author: Storrs, J.

text:
    Arnold vs. Norton.
    There is no rule which requires, any particular number of instances of unprovoked biting, to prove a mischievous disposition in a dog, to bite mankind.
    In an action on the case for an injury to the plaintiff’s minor son, occasioned by being bitten by the defendant’s dog, the judge instructed the jury that in similar cases, full and satisfactory proof of a single instance of biting mankind by a dog, previously to the act complained of, and of the defendans’t knowledge of said act, had been held sufficient to warrant a jury in finding a verdict for the plaintiff; and added, that the force of such testimony would depend much upon the attending circumstances. Held, that as a guide to the jury in weighing the evidence before them, such instruction was unexceptionable, and sustained by the authorities.
    The plaintiff, on the trial of such action, having testified that shortly before the injury he had agreed to give his son fifty cents for every day he would labor for the plaintiff, but without intending to give his son his time, and merely as an incentive to industry, and that his son, having labored several days under the agreement prior to the injury, was prevented-by it from further labor until the expiration of several months, the defendant requested th“ court to instruct the jury that these facts amounted in law to a «elinquishment of the son’s services. The court refused to comply with this request, but affirmed the principle, that the plaintiff could make such relinquishment; and if he had done so, he could recover no damages for the loss of services during the period; and submitted to them the question of such relin. quishment as one of fact. Held, that the course taken by the court was correct. Held also, that for the purpose of showing the amount of expense and trouble to which he was subjected in taking care of his son, the plaintiff might prove the extent of the injury occasioned by the bite of the dog, and of the corporal suffering and pain of his son.
    Isaac Arnold, the plaintiff, brought his action of trespass on the case against Norton, the defendant, before the superior court for the counties of Middlesex and Tolland; alleging that the defendant kept a certain dog which he knew was accustomed to bite mankind, and that on the 21st day of May, 1853, the dog attacked and bit Isaac Arnold, Jr., the minor son and servant of the plaintiff, by means whereof his said son became lame, &c.
    The general issue was pleaded and the cause was tried at the term of said court holden in November, 1855.
    The plaintiff claimed upon the trial that the defendant’s dog was unrestrained and at large when he committed the injury complained of, and was accustomed to bite mankind, and that the defendant knew that his dog was so accustomed to bite ; and for the purpose of proving the habit of the dog, the plaintiff offered witnesses, who testified that said dog had, before the act complained of in the plaintiff’s declaration, bitten other persons. The defendant offered several witnesses who testified that they frequently saw the dog, that he was of a peaceable, quiet disposition, and not addicted to biting mankind.

      The defendant further claimed, and asked the court to instruct the jury, that in order to render the defendant liable in the present action, it was necessary for the plaintiff to prove that the dog had a habit of biting mankind, and that his habit of doing so was known to the defendant. The court instructed the jury that to enable the plaintiff to recover, he must prove that the dog was accustomed to bite mankind, and that it must also be proved that the defendant had knowledge that he was so accustomed to bite; that if a single instance of biting mankind previous to the act complained of in the declaration, was fully and satisfactorily proved to the jury, and a knowledge of such act on the part of the defendant was proved in like manner, that had been held sufficient to warrant a jury in finding a verdict for the plaintiff in eases of this kind, but that the force of such testimony would depend much upon the circumstances attending the transaction, as whether they indicated a disposition to bite without provocation, or the contrary.
    The plaintiff claimed to recover for the loss of the services for several months of his minor son, occasioned by the bite complained of. The plaintiff on the trial testified that shortly previous to the injury, he had agreed to give his son fifty cents a day for every day during the season that he would labor for the plaintiff at a quarry belonging to the plaintiff and others, and that prior to the injury his son had performed several days’ labor at the quarry under the agreement, but was prevented, by the injury, from further labor until after the expiration of several months; that he offered his son this money without any expectation of giving him his time, but merely as an incentive to his industry. The defendant requested the court to charge the jury, that these facts amounted in law to a relinquishment by the plaintiff of his right to his son’s services during the season. The court did not so instruct the jury, but did charge them that a father could, by law, relinquish his right to the services of his minor son, and if the jury were satisfied that any such contract of relinquishment was proved, then they could give the plaintiff no damage for the loss of services during the period of such relinquishment, but that the facts proved did not, in the opinion of the court, necessarily amount to such relinquishment. And further, that the plaintiff was by law entitled to the service of his minor son, and if the promise to pay wages was founded upon no other consideration than an agreement by the son to do that, which by law he was bound to do without such agreement, then the promise of wages would seem to the court to bé without any sufficient consideration to support it.
    In the progress of the trial, the plaintiff offered his minor son as a witness to prove the extent of the injury suffered by the bite of the dog, and also to prove his corporal suffering and pain,to which the defendant objected; but the court admitted the testimony for the purpose of showing the expense and trouble of the plaintiff in nursing and taking care of his son, and directed the jury to consider the evidence only for that purpose.
    The jury returned a verdict for the plaintiff, and the defendant moved for a new trial.

      Chapman and Tyler, in support of the motion.

      Clark and W D. Shipman, against the motion.
   Storrs, J.

1. No objection is made to any part of the charge below upon the questions of fact on which depended the liability of the defendant for the acts of bis dog, except to that in which the judge informed the jury that in cases of this kind, full and satisfactory proof of a single instance of' biting mankind by a dog, previous to the act complained of, and of a knowledge of such act on the part of the defendant, had been held sufficient to warrant a jury in finding a verdict for the plaintiff. The judge added, that the force of such testimony would depend much upon the circumstances attending the transaction, as whether it indicated a disposition to bite without provocation, or the contrary. As a guide to the jury in applying and weighing the evidence before them, this part of the charge was unexceptionable, and adapted to the case, and is fully sustained by the authorities* There is no rule which requires any particular number of instances of unprovoked biting, in order to prove past mischievous disposition. 2 Esp., 602. Jenkins v. Turner, 1 Ld. Raym., 118. 2 Stra., 1264. Smith v. Black, 1 Sw. Dig., 551. Jones v. Perry, 2 Esp., 482.

2. The defendant excepts to that part of the charge which related to the relinquishment by the plaintiff of his son’s services. The judge below expressly affirmed the principle asserted in the defendant’s claim, that the plaintiff could by law relinquish his right to the services of his minor son for a particular time, and that if there was such a relinquishment, he could recover no damages for the loss of those services during that period. The correctness of this ruling need not be examined. It was favorable to the defendant, and he, therefore, cannot complain of it. But he requested the judge to charge the jury that the facts testified to by the plaintiff) amounted in law to such a relinquishment. This he omitted to do, and submitted to them the question of relinquishment as one of fact. Of this omission the defendant complains. In our opinion the course taken "was correct. As a question of fact, the defendant might very properly claim that, from this testimony, the truth of which or any part of which he was at liberty to deny, a relinquishment or transfer to the son, of the father’s right to his services, was fairly inferable ; but it is obvious that, taking all this testimony to be true, as we must on the question of law now made by the defendant) it proved the terms of the agreement between the plaintiff and his son to be such, that it not only did not import, that there was such a relinquishment or transfer, but that it expressly imported the contrary ; for the plaintiff testified that what he agreed to give to his son, was offered to him without any understanding that he was to give him his time, but merely as an incentive to his industry. This showed that it was not their intention that the son should receive it as one liberated from the control of his father, and having the disposal of his own time, and the benefit of his own services, or that he was to laboras one employed on wages, but rather as a mere gratuity, to encourage him to the formation of industrious and useful habits. By this agreement, the son was to labor in the employ, and on the behalf, and for the benefit of his father exclusively, and in this respect this case is distinguishable from those which have been referred to on this subject, where the father allowed his son to make a contract on his own behalf with other persons.

The son, in this case, moreover, was not engaged to labor for any particular time; it was optional with him for how many days he would work at the quarry, or, indeed, whether he would work there at all, and he was to receive the sum promised, only for the days he performed the service. On no principle, therefore, can it be claimed that the agreement constituted a relinquishment of his services for any longer period than while he continued to labor there.

3. The evidence to prove the extent of the injury suffered by the plaintiff’s son by the bite of the dog, and also his corporal suffering and pain, was plainly admissible, as it conduced to show the amount of the expense and trouble to which the plaintiff was subjected in nursing and taking care of him, and the plaintiff was entitled to that amount if he had a right to recover.

We do not advise a new trial.

In this opinion, Hinmán, J., concurred.

A new trial not to be granted.


source: Caselaw Access Project

license: Public Domain

text:
    The Pondville Company vs. Clark.
    The mere insolvency of a corporation neither impairs its power to manage its affairs, nor converts its property into a trust fund for the benefit of its creditors.
    The case of Catlin v. The Eagle Bank of New Haven, 6 Conn. R., 233, cited and approved.
    A creditor of an insolvent joint stock corporation is not, by reason of his being a stockholder in and indebted to such corporation by his promissory note given in payment of his subscription for his stock, deprived of any right to recover his claim, which other creditors of said corporation have.
    Therefore, in an action by a corporation upon such note, it was held, that the defendant being such stockholder and creditor, might set-off against the plaintiffs’ demand a claim for lumber sold by him to the corporation.

      This was an action upon a promissory note, brought by the Pondville company, a joint stock corporation duly organized under the statute laws of this state, against Sylvester W. Clark. Said note was dated November 3d, 1853, and was for the sum of ninety-seven dollars and twenty-three cents, payable on demand with interest.
    The defendant pleaded the general issue, with notice of special matter to be given in evidence. The cause was tried at the term of the superior court for the county of Middlesex, holden in November, 1855, when the following facts were found by the court.
    The plaintiffs proved that the note in question was given as part of the defendant’s subscription to the capital stock of the company. The defendant proved that at the time he subscribed for the stock, it was understood by him that he should be permitted to pay his subscription in lumber, and that in pursuance of this understanding, he, as one of the firm of Glad-win & Clark, delivered to the plaintiffs certain lumber, which was used in constructing the building in which the plaintiffs were to carry on their business, but no binding agreement was proved that the subscription should be payable in lumber. The defendant proved the delivery of the lumber, and that the plaintiffs were justly indebted to Gladwin & Clark therefor. And that the account had become the sole property of the defendant, being set apart to the defendant at its full value, in a division of the partnership effects ; of all which the plaintiffs had notice before the present suit was brought. Said company, at the time of giving the note, was insolvent, and had then ceased to do any business except such as was connected with winding up its concerns, and never had resumed its business, but continued insolvent. The plaintiffs thereupon claimed that the defendant could not by law set-off the account for lumber against a note given for subscription for stock. It was not claimed that the company had gone into bankruptcy, or that its effects were in the hands of trustees. Upon these facts the question, whether the defendant was entitled to make the set-off claimed by him, was reserved for the advice of this court.

      W. _D. Shipman and Vinal, for the plaintiffs.
    The set-off insisted on by the defendant should not be allowed, because,
    1. The claims of the plaintiffs and defendant are not mutual debts, by a fair construction of that term. They are not due in the “ same right .” Palmer v. Green, 6 Conn. R., 14. Hutchins v. State Bank, 12 Met., 421. Whittington v. Farmers Bank, 5 Har. & J., 489. Union Bank v. State of Tennessee, 9 Ver., 490.
    2. To allow the defendant, who is a stockholder, to set-off his debt, in this case, is, in effect, allowing him to withdraw so much of the capital stock, and to apply it to the payment of his own claim. This would be a fraud on the other creditors, and would be a violation of the spirit of the 214th section of the act relating to joint stock companies. Rev. Stat., 230.
    3. This note is a part of the capital stock of the corporation, which constitutes the trust fund, for the payment of its debts. Wood v. Dummer, 3. Mas., 308. Ward v. Griswoldville Manuf. Co., 16 Conn. R., 593.
    The capital stock being a trust fund upon which the creditors of the corporation have relied, the directors, especially after the corporation has become insolvent, should be deemed trustees for the benefit of the creditors generally.
    As such trustees, they are bound to collect the.subscriptions to the capital stock remaining unpaid, and they have no right to take less than the amount of each man’s subscription. Goodwin v. McGehee, 15 Ala., 232. Ward v. Griswoldville Manuf. Co., 16 Conn. R., 593. Eastern Bank v. Capron, 22 Conn. R., 639. Nathan v. Whitlock, 3 Edw. Ch., 205. Mann v. Cook, 20 Conn. R., 178.
    4. If this set-off is allowed, the defendant will be permitted to pay a portion of his subscription in a depreciated debt, purchased by him of a third party. This would open the door for numberless frauds. Goodwin v. McGehee, 15 Ala., 232,

      Ingham and Culver for the defendant.
    1. The facts which appear in the finding, clearly bring the set-off' sought to be made, within the express provisions of the statute. Rev. Stat., 81.
    2. There is a strong equity in favor of allowing the set-off, arising from the facts in the case as found by the court.
    3. The fact that the plaintiffs were not able to pay their debts in full, when the suit was commenced and the note was given, is not a reason why the account for the lumber should not be set-off against the note.
    1st. Giving the note certainly could not change the nature of the debt, of which the note was only evidence, nor in any way vary the rights of the parties. 2. It not being claimed that the plaintiffs have gone into bankruptcy, or their effects into the hands of a trustee, they are the real plaintiffs and party in interest on the record. 3. If the plaintiffs should recover, non-constat that their creditors would be benefited thereby. But whether they would or not, no injustice will be done to them in allowing the set-off. They will stand on precisely the same ground as they would if the defendant had paid his subscription in gold, and with that gold the plaintiffs had purchased of him the identical lumber in question. The creditors have no right to claim that the defendant shall pay his subscription twice.
   Storrs, J.

If one or more natural persons were the plaintiffs in this case, there is no doubt that, under our statute of set-off, (Rev. Stat., 81,) the defendant would be entitled to the set-off which he claims. The mere insolvency of the plaintiffs, using that term in its ordinary sense, to denote generally an inability to pay their debts, would not prevent them from paying the debt due to the defendant, in prefer-ence to any other of their debts, or of applying it towards the payment of the plaintiffs’ claim, or of making any other arrangement for the liquidation of their indebtedness which they chose, in the same manner as if they were solvent; and it might equally be collected of them by a suit in favor of the defendant, or by a set-off in a suit brought by them against him, or it might be factorized by the defendant’s creditors. The occurrence of such insolvency would not take away, or at all impair, their previous power to manage their affairs, nor would it convert of itself, their property into a trust fund for the benefit of their creditors. These principles are so familiar that it would be unnecessary to state them, were it not .proper for the purpose of showing their applicability to a suit like the present, which is brought to recover a debt due to an insolvent corporation, between which and natural persons, it has been claimed that, in the respects which have been mentioned, there is a difference, in the event of insolvency. That these principles are applicable to an insolvent corporation, as well as to an insolvent individual, and to as full an extent, is decisively settled in the case of Catlin v. The Eagle Bank of New Haven, (6 Conn. R., 233.) The particular question there presented was, whether a corporation, after it had become insolvent, could prefer one of its creditors to another, by paying or giving security to the former; and this depended on the question whether the mere insolvency of the corporation converted its estate into a trust fund for all its creditors. It was held that it did not, and therefore that such preference might be given ; and that the insolvency of the corporation no more impaired its power to manage its concerns and deal with its property, than if it had been a natural person. The reasons for the opinion of the court in that case, are given so fully, and are so satisfactory, that we need only to refer to them. From the doctrine there established it necessarily results, that the insolvency of the plaintiffs in this case, constitutes no objection to the claim of set-off made by the defendant, which is in the nature of a cross-action against the plaintiffs, and a mode provided by law by which a debtor, sued by his creditor, may, in that suit, recover an independent claim which he has against such creditor, by having it applied on the debt due from him, and to which, as well as to any other legal mode, the defendant has a right to resort for the recovery of his claim. All the estate of the plaintiffs, of whatever description, including the debt due from the defendant, was liable, as well after, as before they became insolvent, to be taken and appropriated for the payment of their debts, by any of their creditors who should take the requisite steps for that purpose; and the circumstance that the defendant was a stockholder, as well as creditor, of the plaintiffs’ corporation, deprived him of no right to recover his claim against it, to which any of its other creditors was entitled.

The plaintiffs claim that as the note, on which this suit is brought, was given for the defendant’s share of the stock of the corporation, it constituted a part of its capital, and by allowing the set-off claimed by the defendant, he is permitted to withdraw a part of such capital; and that this would be a fraud on the other creditors of the company, and a violation of the 214th section of the act relating to joint stock corporations, which provides that “ if the capital stock of any such corporation shall be withdrawn and refunded to the stockholders, before the payment of all the debts of the corporation for which such stock would have been liable, the stockholders of such corporation shall be liable to any such creditor of such corporation, in an action founded on [that] statute, to the amount of the sum refunded to them respectively as aforesaid.” (Rev. Stat., 230.) The answer to this claim is obvious. The defendant would withdraw no part of such capital as a stockholder, but would only appropriate according to law, as a creditor of the plaintiffs, in payment of his debt against them, a portion of that capital which was designed to be protected as a fund for the benefit of their creditors, and would only exercise the same right as any other creditor, whether a stockholder or not, would possess. And why should he as a creditor stand on worse ground, in recovering his debt, than any other creditor? And, so far from contravening that provision of the act referred to, such set-off would be in exact accordance with its design, as it was its very object, to have the capital first appropriated to the payment of the debts of the corporation ; and the defendant, moreover, instead of withdrawing or refunding to himself, as a stockholder, any part of the capital, diminishes his interest as such to the extent of the amount of his proportion of what he thus appropriates to himself as a creditor.

We therefore advise the superior court to allow the set-off claimed by the defendant, and to render judgment accordingly.

In this opinion, Hinman, J. concurred.

Set-off allowed, and judgment accordingly.


author: Hinman, J.

text:
    Burr vs. Norton.
    The statute which provides that whenever a jail shall be used as a county work-house, the keeper of the jail shall be the keeper of the work-house, (Rev. Stat. tit. 43, ch. 3, §59,) implies that the deputy jailer shall be the keeper of such work-house, and consequently under the control of 1he sheriff.
    The dismissal by the sheriff of a keeper of a jail so used, from the office of deputy jailer, is a dismissal from the office of keeper of the work-house.
    It was not the intention of the legislature, in further providing in said act, that the judge of the county court and the county commissioners, if they see cause therefor, may appoint an assistant master or keeper of such work-house, to authorize the taking from the sheriff of the supervision and control of such work-house, under color of appointing an assistant to his deputy.
    Where a county jail was used as a work-house, and the under-keeper of the jail, who was also the keeper of the work-house, was dismissed from his office by the sheriff, and the county commissioners afterward appointed him assistant keeper of the work-house; it was held, that by virtue of such appointment, he had no authority over the work-house in opposition to the sheriff.
    Whether since the office of judge of the county court has been abolished, the county commissioners can alone appoint an assistant keeper of a work-house : Qu?

    On the refusal of such under-keeper, when so dismissed by the sheriff, and subsequently appointed by the county commissioners, to deliver to the sheriff, exclusive possession of such jail, and of the books and papers belonging to the work-house, held, that a writ of mandamus would lie to compel him to render such possession.
    Where a part of such jail had been occupied as a dwelling by the jailer and his family, in connection with certain land belonging to the county and contiguous thereto ; it was held, that it was not necessary to resort to an action of disseisin to recover possession of such land, and the part of the jail so occupied

      This was a petition for a mcmdamus, preferred by Harris Burr against Joseph W. Norton, requiring the defendant to deliver to the plaintiff, who was sheriff of the county of Middlesex, the keys and papers belonging to the common jail of said county, situated at Haddam, and the control and custody of the prisoners therein confined, and to vacate and surrender .possession of the whole of said jail, including a part of the same, occupied by the defendant as a dwelling for himself and his family.
    The defendant appeared and showed cause against the issuing of the writ of mandamus; and at the term of the superior court, holden in February, 1856, the following facts were found, and the questions of law arising thereon, reserved for the advice of this court.
    The petitioner on the second day of June, 1854, appointed the respondent under-keeper of the common jail of the county, situated at Haddam ; which appointment was approved by the county commissioners for said county, on the 19th day of June, 1854. Norton thereupon, took the charge of said jail as its under-keeper, and had full possession of all the books and papers thereto belonging, and the keys thereof, until the 22d day of October, 1855.
    From said 2nd day of June, until the petition was brought, said jail was used as a county work-house, according to the provisions of the statute law of this state; and during all said time, Norton, as the keeper of said jail, was the master and keeper of said work-house, and had the charge of all persons committed to said work-house, and the possession of the books and papers thereto belonging; but Norton, before said 22d day of October, 1855, was never in any other manner appointed master or assistant master of said county work-house.
    Said jail is connected with, and part of, a building in which is a tenement used by the jailor as a dwelling for himself and his family. The principal portion of said building used as a prison, consists of a large room containing twenty cells in which prisoners are confined, situated in two tiers one above the other; one of the chambers in the part used as a dwelling, is used as a debtor’s room, and another chamber is used for the confinement of female prisoners. All these rooms and said cells are secured by locks that may be locked and unlocked by two keys, each being a duplicate of the other. The persons committed to the county work-house and confined in said prison, have been chiefly confined in the lower tier of said cells, and those committed to said jail have been chiefly confined in the upper tier of cells during the time the respondent was jailor as aforesaid. The large room above mentioned is the place where the work by the prisoners in the work-house is performed, and the room in which the prisoners in said jail are confined when not in their cells; neither tier of said cells, or any cell therein, can be approached except through said room. Said building may be used as a' jail and also as a county work-house, while each department is under the direction and control of different persons, but is not so constructed as to be used as conveniently, or safely, as it could if both departments were under the direction and control of the same persons. Since July 1st, 1854, there were a greater number of persons confined in the county workhouse than in the jail; during all said time, a number of persons were confined in each department of said prison. The county is the owner of certain land contiguous to said building, and which is used in connection therewith. On the 22d day of October, 1855, Burr dismissed Norton from the office of under keeper of said jail, and delivered to him a written discharge, a copy of which was, on the- 31st day of October, 1855, lodged with the clerk of the superior court for said county of Middlesex, to be recorded; on said 22d day of October, Burr requested Norton to give him the keys and papers belonging to said jail and work-house. Norton then delivered to Burr, one of said duplicate keys, and all the papers belonging to the jail, but declined to deliver the other duplicate key or any of the papers belonging to, or connected with said work-house; in a short time thereafter, on the same day, Burr returned said papers and said key, so by him received, to Norton, and requested him to keep the same until he should see him again, but on Norton’s request, Burr refused to take back said written discharge.
    On the 24th day of October, 1855, the county commissioners for the county of Middlesex, without any action of any judge or any court, appointed said Norton assistant master or keeper of the work-house in Haddam, until the 1st day of June, 1856, and also constituted him agent for said county, and authorized him as such agent, to conduct the suits pending for, and against said county, and for that purpose put into his possession the books and papers of said county. On the 30th day of said October, said county commissioners and Norton, entered into an agreement in writing, respecting the duties by him to be performed as such assistant master, and Norton after the 24th day of October, 1855, exercised the duties of assistant master of said work-house, under said appointment and agreement, and kept charge of the books and papers of said county and the prisoners in said work-house, and discharged all his duties to the satisfaction and approval of said county commissioners. On the 29th day of October, and on the 5th day of November, 1855, Burr demanded of Norton, all the keys and papers of said jail, and insisted that Norton should surrender the same together with the possession of said jail, and the custody of the same and the prisoners therein confined, to him. Norton, on both said occasions, offered to Burr one of said duplicate keys and the papers connected with the jail and the custody of the prisoners therein confined, but refused to surrender the other duplicate key, and the exclusive possession of said jail-, and claimed that he was entitled to hold the same, for the purpose of discharging his duties as assistant master of said work-house. On the 20th day of November, 1855, Burr demanded of Norton, the keys and papers of said jail, together with the possession of every part of said building and premises. Norton again offered to Burr, one of said duplicate keys, the papers belonging to said jail, and the custody of the prisoners therein confined, but refused to surrender the other duplicate key, the books and papers belonging to the workhouse, or so much of said prison, as was necessary for him to use as a county work-house, or for the custody of the persons confined in said work-house, the dwelling by him occupied, or any portion of the land connected therewith. Norton, in refusing to surrender said duplicate key, the books and papers belonging to the work-house, so much of said prison as was necessary for that purpose, the dwelling and land by him occupied, and belonging to said county, and in the other proceedings touching the same acted under the express orders and requirements of said county commissioners. On the 14th day of November, 1855, Burr, as sheriff, appointed one William Chapman, keeper of the jail in Haddam, and gave to the county commissioners, an appointment in writing of Chapman, for their approval; but Chapman, on being informed by said commissioners, that 'Norton was assistant master of said work-house, and as such, was entitled to have the use and occupation of the dwelling attached to said building, and the exclusive charge of said work-house, declined to receive said appointment; and Burr then withdrew the same from the consideration of said commissioners before they had come to any result thereon. Burr was, at all times, ready to take charge of said building as the keeper of said jail, and the master and keeper of said work-house in person, until he should be able to procure some suitable person for that purpose, whenever said premises should be vacated by the respondent, but he made no other provision for an under keeper of said jail than the appointment of Chapman.

      Ingham and W D. Shipman, for the plaintiff.
    1. In this state, the sheriff is the keeper of the jail, and as such, is entitled to the sole custody and control thereof. The statute has made him responsible for the escape of the prisoners, and with great propriety has given him authority over the building in which they are confined. Rev. Stat., 730, 731.
    2. The sheriff has power to appoint under keepers or deputy jailors, subject only to the approval of the county commissioners, to act for him, and for whose negligent, tortuous, and improper acts, he is liable. Their acts are his acts. Rev. Stat., 730, 731. Brown v. Huntington, 3 Conn. R., 423. Huntington v. Williams, 3 Conn. R., 427.
    3. As the sheriff is held responsible for the acts”of his under keeper, or deputy, the law has wisely given him the sole power of dismissing him at his pleasure. Rev. Stat., 793.
    4. In this case, the sheriff, having exercised that power by dismissing the respondent, the latter is no longer keeper of the jail, and should not be permitted to perform its duties.
    5. As the respondent was master or keeper of the workhouse, only by virtue of his office of under keeper of the jail, his dismissal by the sheriff from the latter office, was equally a dismissal from the former.
    6. The appointment of the respondent by the county commissioners, as assistant master of the work-house, was void, and conferred no authority upon him to act in that capacity; first, because, as there was no master of the work-house, there could be no assistant master; and secondly, as the power of the appointment was lodged in the judge of the county court and the county commissioners jointly, both must concur in the act of the appointment. Where the law vests a power of appointment in two distinct and independent agents, or tribunals, neither can legally or effectively exercise the power alone, but both must concur.
    7. The sheriff being liable for the escape of all the prisoners in all the different departments, is entitled to the possession of every part of the building, both for his own protection, and for the convenience and protection of the deputy jailor.
    8. The power given to the county commissioners over the county property, is not absolute, but is limited by and to be construed in connection with the rights and powers of the sheriff. The statute prescribing the forms and duties of the county commissioners, in regard to the county property, should be so interpreted as to be consistent with those of the sheriffs touching the prisoners.
    9. Here being a clearright and no ordinary mode of legal redress, the remedy by mandamus is appropriate and apt to the case. Tapping on Mandamus, 62, 64. People v. Corporation of Brooklyn, 1 Wend., 318. People v. Chenango justices, 1 Johns. Ch. Ca., 179. Taylor v. Henry, 2 Pick., 397. Sudbury v. Stearns, 21 Pick., 148. Walter v. Belding, 24 Verm., 58. St Luke's Church v. Slack, 7 Cush., 226. Clayton v. Carey, 4 Maryland, 26.

      Chapman and McCurdy, for the defendant.
    1. The building described as the jail, is devoted to two separate purposes, and under two sets of officers, entirely distinct from, and independent of each other.

      Everything connected with the use of it, as a jail proper, the respondent has always been ready and willing, and has offered to deliver to the sheriff. So far as, since the revocation of his appointment, he has acted as jailor, the duty has been forced upon him, by the sheriff, who is therefore estopped from complaining. With respect to the occupancy as a work-house, with the keys, papers, possession and control of the prisoners, pertaining to it as such, these he is under no obligation, and has no right to surrender to the sheriff. These uses can be had by each party at the same time. But so far as there is a conflict, the right of the work-house keepers must be paramount.
    2. The appointment of the respondent by the county commissioners alone is valid. That part of the law which required the concurrence of the county court was repealed by the abolition of that court. If the validity of the appointment were questionable, this is not the mode of trying the question. U. S. Dig., 1848, 269, No. 23. 5 Hill, 616. 3 John. Ca., 79. 5 Hill, 628. 2 T. R., 259.
    3. The dwelling-house and grounds, pertain especially to the work-house, and are under the control of the county commissioner; and the respondent holds under them. The county must provide for a jail, but needs not a house for the jailor. The mode of obtaining possession of real estate wrongfully withheld is either by action of ejectment or summary process, or under some circumstances an injunction, and not by mandamus.

    4. A writ of mandamus is not a matter of right, but of discretion, and will be issued only when the applicant has a clear legal title, which the respondent clearly violates, and when there is no adequate remedy. 1 Sw. Dig., 578. 1 Conn. R., 512.

       The 17th, 56th and. 59th sections of the act concerning prisons, are in the following words.
      “ Sect. 17. The sheriffs, in the several counties, shall have the charge and custody of the jails in their respective counties, and be the keepers of them ; and may appoint under them such keepers of said jails as they shall see fit, which appointments shall not be effectual, until approved by the county commissioners in their respective counties; and said sheriffs shall be responsible for all damages that any person shall sustain, by the escape of any prisoner out of such jails, through the fault or connivance of such keepers, or of any other person having the charge of such jails, under such sheriffs, and also for all other faults and negligences of such under-keepers, appointed by them, in any matters respecting their trust.”
      “ Sect. 56. Whenever any jail in this state shall have been provided with suitable and adequate accommodation appurtenant thereto, to be used as a county work-house, or house of correction, the judge of the county court and the county commissioners of the county, in which such jail shall be situated, shall certify the same under their hands, or the hands of a majority of them, and shall cause such certificate to be recorded in the records of such county, and after such certificate shall have been so made and recorded, it shall be lawful to commit to such jail, all persons by law subject to imprisonment in such county work-house, or house of correction, in accordance with the several provisions hereinafter contained.”
      “ Sect. 59. The keeper of the jail, approved as is provided by this act, shall bo the master or keeper of such work-house, or house of correction, and said .judge and county commissioners may, if they shall see cause therefor, appoint an assistant master or keeper of such work-house, or house of correction, and may prescribe the duties to be performed by them respectively, and said master or keeper, and said assistant master or keeper, when required by said judge and county commissioners, shall respectively give bond, with surety, to the treasurer of the county, for the faithful performance of the duties of his office, and shall be subject to be removed from his office, by said judge and county commissioners, when they shall judge that there is sufficient cause for such removal.”

   Hinman, J.

This is an application for a mandamus by the sheriff of the county of Middlesex, to restore the applicant to his* control of the county jail, which is withheld by the defendant, a former deputy jailor, who was removed from office by the applicant. A mandamus lies to compel the admission or restoration of a party to any office or franchise of a public nature. 1 Sw. Dig., 563. Fuller v. Plainfield Aca. School, 6 Conn. R., 532. It is a prerogative writ, and was introduced to prevent disorder from a failure of justice, and defect of police; and ought therefore to be used on all occasions where the law has established no specific remedy, and where injustice and good government there ought to be one. Rex v. Barker, et. ah, 3 Burr., 1262. If, as seems to be the case in England, it will be granted to restore an alderman to precedency, and an attorney to practice in an inferior court, it surely ought to protect the sheriff in the functions and emoluments of his office. But it is contended that, as the statute authorizes the county jails, to be used as county work-houses in certain cases, the jail is therefore devoted to two distinct purposes, under two sets of officers, who are independent of each other. We think this a perversion of the object of the legislature, in providing for the establishment of work-houses and houses of correction. The statute in relation to jails, p. 730, gives the charge and custody of them to the sheriffs. They alone are responsible for the safety of prisoners committed to them ; and it is therefore right that they should have the exclusive custody of them, which they can not have without the control of the jails. This is necessary to preserve good order. No one could safely accept the charge of the jail and the prisoners, without it; and the right of another independent officer to use the same jail for a different class of prisoners, is inconsistent with such control, and was never intended to be sanctioned. When, therefore, it is provided that the keeper of the jail, shall be the keeper of the work-house, it obviously refers to the deputy jailer, who is appointed by the sheriff, and must necessarily be his deputy; and being his deputy, he is necessarily under his control in the discharge of his duties. The employment of the jails as work-houses, is intended to be subordinate to their more usual employment, as is apparent from the whole scope of the statutes. And where there is a conflict, the authority of the sheriff must prevail. Subject to the approval of the commissioners, the sheriff appoints the deputy jailers. Probably it was not anticipated that he would appoint improper persons, or that the commissioners would refuse to approve them if proper persons were appointed. Such a contingency therefore was not provided for. But this gives the commissioners no authority to appoint any other than the deputy jailer as the keeper, for the statute is imperative. “ The keeper of the jail, approved as is provided by this act, shall be the master or keeper of such work-house.” The jailer therefore, is ex officio made the keeper of the workhouse, and as he is appointed by the sheriff, whose deputy he is, we think it was intended that the sheriff should control him, not merely as the keeper of the ordinary prisoners, but as the keeper of the work-house prisoners, so long as the jail and the work-house remain the same. This control can not be taken from the sheriff, under color of refusing to approve a deputy appointed by him. The sheriff must continue to appoint until some one is approved, and in the mean time, he must, from the necessity of the case, take charge of the jail, and all the prisoners in it, so long as they remain there.

It has not been questioned that the sheriff had power to dismiss his former deputy, and as he was the keeper of the work-house, only by virtue of his being deputy jailer, his dismissal from that office was of necessity a dismissal from that of keeper of the work-house.

But it is claimed that the appointment of the defendant as assistant keeper by the county commissioners was valid, and gave him authority as such assistant keeper to take charge of the work-house.

The authority to appoint an assistant, is given in the same section that declares that the keeper of the jail shall be the master of the work-house, (Stat. p. 741, § 59,) and, of course, is founded upon the supposition that there is such a master to be assisted in the discharge of his duties. This master must be the deputy of the sheriff, and as such subject to his supervision and control; and the statute never intended to authorize this supervision and control, to be taken from him, under color of the appointment of an assistant to his deputy. Had there been a master keeper at the time of this appointment, assuming it to be a valid appointment, it might plausibly be said that from necessity, the assistant would hold over on the death or resignation of the master. But even then he must be subordinate to the sheriff; for we should require a very clear expression of the will of the legislature, before we should believe that two officers, each independent of the other, were intended to be placed over such an institution as a public prison. We do not feel called upon, therefore, to determine whether the commissioners, since the office of judge of the county court has been abolished, can alone appoint an assistant, being satisfied that under the circumstances of this case, the defendant has no authority under it to exercise power in opposition to the sheriff

But a part of the jail has been used as a dwelling for the jailer and his family, and there is some land contiguous to the building, and used in connexion with it, which, with the jailer’s house, it is gravely claimed is county property, the possession of which, must be sought for in an action of disseisin. No argument can be necessary in answer to such a claim. If the public, through the public officers, can not obtain the control of the jails from out going keepers until after the end of an ordinary law suit, it is time that a remedy should be provided for such vexation. There can be no foundation for this claim; and if there is any property which is not a part of the jail or appurtenant to it, the finding does not show it. We therefore advise the superior court to grant the mandamus asked for.

In this opinion, Stokrs, J. concurred.


text:
    Calef vs. Phelps and another.
    The provision, in the aot of 1855, relating to courts, [Stat. 1855, Oh. 26, § 17,] that the superior court shall have jurisdiction of all matters pending in or cognizable by the county court, effected no change in the law as to the officer to whom the bond should be taken on an appeal from a judgment of a justice of the peace, in a case in which such bond was previously expressly directed by statute, to be taken to the treasurer of the county.
    Therefore, where after the passage of such act, the defendant, in an appeal by him from the judgment of a justice of the peace, on a complaint for selling spirituous liquor, entered into a recognizance to the treasurer of the state, for his appearance before the next superior court; it was held, that such recognizance was invalid, and that an action founded thereon could not be sustained.
    This was an action of debt, on a bond of recognizance, brought by Arthur B. Calef, as treasurer of the state of Connecticut, against Joseph B. Phelps and Timothy Loomis, demanding forty dollars.
    The bond in question was a recognizance, taken by Joseph E. Lathrop, Esq., a justice of the peace for the county of Middlesex, on a complaint exhibited to him, by a grand-juror, alleging that said Phelps, at Middletown, on the 18th day of July, 1855, sold and delivered to one Seth C. Hubbard, spirituous and intoxicating liquor, contrary to the statute in such case, made and provided. ' Phelps was arrested and brought before justice Lathrop, who, having inquired into the facts, alleged in such complaint, found the defendant guilty and ordered him to pay a fine of twenty dollars to the treasury of the town of Middletown, and the costs of said prosecution, taxed at six dollars and sixty-eight cents.
    From this judgment Phelps appealed; and thereupon as principal, acknowledged himself bound in a recognizance of forty dollars, with said Loomis as surety, to the treasurer of the state of Connecticut, for the appearance of Phelps, before the superior court for the county of Middlesex, on the first Tuesday of September, 1855, to answer said complaint, and abide the decision of the court thereon. The cause was continued to the term of said superior court holden in November, 1855, when said Phelps and Loomis made default of appearance.
    The defendant demurred to the plaintiff’s declaration, on the ground that the recognizance was taken to the treasurer of the state, when it should have been made and taken to the treasurer of the county of Middlesex; and the case was reserved for the advice of this court.

      Tyler and Culver in support of the demurrer.
    1. The statute directs that the bond of recognizance in such cases shall be taken to the treasurer of the county and not to the treasurer of the state. Rev. Stat., 822.
    The justice before whom the defendant was prosecuted, had no authority to require and take bonds, on an appeal from his decision, except that which is conferred by the statute, and if the recognizance is different from that prescribed, it is illegal and void. Billings v. Avery, 7 Conn. R., 236. Pardee v. Platt, 20 Conn. R., 402. Ferry v. Burchard, 21 Conn. R., 597.
    2. If the statute on which the prosecution is founded, had not provided to whom the bond on an appeal should be taken, it might be argued, that the statutory provision, and the decisions in analogous cases require, that the bond taken by the justice in this case, should be the same as the statute requires on a binding over. But when the act which creates the offence charged in the prosecution, expressly provides that the recognizance shall be taken to the treasurer of the county, analogy does not require that it should be taken to the treasurer of the state. In such case the justice has no discretionary power, for the statute is imperative.
    3. No authority can be found where it has been determined, that the rule for taking bonds is to be governed by analogy in other cases of appeal, if the statute has made provision on the subject, directing how bonds shall be taken. It is only when the statute has. made no provision for taking bonds, that courts have adopted such a rule.
      Potter v. Kingsbury, 4 Day. 98. Darling v. Hubbell, 9 Conn. R., 350. Goodwin v. Dodge, 14 Conn. R., 206.
    4. The bond in question, was not a voluntary bond on the part of the defendant ; it was obtained by duress under a penalty of imprisonment. It is an official bond required by order of the justice, who had final jurisdiction of the offence alleged in the indictment, subject to the defendant’s right to appeal.
    5. The treasurer of the state, has no claim to the benefit of the bond in question. And it is to be presumed, there being no statute authorizing a bond in this case to be taken, payable to the treasurer of the state, that it was not the intention of the legislature, when it abolished the county court, that the treasurer of the state should have the benefit of it. The abolishing of the county court did not do away with the office of treasurer of the county.

      Vinal, against the demurrer.
    1. By Sect. 10, of the act of 1854, for the suppression of intemperance, any person might appeal from a final judgment, &c., to the county court, provided, that upon such appeal, he should give a bond of recognizance with good and sufficient surety to the treasurer of said county, conditioned for his appearance before said county court, &c. But the legislature of 1855, having abolished county courts, and not having made any provision respecting the giving of bonds on appeals to the superior court, there is therefore now no statute upon that subject, for it would be absurd to claim that said tenth section is now in force, because the condition of the bond would then be, to appear before a court not in existence.

    2. But the bond declared on is good at common law, because, 1. It is a voluntary obligation. 2. It was given to the party in interest. 3. The proceeding in taking the same is in analogy to the statute, relative to binding over by justices of the peace. Rev. Stat., 344. Potter v. Kingsbury, 4 Day, 98,
   Hinman, J.

The defendant, Phelps, in August, 1855, was brought before justice Lathrop, charged with having sold spirituous liquors contrary to the statute. He was found guilty and fined by the justice, and thereupon he appealed to the superior court; and on the appeal, the recognizance now in suit was entered into, conditioned that he appear before the next superior court to answer to the complaint, and abide the judgment of the court thereon. The recognizance was in proper form, but it was taken to the treasurer of the state, instead of the treasurer of the county; on which account it is claimed to be void: and the court are of opinion that it is so. It was an official recognizance, given under duress of. imprisonment, and therefore not voluntary. Its object was to compel an appearance to answer to a criminal charge, pursuant to the order of the magistrate professing to act under the authority conferred by statute. In fact no such authority was conferred on the magistrate; but the authority was to take a recognizance to the treasurer of the county. It becomes, then, a different obligation from the one prescribed, and is, therefore, void. Ferry v. Burchard, 21. Conn. R., 597. The prosecution was founded on the tenth section of the statute, which authorizes any person to appeal from a judgment rendered against, him by a justice, to the county court next to be holden, &e., provided that upon the appeal, he shall give a bond of recognizance, with good and sufficient surety, to the treasurer of the county, in such an amount as said justice shall order, conditioned, &e. Rev. Stat., p. 822. This section was modified by the act of 1855, which abolishes the county court, and transfers its jurisdiction to the superior court. But the office of county treasurer is not abolished, and it is nowhere provided that bonds of recognizance which there were directed to, be taken to that officer, should thereafter be taken to the treasurer of the state ; and we do not assent to the claim, that the mere abolition of the county court, effected a change in the officer to whom such bonds should be taken, where, as in this case, they were expressly directed to be taken to the treasurer of the county. It necessarily effected a change in the condition of recognizanees in respect to the court before which the party was bound to appear; but none as to the officer to whom the bond should be taken. We therefore advise the superior court to render judgment for the defendants.

In this opinion, Storks, J. concurred.

Judgment for the defendants.


text:
    Preston vs. Mann and another.
    Whether the plaintiff, on the trial of an action on a negotiable instrument, where the declaration contains no statement of intermediate indorsements, can rely on the incidents of the intermediate title, qu ?

    But where under such declaration, evidence relating to the intermediate title was introduced only to meet a matter of defence set up by the defendant, after the plaintiff had made out a prima facie case ; it was held, that such evidence was properly permitted to go to the jury.
    In this state, and in the courts of this country and of England generally, the proposition of Lord Denman, (Pickard v. Sears, 6 A. & E. 469,) seems to have met with approbation; that, “ where one by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things, as existing at the same time.”
    The word “ wilfully” as used in this connection, is not to be taken in the limited sense of the term “ maliciously,” or of the term “ fraudulently,” nor does it of necessity imply an active desire to produce a particular impression, or to induce a particular line of conduct.
    Whatever the motive may be, one, who so acts or speaks, that the’natural consequence of his words or conduct, will be, to influence another to change his conduct, is legally chargeable with an intent or wilful design, to induce the other to believe him, and to act upon that belief), if such prove to be the actual result.
    Inasmuch as the doctrine of estoppel, especially concerns conscience and equity, ignorance, unaccompanied with culpability of any kind, ought to excuse conduct and language, which would otherwise render the author justly responsible for the injury resulting to another, who had placed confi» dence ¿n them.

      There are eases, however, where the excuse of ignorance can not he permitted to avail, without defeating the very principle of justice, upon which the doctrine of estoppel is founded.
    It would seem that where the alleged ignorance involves gross culpability, there should be a limit to the facility with which a party, whose words or conduct have misled another to the latter’s injury, should be permitted to qualify his responsibility, by pleading his own fault.
    One who has voluntarily induced another to believe that he was pot ignorant of a certain matter is estopped, after the other has been betrayed by his false representation, from pleading a want of the knowledge which he has once designedly, and to another’s hurt, assumed to possess.
    Where one, with a view of purchasing a promissory note, to which the defendant was nominally a party, inquired of him respecting such note, stating all the particulars, and the latter replied, that it was a good note, and would be paid; it was held, that the defendant was bound to know that he would be understood as speaking intelligently, of a contract with which he was familiar, and that he could not afterwards he permitted to claim that said note was invalid, by reason of a defence„of which he was ignorant when said representations were made.
    This was an action brought by the plaintiff, as endorsee and holder of a promissory note, against Benning E. Mann and Samuel C. Savage, partners under the name of B. E. Mann & Co.
    The declaration alleged, substantially, “ that the said B. E. Mann & Co., at Hartford, on the 30th day of December, A. D. 1853, by their note of that date under their hands, for value received, promised, nine months after date, to pay to the order of themselves, at the Farmers and Mechanics Bank, the sum of eight hundred and thirty-two dollars and fifty-three cents, and that the defendants, by their endorsement of the note, ordered the same to be paid to the plaintiff or his order, according to the tenor of said note, of which the defendants then and there had notice, and thereby became liable, &c.”
    The defendants pleaded the general issue, and the cause was tried at the term of the superior court for the county of Tolland, holden in November, 1855.
    On the trial, the plaintiff introduced in evidence the note in question, which was for $832.52, dated December 30, 1853, and payable to the order of the makers, at the Farmers and Mechanics Bank at Hartford, nine months from date. It was endorsed with the names of B. B. Mann and Co., and De W. C. Freeman; and had also been endorsed with the name of C. Glazier, which had been stricken out.
    The plaintiff also introduced evidence to prove, and claimed to have proved that the firm of B. E. Mann & Co., consisted of the defendants, and that the plaintiff purchased and paid the full amount of said note, about one month after it fell due, of Carlos Glazier, who was the holder of it at the time it became due.
    The plaintiff also claimed to have proved, that said Glazier purchased said note of one De Witt C. Freeman, supposing that Freeman had an interest in it, and also had authority from the defendants to dispose of it. But said Glazier’s only knowledge of the actual ownership of the note, was his inference from the fact, that Freeman had it in his hands, and was offering it for sale. That Glazier paid Freeman the full amount of the note, deducting six per cent, for the time it had to run, and also deducting seventy dollars, which was the amount of a book account which Glazier had against Freeman; and that said note was so transferred to Glazier, on the 19th day of May, 1854.
    The plaintiff also claimed to have proved that Freeman sold said note to Glazier, with the consent and authority of B. E. Mann, one of the defendants, and that Freeman informed Glazier of said consent and authority, before he purchased the same, and declared to Glazier, that said note was a good and valid note; that Glazier, being informed by Freeman that said firm of B. E. Mann & Co., consisted of B. E. Mann and Samuel C. Savage, declined purchasing the note, until he could see Savage ; that he called upon Savage on the 19th day of May, 1854, and before he purchased the note, for the purpose of satisfying himself as to its character, and told Savage, that he came to him for advice, and informed him that Freeman had offered him a note, signed by B. E. Mann & Co-, made payable to their order, at nine months from date, and dated December 80th, 1853, and described the amount of the note; that he asked Savage if he was one of the firm of B. E. Mann & Co., as described in the note ; that Savage replied that he was; that Glazier further asked Savage if said note was a good note and would be paid at maturity, and that Savage replied that it was a good note and would be paid at maturity; that Glazier thereupon informed Savage that he should go home and discount said note ; and immediately returned to his store, where Freeman was awaiting the result of said interview with Savage, and that induced by the conduct and declarations of the defendants, Glazier purchased said note.
    To the admission of this evidence the defendants objected, on the ground that it was inadmissible under the declaration, and that said note came to the plaintiff after due. But the court overruled the objection, and admitted the evidence.
    The defendants then offered evidence to prove that said partnership was dissolved on the 6th day of May, 1854, and produced as evidence, that due notice had been given of such dissolution, a newspaper printed in said city of Hartford, containing a notice of such dissolution, which notice was admitted to be correct; and also evidence that Glazier and the plaintiff had no previous dealings with said firm, and that said B. E. Mann, was the acting partner in said firm.
    The defendants also claimed to have proved that the note in suit was executed and endorsed (if at all,) and put in circulation, after such dissolution of said .copartnership, and after publication of said notice, by Benning E. Mann solely, and without the knowledge of Savage; and that it was so executed, endorsed and put in circulation, after said 6th day of May, 1854, and was then dated back to December 30th, 1853.
    The defendants also claimed to have proved, that when Glazier informed Savage that said note was offered to him by Freeman for sale, and enquired respecting it, Savage informed Glazier that he had formerly been a partner of the firm of B. E. Mann & Co., but that said firm was dissolved on the 6th day of May, 1854, and that the legitimate paper of B. E. Mann & Co., would be paid at maturity; that Glazier told Savage that the note was dated December 30th, 1853, and the amount of said note, but he did not inform Savage, nor did Savage know, that the note had been so made and put in circulation after said dissolution, nor that the note was void by reason of usury and illegal consideration ; but was wholly ignorant of all the circumstances attending the formation and circulation of said note, and that said note was not a partnership transaction, and was executed after said dissolution.
    The defendants also offered much evidence to prove, and claimed to have proved, that said note was void, and was made wholly upon usurious and illegal considerations ; that no part of the consideration of said note was for money or other value actually received, but was the balance due on other usurious transactions with one Joseph S. Curtis, and that said Curtis had loaned money to said firm, without the knowledge of said Savage, at the rate of 73 per cent, per annum, and procured the interest to be compounded monthly or oftener, and added to the principal; that said note was entirely made up of said usurious interest, and was wholly without consideration. That Savage, at the time of said conversation with Glazier, and long afterward, was entirely ignorant that said note was tainted with usury, and was void and bore a false date; and that from its date, Savage supposed the note enquired about, to have been then executed, and to be genuine.
    The defendants requested the court to charge the jury in writing, that if the note in suit was executed, or put in circulation after the dissolution of the partnership, the plaintiff could not recover.
    That the publication and notice in the newspapers of the dissolution on May 6th, 1854, was sufficient notice of the dissolution to all persons who had not had previous dealings with the firm, and that under this evidence, which was not contradicted, it was the duty of the jury to find that the firm was then dissolved, and that the plaintiff was bound to show by proof that he had previous dealings with the firm, or he could not recover on the note in this part of the case; that Preston having taken the note after due, and having declared upon it as taken from the defendants, held it subject to all the defences or infirmities affecting it.
    That the conduct or the declarations of Savage to Glazier did not amount to an admission or an estoppel, unless made intelligently and with a full knowledge of the facts, — and that the note was made after the dissolution, and if he, Savage, spoke of a note, it was of one purporting to be dated in fact, on the 30th day of December, 1853.
    That the declarations of Savage, as sworn to by Glazier, did not amount to a new promise to pay a note given in fact after the dissolution, he Savage being ignorant of that fact.
    That if this note had never been in the hands of any other parties as owners thereof, than B. E. Mann & Co., until Glazier received it, then the note had no legal existence, till May 19th, and was therefore put in circulation after the notice of dissolution, and after the dissolution, and so the plaintiff could not recover upon it, unless the retiring partner, Savage, assented to the putting it in circulation after the dissolution.
    If the jury should find that Savage informed Glazier, at the time when Glazier either showed or spoke of the note, that the partnership was dissolved, then Glazier took the note at his own peril and subject to all the infirmities and defences affecting it.
    That the notice of the dissolution having been published and there being no contradictory evidence, the jury were bound to find that the partnership was dissolved on the 6th day of May, 1854, unless they should find that Glazier had had previous dealings with the defendants of which there is proof.
    If the jury shall find that the note was put in circulation after the dissolution of the partnership and without the knowledge of Savage that said note was so put in circulation, then the plaintiff can not recover of the defendants.
    The defendants also requested the court to charge the jury on the question of usury, but a specific statement of that request and of the charge of the court on that point are rendered immaterial by the opinion of the court.
    The court did not in charging the jury comply with,the request of the defendants, but on the question of the plaintiff’s right to maintain the present action, charged them substantially as follows:
    This note was conveyed to the plaintiff by Carlos Glazier, who, it is claimed, purchased it in a fair business transaction, paid its full amount, less only six per cent, and took it subject to all the infirmities to which it would be liable in the possession of Glazier, and succeeded to all the rights which Glazier acquired by said purchase.
    On the question of estoppel, after alluding to the claim of the parties and the evidence relied upon by each of them, the court charged substantially as follows:
    “ If you shall find from the evidence that the defendants gave Glazier to understand and believe, that this note was a good genuine note, and that acting upon that belief, Glazier purchased the note as claimed by the plaintiff, then the defendants should be estopped from saying now that the note is not a genuine and good note, as against them, although the contrary may be the fact; or in other words they should now be estopped from setting up the defence claimed by them.” On the question of usury, the charge was as follows :
    “ If you shall find that the money borrowed by Mann & Co., of Curtis, was borrowed upon an agreement to pay the sum of twenty cents a day for the use of one hundred dollars, such agreement is clearly usurious; and if you shall further find that the whole or any part of the note in suit, is made up of such usurious interest, then the whole or such part of the note as constitutes such interest, is void by the statutes of this state, and no recovery can be had therefor in this suit. The burden to establish this fact rests upon the defendants.”
    Upon the question whether the note was executed and put in circulation after the dissolution of the co-partnership, the charge was as follows:

      “ The law is so, that if this note was executed and put in circulation after the dissolution of the co-partnership, and there be no estoppel found by you, the plaintiff can not recover against the defendant Savage, unless you shall find that he assented to its being put in circulation and authorized it.”
    “ If you shall find that Mann consented to this transaction and authorized it, and that Savage did not, you may find a verdict against him, though your verdict may be for Savage.”

      “ It being proved and admitted that notice of the dissolution of the firm of Mann & Co., was published on the 6th day of May, 1854, such publication was in law notice to all persons who had not previous dealings with the firm of such dissolution, and if the plaintiff claims an exemption from this rule, he should show that he had previous dealings with said firm.”
    The jury returned a verdict against both defendants, who thereupon moved for a new trial on the ground that the court erred in admitting testimony objected to by them, and for a misdirection.

      Welles and Fellowes, in support of the motion.
    1. There was a variance between the declaration and the proof. For Freeman’s name not having been stricken from the note as an endorser, the declaration omits to trace the plaintiff’s title through him and alleges the plaintiff to be endorsee of the defendants.
    2. The plaintiff could not protect himself under Glazier’s title. Glazier’s name was erased from the note, and he was not alleged in the declaration to be the endorser to the plaintiff.
    3. No estoppel was proved, and the defendant was entitled to a charge to that effect from the court below. Howard v. Hudson, 20 Eng. L. & Eq. R., 48. Brown v. Wheeler, 17 Conn. R., 345. Roe v. Jerome, 18 Conn. R., 138. Whittaker v. Williams, 20 Conn. R. 104. Dyer v. Cady, 20 Conn. R., 568. Williams v. Bartholomew, 1 B. & P., 326.

      T. C. Perkins and Hyde, against the motion.
    1. The note in suit came into the plaintiff’s hands after it became due. He therefore took it subject to all the equities to which it was subject in the hands of Glazier, who was the owner of it when it fell due; and he succeeded to all Glazier’s rights. Chalmers and others v. Lanion, 1 Camp., 383. Thomas v. Newton, 12 E. C. L. R., 285. Story, on Prom. Notes, §§ 178, 195. 1 Pars, on Contr., 212, 213. 18 Conn. R., 138.
    2. The charge of the court upon the claim of the plaintiff, that in consequence of the representations of Savage, Glazier was induced to purchase the note, was correct, These declarations were made with the knowledge that Glazier was considering the matter of purchasing the note, and for the purpose of influencing his decision.
   Storrs, J.

On the trial in the court below, the right of the plaintiff to recover against Savage, one of the defendants, was disputed on various grounds; chiefly, because the note in suit, although purporting to be executed in the name of the firm of B. E. Mann & Co., of which Savage had been a member, and bearing date during the continuance of the partnership, was in fact executed by another partner, after that relation had been dissolved, and was therefore antedated. It is insisted that such a defence, whatever incidents may be connected with it, which might make it unavailable against a holder who had received it in good faith before maturity, may be successfully set up against a party, who, like the plaintiff, bought the note after it became due.

To meet this position of the defendant, the plaintiff offered, and was permitted to prove, that while the note, which was payable to the order of the makers, and by them endorsed and transferred to one Freeman, who before its maturity transferred it by endorsement to one Glazier, was in the hands of the latter, a transaction passed between Savage and Glazier, which, upon the principles of the doctrine of estoppel, would preclude the former from setting up against Glazier, the defence referred to; and that the plaintiff, as a purchaser for value from Glazier, succeeded fully to all his rights and equities. It is not denied that such would be the legal operation of the purchase; but the defendant urges that the plaintiff can not under the allegations of his declaration, take advantage of the incidents of the intermediate title; having averred an endorsement by the payees directly to himself, omitting any reference to the former endorsees and virtually striking their names from the note. The defendant says further, that the conduct which is imputed to Savage, and is assumed to amount to an estoppel, and which might do so, if connected with a contemporaneous knowledge of the facts to which his conduct had reference, fails in the absence of such knowledge, to constitute any estoppel whatever.

The difficulty which is suggested, relative to the declaration, would seem to be nicely technical, and should not be favored unless in conformity to established authorities. The point made is not supported by any American decisions, and we are referred only to a marginal note of an English exchequer case, (Steen v. Yglesias, 1 Gale, 98,) no report of which has been produced, in which appears a qualified and guarded suggestion, sometimes repeated in text-books in the same qualified manner, that the omission in a declaration of a statement of intermediate endorsements would seem to deprive the plaintiff of the benefit of the intermediate title. There are technical objections which make the suggestion at least questionable. The right of a plaintiff to omit to trace his title in his declaration through all the previous endorsees, and to allege an endorsement from any one of them to himself, must depend on the principle that the legal effect of a transfer through various prior endorsers is the same as a transfer to the plaintiff from the first endorser. A defendant would otherwise be permitted to contradict a declaration like the present by showing that the transfer was not made by the first endorser to the plaintiff, but to a third person from whom the plaintiff took his title. This is not so, and the plaintiff, it would seem, should be permitted, under such an allegation as he has made, to prove, in strict conformity with the substance of his declaration, that his title came through a chain of several former holders; and to avail himself of any of the incidents of the title of any of them. However this may be, we have concluded that, inasmuch as the plaintiff had made out a prima facie case, and introduced evidence of an intermediate title, merely to meet a matter of defence set up by the other party, he was rightly permitted to do so, although he had not specifically declared upon such title.

The question of estoppel involves graver considerations, and in sustaining the charge of the court below, w.e may approach to the verge of the law. The doctrine of estoppel in pais, notwithstanding the great number of cases which have turned upon it, and are reported in the books, can not be said even yet to rest upon any determinate legal test, which will reconcile the decisions, or will embrace all transactions, to which the great principles of equitable necessity, wherein it originated, demand that it should be applied. In fact, it is because it is so purely a doctrine of practical equity, that its technical application is so difficult, and its reduction to the form of abstract formulas is still unaccomplished. An able judge (.Baron Park,) has suggested that only such acts and conduct should be treated as an estoppel in pais, as would sustain an averment of false representation in an action on the case. This test, however, does not seem to have been adopted by leading jurists. In Connecticut, and in fact in the courts of this country, and of England generally, the proposition of Lord Denman, (Pichará v. Sears, 6 Adol. & El., 469,) seems to have met with approbation. “ Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a' different state of things, as existing at the same time.” The ,_word “ wilfully,” as used in this connection, is not to be taken i in the limited sense of the term maliciously, or of the term fraudulently; nor does it of necessity imply an active desire to produce a particular impression, or to induce a particular line of conduct. Whatever the motive rnay be, if one so acts or speaks, that the natural consequence of his words and conduct will be to influence another to change his condition, he is legally chargeable with an intent, a wilful design, to induce the other to believe him, and to act upon that belief, if such proves to be the actual result.

It is enough that “ a reasonable man in the situation of that other would believe that it was meant that he should act upon it.” ( 1 Saund. PI. & Ev., 1088.) The precise question, by the claim of the defence, relates therefore, not to the intent, design, or wilfulness, with which Savage produced the impression on Glazier’s mind, that the note was a valid note of B. E. Mann & Co., for the intent sufficiently appears; but the real enquiry is, how far his ignorance of the facts, to which his representations had reference, will qualify and excuse bis conduct, and relieve him of the responsibilty which would ordinarily attach to 'it. For it is undeniably true, inasmuch as the doctrine of estoppel especially concerns conscience • and equity, that ignorance unaccompanied with culpability of any kind, ought to excuse conduct and language which would otherwise render the author justly responsible for the injury resulting to another who had placed confidence in them. For instance, it often happens that a mere omission of duty (such as the silence of the owner of property, while it is sold in his presence as the property of another,) will create an estoppel in favor of the party who has been misled by such an omission. If, however, the silence were the result of an ignorance of his title, no omission of duty could be charged upon the owner; he would be as innocent as the purchaser, and would not be es-topped from his right to assert his title against the latter.

There are, however, other cases where the excuse of ignorance can not be permitted to avail, without defeating the very principle of justice upon which the doctrine of estoppel is founded. It would seem that where the alleged ignorance involves gross culpability, there should be a limit to the facility with which a party whose words or conduct have misled *another to the latter’s injury, should be permitted to qualify his responsibility by pleading his own fault. For instance, if one, who is apparently a party to a bill of exchange, on being enquired of concerning the signature pronounces it to be genuine, he can not afterwards set up against a purchaser whom he has misled, forgery of his own name, although he may have accredited the bill ignorantly. How far the breach of duty should extend to preclude the party guilty of it, from extenuating his false representations by his want of knowledge, it is unnecessary to enquire. Suitably restricted, the principle of which we have given an intimation, unquestionably exists, and indeed was hinted at in the opinion of this court in a recent case. (Whitaker v. Williams, 20 Conn. R., 104.) “ The doctrine,” say the court, “ that one should not be permitted to retract representations, by which he has induced another to adopt a particular course of conduct, supposes, and is to be understood with, the qualification (which is indeed part of the principle itself,) that the one, by whom such representations were made, had a knowledge of his rights. In laying down this qualification we speak of the principle generally, and would not be understood to say that there may not be cases where there is such culpability on the part of the person making such representations, or such particular circumstances or consequences attending them, that he would not be permitted to set up the want of such knowledge.”

In one class of transactions, the excuse of ignorance must obviously yield to the operation of the very principle of estoppel inpais. We refer to cases, among which, on the hypothesis that the jury have found the facts as claimed by the plaintiff, the present may properly be classified; cases where the misrepresentations which mislead another, are made by a party, who is consciously ignorant of the matter to which they relate at the very time that he professes a full knowledge of it. This wilful and wrongful assumption of knowledge is the chief element in the imposition which he practices, and he should not afterwards be suffered to disclaim an acquaintance with facts which he has once unjustly and injuriously professed to know. He has voluntarily induced another to believe that he was not ignorant of a certain matter: after the other has been betrayed by this false representation, its author should not be permitted to retract it, any more than he should be permitted to deny any other conclusion which he wilfully suffered the other to draw from his words and conduct. He is estopped from pleading a want of the knowledge which he has once designedly assumed to possess, and to another’s hurt.

Let us apply this idea to the facts before us. Glazier seeks an interview with Savage on the subject of a note, to which Savage is nominally a party, with the view, which he discloses to Savage at the time, of purchasing the obligation. His enquiry does not in general terms relate to negotiable paper, signed in a certain manner, but he states to Savage all the particulars of the note in question, its date, its amount, the time of its maturity, the form of signature, and the names of the payees. To an enquiry thus intelligently put, Savage replies that it is a good note and will be paid at maturity; an answer from which Glazier might rightfully infer that Savage was acquainted with the particular note spoken of, and the circumstances attending it, and that he. knew it to be a valid note which ought to be paid. Savage was bound to know and did know that Glazier would understand him as.speaking intelligently of a contract with which he was familiar. Shall he be now allowed to say that he knew nothing of the particular note ? that he was totally ignorant of its existence, and the circumstances attending it at the time of his interview with Glazier 1 We can not recognize such a principle. The representations of Savage being made relative to a matter affecting his own pecuniary interest, must have carried with them to the mind of the person with whom he was dealing, all the sanctions of a new promise. In fact, in cases not distinguishable from the present, courts have sometimes chosen to regard declarations of the kind imputed to the defendant, in the light of new and obligatory promises. In a Pennsylvania case, (Carnes v. Field, 2 Yeates, 541,) this idea was applied to circumstances very similar to those now under review. A money bond had been given for certain lands under the belief that the title was good to the whole, while in fact it proved defective in respect to a very large proportion of the entire quantity. Before ascertaining this fact, the obligors were called upon by a person who desired to purchase the obligation, and who was informed by them that it was signed by them, and would be paid. The court held, in an action brought by the party who had purchased the bond under these circumstances, that he could recover, notwithstanding the want of knowledge of the state of their title on the part of the obligors, on the ground that the representation of the latter was, under the circumstances, to be treated as a new promise. The reason given for the decision may be somewhat questioned, as the independent efficacy of such a promise is evidently not so great as to make it a substantive ground of legal liability, and its effect would seem to be rather that of a representation or ratification, conclusive upon the party who makes it in favor of the party induced by it to change his condition.

It will be seen that the present case furnishes clearer indications than that just cited, of an improper assumption of knowledge by the party now seeking to avoid the effect of his representations on the ground that they were not intelligently made.

We are not able to discover that our conclusion is inconsistent with any of the adjudged cases to which our attention has been called.

The charge of the court below, on the point which we have considered, being conformable to the views we have expressed, was, in our opinion, correct. Our disposition of that question renders it unnecessary to consider the others which have been presented on the argument.

A new trial is not advised.

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

New trial not to be granted.


author: Ellsworth, J.

text:
    West and others vs. Tolland.
    A petition for a highway may be withdrawn, after the commissioners to whom it has been referred have verbally announced to the parties, that they are of opinion, that public convenience and necessity do not require such highway to be laid out
    This was a petition for a highway, brought by certain inhabitants of the towns of Tolland and Ellington. At the term of the county court holden in March, 1855, a decree was passed that the petition should be heard and determined by the county commissioners. After giving the prescribed notice, a trial was had, and the commissioners having heard the parties with their witnesses and counsel were of opinion that public convenience and necessity did not require the road prayed for to be laid out. On the 28th day of June, 1855, to which time said trial had been adjourned, the commissioners publicly notified the parties and their counsel, that their decision was as stated above, and thereupon adjourned the trial without day. On the 29th day of June, the petitioners, in vacation, filed with the clerk of said court a notice, that said petition was withdrawn by them, although at the time, they well knew what the decision of the commissioners was.
    The petitioners also then notified the counsel for the respondents and said commissioners that they had withdrawn the petition.
    The clerk of the court made an entry on the docket that the petition was withdrawn.
    The commissioners subsequently made their report in writing.
    At the term of the superior court holden in September, 1855, the respondents filed a motion that said entry of withdrawal might be erased, and they be permitted to present the report of said commissioners to the court for acceptance.
    The court found the foregoing facts to be true, and also found that all the steps for a withdrawal of said cause required by the statute, had been taken after the decision of the commissioners was announced, and reserved for the advice of this court, the question whether said petition was legally withdrawn, and whether the respondents were entitled to have the entry of withdrawal erased, and the report of the commissioners 'received and accepted.
    Hyde, in support of the motion.
    1. A party will not be allowed to withdraw a case after a jury have declared their verdict and before it is accepted by the court.
    County commissioners are the only tribunal to hear and decide as to the necessity and expediency of laying out highways. Rev. Stat., p. 422.
    Any cause which would authorise a court to reject a report of county commissioners would authorize the court to grant a new trial after verdict of a jury.
    When commissioners announce their decision, it is as fully a decision of the cause as when a jury have declared their verdict, and there is no reason why the suit should be allowed to be withdrawn in the one case and not in the other. M’Curdy v. Mather, Kirby, 273.
    2. When a matter has once been fairly heard, and decided before a proper tribunal, justice demands that it should not be litigated anew. If the hearing was not an impartial one a new trial can be had.
    3. The withdrawal in the ease, prevents the decision of the commissioners, which had been made and announced, from becoming a matter of record and thus made final.
    4. The statute allowing. causes to be withdrawn is intended to extend to those cases only which may be withdrawn in court.
    Loomis, against the motion.
    The announcement by the county commissioners of their opinion, as stated in this case, could not prevent the withdrawal of the petition.
    1. By the statute for the regulation of civil actions, tit. 1, secs. 53, 54, the right of the plaintiff in any action or suit at law, or in equity, to withdraw such action or suit in vacation is expressly conferred, and as the exercise of such right under the statute, is subject to no limitation, or exception, and as the clerk is bound by the law (without awaiting the order of the court) to enter the withdrawal on the docket, it seems that it was not intended to make the right to withdraw, subject at all to the discretion of the court, or to give any right to erase the entry so made by the clerk,
    2. But if the statute referred to should be so construed as to confer on the plaintiff in vacation, only such rights as he previously had of withdrawing his action in court, then we claim, that the rules of law and the practice respecting the withdrawal of cases in court, will sustain the plaintiffs in their claim in the present case. The evident object of all statutes and decisions relating to the matter, is to give the plaintiff a certain time within which he can withdraw his action, (or suffer a non-suit.) In jury trials this time is in most states, either before the verdict is returned into court or before it is read by the clerk. Dove v. Hanks, 3 McCord, 559. Wooster v. Burr, 2 Wend., 295. 3 Bl. Com., 376.
    The case of M’Curdy v. Mather, Kirby, 273, which is relied upon by the defendant, is unlike the one under consideration. There was there a trial before the court, at the conclusion of which the judge announced his decision and directed the clerk to minute it, and all this was doné before the petitioner asked leave to withdraw; but the court in giving the opinion, referred to cases more analogous to the one under consideration, that is, to cases depending upon some report to be rendered in court, and recognized the rule that we claim. Now this decision so far as it is applicable to the present case, seems to admit the right to withdraw at any time before the report is returned into court. So under the statute, p. 66, section 52, it is not uncommon in practice to withdraw cases just before the verdict is read by the clerk.
    3. In the case under consideration there was no legal and binding decision by the county commissioners. The duty as defined by the statute, is “ to make report in writing of their doings to the court.” But at the time the present action was withdrawn, there was no report in existence, nothing in writing, and nothing addressed to or intended for the court. It is no part of the duty of commissioners to notify the parties of their opinion, and any opinion or decision announced to the parties is wholly unauthorized, and consequently can confer no'legal rights on the party in whose favor such opinion or announcement is made. The commissioners themselves in such case, would have the right to alter such decision, and make out such report in writing to the court, as to them might seem proper.
   Ellsworth, J.

The single question presented in this case is, whether the plaintiffs had a right to withdraw their petition, after a verbal communication by the county commissioners, that they were of opinion, and so decided, that the highway prayed for was not of public convenience and necessity. We think they had. The case was still undecided by the commissioners, in the eye of the law, and it remained so until the commissioners had drawn up and signed the report and presented it to the court, or the clerk of the court, to which it is returnable, or at least to the parties or their counsel; until this was done, they could not be said to have put their decision into legal form, or to have divested themselves of power to deliberate further, and change their opinion if they saw fit, upon giving notice to the parties. Somewhere there must be a point, to distinguish between mere opinion or purpose, and a fixed and unalterable judgment. Where is this point, in the doings of commissioners, whose report becomes a part of the records of the court? We think their report alone can speak their official acts, and therefore to that only can we look to know what those acts are. We are satisfied that nothing short of this will answer the requisites of the law, and that until they have finished and signed the report, they have not divested themselves of power to act in the premises, as they may have occasion. The same is true of auditors, committees in chancery and jurors. In the case of the latter, it has often been ruled on the circuit, that the plaintiff may suffer a nonsuit at any time before the verdict is placed in the hands of the clerk. Up to that moment any juror may withdraw his assent to the verdict, and the panel may destroy it or modify it as they please.

We are therefore of opinion that the petition was legally withdrawn, and that the respondents are not entitled to have the entry of withdrawal erased, or the report of the commissioners accepted, and so advise the superior court.

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