his farming utensils, such as sleds and ox-yokes ; that on one occasion, after the execution of the pd~icy, he had made in it a bee-hive, and some doors for the cellar of his dwelling-house ; and had also caused some boards to be planed in it, for a floor to one room of his house. But a day or two hefhre the fire, the building had been cleared out, and nothing was left in it, except some apples. In other respects, the buildings had been used in the manner specified in the policy.
    Upon these facts the defendants claimed, that the warranties in the policy were broken ; and that the policy, at the time of the fire, had become inoperative ; and requested the court so to charge the jury.
    But the court instructed them, that the North barn was insured as a barn, and the South one as a barn and cider-mill; and that if they respectively continued such, to the time of the fire, and were only put to the common and ordinary use of such buildings, the policy remained in force ; that the words, “barn” and “cider-mill,” were to be taken in their ordinary acceptation, and as such the plaintiff had a right to use the buildings, but had no right to change their nature and use ; and if he did, he would lose the benefit of the policy : that a single act or so, which did not belong to the ordinary, common and appropriate use of the buildings, would not change their nature and character, and would not vacate the policy or prevent a recovery, unless such acts were fraudulent, or grossly careless, and if grossly careless, were the cause of the loss.
    The jury returned their verdict in favour of the plaintiff; and the defendants filed a motion for a new trial, which was reserved for the advice of this court.
    The case was argued, at the meeting of the judges in Hartford, in November, 1849, by Brockway and Waldo, in support of the motion, and by T. C. Perkins and L. F. Robinson, contra.
    The counsel for the defendants contended, 1. That the construction of the contract embraced by the policy in question, was to be governed by the rules of law applicable to other contracts. We are to ascertain the intention of the parties from the language they have used, in the light of the concomitant circumstances. Cross v. Sutlife, 2 Bay, 220. 223.
    2. That the words in this pohcy, " All the above barns are used for grain unthrashed, hay, stabling and shelter, including the one used in part as a barn and in part as a cider and threshing mill"-are a warranty that these buildings should be used in this manner, and, for the purposes of insurance, in this manner only. Wood v. The Hartford Fire Insurance Company, 13 Conn. R. 583. 554. Jennings v. The Chenango County Mutual Insurance Company, 2 Denio. 75. These words, used by the plaintiff in his proposal, and incorporated into the policy, relate to the risk. The charge recognizes this position so far as the identity of the buildings is concerned, but is silent as to their use.
    3. That these words being a warranty that the buildings should be used in a particular manner, any other use would preclude the plaintiff from a recovery on the policy. See the cases above cited. French v. The Chenango Mutual insurance Company, 7 Bill, 122. Lounsbury v. The Protection Insurance Company, 8 Conn. R. 459. and Duncan v. The Sun Fire Insurance Company, 6 Wend. 488. were also referred to and commented upon. Even negligence in the insured will discharge the underwriters. Cleveland v. The Union Insurance Company, 8 Mass. R. 308. 325. Law v. Hollingsworth, 7 Term R. 160. Rich v. Parker, Id. 705. So also will a voluntary departure from the usual course of the voyage. 3 Kent's Com. 250. Or any unnecessary delay during the voyage, whether at sea or in port. Coffin v. The Newburyport Marine Insurance Company, 9 Mass. R. 436.
    4. That as the contract of the parties relates to an insurance upon buildings used in a particular way, the jury should have been instructed, that if the loss occurred in consequence of any other use, their verdict must be for the defendants.
    On the other side, it was remarked in limine, that in this case there were peculiar reasons for a fair and liberal construction of the contract, the parties being members of the same corporation, designed for the mutual benefit of all. The policy issued, and the application and proposals on which it is based, are in the form prescribed by the company. A loss having occurred, the company refuse payment, not on the ground of fraud, or gross negligence, or increase of hazard, or that the actual loss is less than the sum insured, or on any other ground of equitable defence; but on the ground of a technical breach of warranty. The operation of such a breach of warranty, even as applied to marine policies, is harsh, and often defeats the intention of the parties. The court will not be disposed to extend it. 1 Phil. Ins. 351. 353. Wood v. Hartford Ins. Co. 533. 544. Houghton & al. v. Manufacturers’ Mutual Fire Ins. Co., 8 Metc. 114. 120. The counsel for the plaintiff then contended, 1. That in this case, there was no warranty; the term, “barn,” with its adjuncts, being used only to identify the subject of insurance, without implying any covenant as to the manner in which it should be occupied. Catlin v. Springfield Fire Ins. Co., 1 Sumn. 434. 440, 1. Dobson v. Sotheby & al. 1 Moo. & Mal. 90. (22 E. C. L. 260.) Rafferty v. New-Brunswick Fire Ins. Co., 3 Har. R. (N. J.) 480. Delonguemare v. Tradesmen’s Ins, Co., 2 Hall, 589.
    2. That if the expressions used in this policy do constitute a warranty, that the buildings were, at the time of the policy, a barn and cider-mill, and should so continue to the time of the fire, there has been no breach of this warranty. For, in the first place, such they were and such they continued to be. Secondly, they were used for their appropriate purposes; and if there was any additional use, it was only occasional, and not customary or permanent. Hazard v. New-England Marine Ins. Co. 1 Sumn. 218. 222. Lounsbury v. Protection Ins. Co. 8 Conn. R. 459. Fowler & al. v. JEtna Fire Ins. Co. of New-York, 7 Wend. 270. Shaw v. Robberds & al. 6 Ad. Ell. 75. (33 E. C. L. 12.) Pim & al. v. Reid & al. 6 Man. & Gran. 1. (46 E. C. L. 1.)
    3. That the technical rules of warranty can have no application to this contract; for in the 25th section of the charter certain specified risks are excluded; and where there are no words of exclusion, it is a fair inference that others are covered. 2 Sup. U. S. Dig. 203. pl. 25.
   Waite, J.

Two exceptions have been taken to the charge given to the jury in the court below.

The first is, that the words in the policy, “ all the above barns are used for hay, straw, grain unthreshed, stabling and shelter”-are a warranty that the buildings should be used in that manner, and in no other.

But we do not so understand the language of that instrument. The clause was inserted merely for the purpose of giving a description of the buildings insured, and not to limit their use or to deprive the plaintiff of the enjoyment of his property in the same manner as buildings of that description are generally used and enjoyed. Had they been described as painted white, no one would contend that such a description would make it necessary for the insured always to keep them of that colour, or that the obligation of the insured would be at an end as soon as the paint had become worn off and gone .And the reason is obvious. Such a description would be construed merely as such, and not as a warranty that the buildings should always be kept painted.

It was indeed competent for the defendants, in the policy, to limit their liability, and prescribe in what manner the buildings, during the continuance of the policy, should be used. And the plaintiff, by the acceptance of the defendants’ obligation, upon such terms, would be bound by them.

To some extent, this has been done, in the present case. It was provided, that “ no ashes should be kept in any part of the buildings.” The keeping of ashes, contrary to that provision, would destroy the obligation of the contract. But this provision differs materially from the former. One is a prohibition-the other, a description, or at most, a warranty that the buildings, at the time they were insured, were such as they were described to be in the policy.

2. In the next place, it is claimed, by the defendants, that as the insurance was upon buildings used in a particular way, the jury should have been instructed, that if the loss were occasioned by any other use, the plaintiff could not recover. The court informed the jury, that a single act or so, in the use of the buildings, which did not belong to the common, ordinary, and appropriate use, would not defeat the policy and prevent a recovery, unless such acts were fraudulent, or grossly careless, and if grossly careless, were also the cause of the loss. The defendants insist, that this instruction was wrong; that the plaintiff cannot recover, if the fire was occasioned by acts done by the plaintiff, not in the common and ordinary use of the buildings.

The authorities which have been cited, if well founded, go far to sustain the charge of the court in this particular. Thus, where a barn insured against fire, required tarring, and a fire was lighted inside of the building, and a tar barrel brought in, for the purpose of performing the necessary operation ; in the absence and by the negligence of the plaintiff's servant, the tar boiled over and took fire, which was communicated to the building, and the barn was burnt ; yet it was holden, that the insured was entitled to recover. Dobson v. Sotheby, 1 Moo. & Mal. 90. (22 E. C. L. 260.) So where there was an insurance upon a kiln for drying corn, and the insured permitted some bark to be dried in it, in consequence of which, the building was burned ; the court held, that as there was no clause in the policy amounting to an express warranty that nothing but corn should be dried in the kiln, the insurers were liable. Shaw v. Rob-erds, 6 Ad. & Ell. 75. (33 E. C. L. 12.)

The defendants however say, that these decisions have gone too far, and cannot be vindicated. We do not consider ourselves necessarily called upon to examine the principles upon which those decisions are founded, for the purpose of testing their correctness, because, for another reason, we think the defendants are not entitled to a new trial.

The acts done by the plaintiff are set forth in the motion, so that we can see what they were, and whether they were a departure from the common and ordinary use of such buildings. We very well know, that farmers in the state are in the habit of using their barns for a variety of purposes, connected with their agricultural business, besides that of storing their hay and stabling their cattle. Their barns are frequently used as a shelter for their wagons, plows, sleds, and other farming implements. When the plaintiff caused the insurance to be effected on the buildings upon his farm, it is not to be presumed that he meant to deprive himself of their common and ordinary use ; or that the defendants, by their policy, intended any such thing. And, excepting so far as there is an express prohibition in relation to the use of them, as in the keeping of ashes, the understanding of the parties unquestionably was, that the common and ordinary use of them was to be continued in the same manner as if the policy had never been executed.

The acts done, in what is called the South or cider-mill barn, may be laid out o1 consideration ; for the motion states, that they were all performed and the building cleared out, previous to the fire, and nothing left in it, except some apples. These acts could not therefore have produced the fire.

And then with respect to the other barn, the plaintiff prepared and left in it the steep for his seed wheat, and stored in it the paints which he was using for painting his house. We discover nothing in these acts more than what is usual and common among farmers. They are very different from the act of storing lime and paints for merchants, or for purposes wholly unconnected with the business of the farm.

If therefore the charge of the court, in this particular, although sustained by high authorities, is unsupported by principles, (and upon this part of the case we express no opinion,) we do not see that the defendants, upon their own shewing, have sustained any injury ; and consequently, are not entitled to a new trial.

The other Judges were of the same opinion.

New trial not to be granted.