text:
    Adam vs. The Ames Iron Company and others.
    The established rule of the common law, (by which the writ of partition would lie only between coparceners,) that the plaintiff must be in possession, or seized, of the land wHen the writ was brought, has, since tie remedy by partition has been extended to joint tenants, and tenants in common, been uniformly adopted, whether the remedy is sought by writ, or by bill in equity.
    The statute of this state, authorizing the superior court, as a court of equity, to order a partition of real estate held in joint tenancy, tenancy in common, or coparcenary, does not introduce a different rule.

      Although, from the peculiar and intimate connection existing between tenants in common of real estate, the proof of an ouster by one tenant of another, ought to be of the most satisfactory nature, yet where the plaintiff brought a bill in equity for a partition of land, claimed by him. to be held by him and the defendants in joint tenancy, and such bill was referred to a committee, whose report, if it did not positively find the fact of such ouster in terms, embraced conclusive evidence of that fact; it was held, that, as the plaintiff was not in possession of the premises, when such bill was brought, it ought to be dismissed.
    This was a bill brought to the superior court for the county of Litchfield, by John Adam, against the Ames Iron Company and others, alleging that the plaintiff was tenant in common in fee simple with the defendants, of a certain tract of land, situated in the town of Salisbury, in said county, the plaintiff' owning five undivided eighths thereof, and the defendants the remainder, and praying for a partition of said premises among the several owners of the same.
    To this bill, the Ames Iron Company, and Horatio Ames, one of the defendants, filed an answer, alleging, among other matters, that said premises had been occupied and possessed by them, or by those under whom they, or one or the other of them, claimed title thereto, for more than forty,years, believing that they had good title thereto, by purchase, for the full value of said premises, that they were the owners of said premises, and that the plaintiff had no title therein, as tenant in common, or otherwise.
    At the term of said superior court, holden in February, 1855, the cause was referred to a committee, who made their report at a' subsequent term of said court, where the case was reserved for the advice of this court.
    The material facts, found by the committee, are stated in the opinion of the court.

      Peet and Warner, for the plaintiff.
    1. It is riot necessary, in Connecticut, that the plaintiff should be in possession of the premises, in order to bring a petition for a partition. Rev. Stat., 480.

      2. The defendants have no title by deed to the premises in question. The reception of rents and profits, by one co-tenant, is not enough to amount to an ouster of his co-tenant, but there must be some open, notorious act, such as a resistance to entry, or forcibly turning out of possession, in order to amount to an ouster. 1 Sw. Dig., 108. Allen v. Hall, 1 McCord, 131. Story v. Sawnders, 8 Humph., 663. Thomas v. Pickering, 1 Shep., 337.
    3. The evidence of exclusive claim of title, must be of the strongest kind, to establish an ouster of a co-tenant. 1 Sw. Dig., 108. Barnard v. Pope, 14 Mass. R., 434. There must be strict proof, not only that the first possession was under a claim of title hostile to the co-tenant, but that such hostility has existed and continued. Where there is no such avowed hostility, the law presumes that the possession is held in subservience to the co-tenant. 1 Sw. Dig., 168, 169. Barnard v. Pope, 14 Mass. R., 434. Brown v. Wood, 17 Mass. R., 68. 1 Pick., 114. 7 Verm., 12. 9 Conn. R., 241, §30. Lloyd v. Gordon, 2 Hars. & McHen., 254. 5 Wheat., 116.
    In the present case, the statute of limitations never commenced running, because there has never been an ouster, or denial of possession. All the facts found by the committee show that there never was even an exclusive claim of possession ;• and the contracts of 1842 and 1844, estop the defendants from denying that their possession has not been in subservience to the rights and possession of the heirs of Forbes.
    4. Partition of real estate, held in common, is matter of right, notwithstanding the difficulty of making it. Scoville v. Kennedy, 14 Conn. R., 348. 2 U. S. Dig., 637, § § 128, 130, 135.

      J H. Hubbard, for the defendants.
    1. The plaintiff can not have partition of the premises, because, at the date of his bill, he was ousted of possession, by the entry, and adverse holding, of the entire property, by the Ames Iron Company, in denial and defiance of the pretended right of the plaintiff. A party, out of possession in such manner, can neither convey, nor bring use and occupation, nor have partition. He must first get possession. This plaintiff is asking for partition on a mere pretended title. The remedy of the plaintiff, if any, is by an action of ejectment. Sw. Dig., 108.
    2. The Ames Iron Company have become, and are, the absolute owners of the entire estate in the land by occupancy, and adverse possession of more than seventeen years.
    3. The writing, which was signed by Oliver Ames, at the instance of the heirs of Nathaniel Church, has reference to that part of the original privilege, occupied, without any pretended right, to which it is limited and confined.
   Storrs, J.

We do not consider it necessary to examine the question as to the title to the premises sought to be aparted, which has been raised before us, because we are of opinion that this bill should be dismissed, on the ground that, when it was brought, the plaintiff was not in possession óf said premises.

It was an established rule of the common law, by which the writ of partition would lie only between coparceners, that the plaintiff must be in possession, or seized, of the land when the writ was brought. Co. Lit., 167, a; and since the remedy by partition has been extended to joint tenants, and tenants in common, the same rule has been uniformly adopted, whether the remedy was sought by writ or bill in equity. 1 Sw. Dig., 103. Our statute, authorizing the superior court, as a court of equity, to order partition of real estate, held in joint tenancy, tenancy in common, or coparcenary, does not introduce any different rule on this subject.

The committee, in this case, find the following facts. In 1790, S. Forbes and N. Church became tenants in common, in fee, of the premises described in the bill. In 1836, Church died, having had, for many years before his death, the charge of said premises, and rented the house standing thereon, and cultivated and occupied the land; but there was no evidence to show -whether he had ever accounted to Forbes for his proportion of the rents and profits, or that he had ever claimed the sole title, or denied the title of Forbes to the premises. The whole of the premises was inventoried, and distributed, as the estate of Church, to his heirs ; and in 1837, after said distribution, Oliver Ames contracted, by parol, with the distributees, for the purchase thereof—under which contract, said Oliver immediately went into the possession and occupancy thereof, and he, and those claiming under him, including the Ames Iron Company, defendants in this suit, in whom all the title of Church has become vested by regular conveyances, have ever since remained in the sole and uninterrupted possession of the premises, the purchasers and grantees thereof having always claimed the sole title, and denied the right of all others thereto, unless the agreement of July 23, 1844, to which we shall hereafter advert, constituted an admission of the same. In July, 1844, the heirs of Forbes never having, since his death, which occurred in 1827, occupied or made any claim to the premises, and the plaintiff) having no knowledge that the title of said heirs to an undivided part thereof was ever questioned, or denied, by any person, the said Oliver Ames commenced the erection of a dwelling-house on the premises, when the plaintiff, one of those heirs, notified him that he, and the other heirs of - Forbes, had a right and title thereto, and requested him to acknowledge that right, or to pay them some rent, if it was but a pepper-corn, which the said Oliver refused to do, claiming that he had bought the land of the heirs of Church, who claimed to be the owners of it, and that by purchase, he, the said Oliver, had acquired the title; which was the first actual notice he had received of any claim to the premises by the heirs of Forbes, or the plaintiff.

With respect to the agreement of July 23,1844, we do not think that it changed the character of the possession of Oliver Ames, or constituted any admission by him of a title in the heirs of Forbes. Its only object was, to provide that, if there should be an adjudication that the heirs of Forbes and Church owned the land as tenants in common, the said Oliver, who claimed under some of the heirs of Church, should not lose his house placed on it, but that the land, on which it stood, should, on a partition, be set to him.

Whatever may have been the character of the possession of the premises, prior to July, 1844, when the heirs of Forbes requested Oliver Ames to recognize their title, it is clear that, since that time, there has been a constant actual ouster of those heirs by the said Oliver, and the Ames Iron Company claiming under him, who have, from thence to the present time, been in the open, exclusive, uninterrupted, and adverse possession of the premises, expressly claiming the sole title in themselves, and denying the title of said heirs. We concur fully with the authorities which determine that, from the peculiar and intimate connection existing between tenants in common of real estate, the proof of an ouster, by one of another of them, ought to be of the most satisfactory nature; but in this case, if the fact of such ouster is not positively found by the committee, the evidence of it is strong enough to satisfy the strictest requirements, on a question of this kind.

As, therefore, the plaintiff was not in possession of the premises when this bill was brought, it should be dismissed, and the superior court is so advised.

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

Bill dismissed.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Chapin vs. The State.
    The statute, relating to the criminal jurisdiction of county courts, (Rev. Stat., tit. 6, ch. xi., act of 1854, § 1,) prohibits an appeal from the county to the superior court, of a complaint, founded upon the “ act to prevent and remove nuisances from highways, rivers, and water courses,” for the erection of a nuisance in a public highway, although the title to land was in question on the trial of such complaint.
    On the trial of a question of dedication of land for a public highway, the acts and declarations of the owner when, and before, and after he opened the highway, are admissible to show the fact of the dedication, and his intention in opening the same.
    The acts and declarations of such owner, after such dedication was complete, can not have the effect of revoking, or invalidating it.
    This was a grandjuror’s complaint against Herman Chapin, for a nuisance, in erecting a post and board fence across a public highway, in the town of New Hartford.
    The complaint was founded upon the statute, entitled, “An act to prevent and remove nuisances, from highways, rivers and water-courses,” and was originally brought before a justice of the peace.
    After a trial upon the plea of not guilty, the defendant was found guilty, and ordered to pay a fine of four dollars and costs. He thereupon appealed to the county court, where, upon a trial by the jury, the title to the land over which the pretended highway, in the information mentioned, passes, and the right of way was a material question; and the jury having rendered a verdict against the defendant, he moved an appeal to the next superior court for said county, and offered to become bound, in good and sufficient surety, to the acceptance of said county court, in such sum as said county court might order and require, conditioned for the due prosecution of said appeal; but said court decided ágainst said motion, and denied the defendant the right of appeal.
    Upon the trial, the prosecutor claimed that said pretended way was, as such, dedicated by the defendant to the public use, and, to prove said dedication, and to characterize the intention of the defendant in opening said road, the prosecutor, in reference thereto, offered evidence of the defendant’s acts and declarations, done and made before, at the time, and subsequent to his opening said pretended way across said land, to which evidence the defendant objected, but the court admitted the same.
    The defendant, to repel said pretended claim of dedication by him, and to show that, in opening said way as aforesaid, he did not intend to appropriate his land as public ways, offered to prove on said trial, other acts and declarations of his, on different times and occasions, and subsequent to the time when said way was opened by him, to which evidence the prosecutor objected, but the court admitted the same, and instructed the jury that, if they should find the fact of a dedication of said way as claimed by the prosecutor, then said dedication could not be revoked by the subsequent acts and declarations of the defendant, and that then such subsequent acts and declarations were not admissible.
    Tt was further proved, and admitted, that said pretended highway was situated in the town of New Hartford, and passed mainly over the land of the defendant, and that sundry lots were bounded on said way, and houses public and private were erected thereon and in use, and that on, and in the vicinity of, said way, the defendant had valuable meadow-lands, which way furnished the defendant access to said lands, and the defendant claimed that said way was opened by him, for his own accommodation, to pass to and from his lands, and requested the court, to instruct the jury, that, if they should so find, their verdict should be for the defendant; but the court did not so instruct the jury, but the court did instruct them that if they should find, from the evidence in the case, that the sole object the defendant had in view, in opening said way, was his own accommodation and not with a view to a dedication of the same to the public, then their verdict should be for the defendant.

      The jury returned a verdict of guilty, which the court accepted, and judgment was rendered against the defendant. To reverse that judgment, the defendant then brought the present writ of error to the superior court, and was then reserved for the advice of this court.

      Hitchcock and Johnson, for the plaintiff in error,
    contended that the denial of the appeal was erroneous.
    The title to land was a material question, and the statute, upon which the information in question was founded, secures the right of appeal to the defendant. Rev. Stat., 697. This right is not taken away by the act, defining arid altering the jurisdiction of the superior court, Rev. Stat., 346; because that act does not apply to, and therefore does not repeal, that part of the statute, upon which the prosecution in question is founded, which gives the defendant the right of appeal.
    A violation of the first section of the act “ to prevent and remove nuisances from highways,” does not constitute an offence, and a crime, within the meaning of the act of 1854.
    The prosecution in question is civil in its substance, (being the removal of obstructions to highways ;) civil in its results, no corporeal punishment being inflicted as a penalty; and is criminal in its form of proceeding only.
    II. The court erred in instructing the jury that, if they should find a dedication of said way, as claimed, this could not be revoked by the subsequent acts and declarations of the defendant, and that then such subsequent acts and declarations were not admissible in evidence.
    To constitute a highway by dedication, there must be a dedication to the public use, and an acceptance on the part of the public. 19 Conn. R., 155,169, 267,268. 6 Pet., 431.
    If the defendant had dedicated his land for the purposes of a highway, he could revoke such act of dedication, before, there had been an acceptance on the part of the public. And if so, he might show such revocation, by his acts and deelarations, made subsequent to the dedication, and before there had been an acceptance on the part of the public.

      Hall, (state’s attorney,) and Foster, for the defendant in error.
    I. The proceeding is criminal, and the plaintiff in error had no statutory right to appeal to the superior court. The proceeding falls within the letter of the act. “ The county court shall have sole cognizance and jurisdiction of all offences and crimes, &c., and of all appeals from justices of the peace.” Rev. Stat., p. 346.
    It is equally within the spirit of the act to relieve the superior court from a trial of criminal proceedings, wholly, by devolving the same upon the county court solely. This was the intent of the legislature in the enactment of this act.
    II. Acts and declarations, before, at the time, and subsequent to, the opening of a highway, may, or may not, be the natural, proper, and indeed, the only indices of an intention to dedicate it to the public. 1. This bill of exceptions, in its omission to specify the nature of the acts excépted to, is fatally at fault. Such acts may, or may not, if the court could see from the record what they are, have been pertinent to the issue. But the bill being silent in reference to the nature of this evidence, the propriety of its admission by the court, on the trial below, is a legal presumption. The party claiming that an error had intervened, if he would obtain redress, should show in what the wrong consists. 2. In regard to the rebutting proof, offered by the plaintiff, the same want of particularity, as to its nature, exists, and the same presumption will hold. At any rate, the decision on this point was in his favor, and he has no grounds therefore, of complaint.
   Hinman, J.

This was a prosecution against the defendant, for the erection of a nuisance in a highway ; and the defendant, by the statute, in relation to nuisances in highways, rivers and water-courses, as it existed previously to 1854, had a right to appeal from the county to the superior court, if, on the trial, the title to land should come in question. The title to land was in question, in this case, and the defendant, by the former statute, had the right to appeal. But, by the act of 1854, Rev. Stat., ed. 1854, 346, § 1, it was provided, that the county courts should have sole cognizance and jurisdiction, of all crimes, then by law within the jurisdiction of either the superior, or county courts, and of all appeals from justices of the peace. This took away the right of appeal, and the county court was correct, in so deciding.

It is too plain to require discussion, or authorities, that the acts and declarations of the defendant, at the time when, as well as before, and after, he opened the road which the prosecutor claimed to have proved, had been dedicated, by the defendant, to the use of the public, were admissible to show both the fact of the dedication, and the defendant’s intention in opening the road ; and also, that his acts and declarations, subsequently to the time when such dedication was complete, could not have the effect of revoking, or invalidating it. The county court properly qualified the claim of the defendant, as to the intention with which the way in question was opened by him, in requiring it to appear that his sole object, in opening it, was his own accommodation merely, and not the dedication of it to the use of the public.

There is, therefore, no error in the judgment complained of, and so we advise.

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

Judgment affirmed.


author: Waite, C. J.

text:
    Bissell vs. Bissell and others.
    A testator devised certain lands to B, his son, and one of the executors of his will, on condition that “ B shall pay to the other heirs, in money, the surplus of the appraised value of said land, if the same shall be worth more than one sixth of my estate; and I give him five years from and after my decease, to raise, and pay over, said surplus, during which time he is to have the use and improvement of the said land, and if at the termination of the said five years, he shall have failed to pay over the same with the lawful interest, then he is to have his divisional share of one sixth part of my estate.” Soon after the death of the testator, B took possession of the real estate devised to him, and the value thereof being greater than his share of the estate, the surplus was, by distribution, before the expiration of said five years, set to the other children of the testator. B afterward erected buildings on said land, and mortgaged a portion of the same to C, who obtained a decree of foreclosure against him. Judgmentwas also obtained upon B’s bond as executor, which was in part satisfied by the levy of an execution upon said land, subject to said mortgage to C, and the interest thereby acquired was transferred to the parties interested in the estate under the will. No part of the amount required of B, by the will, was paid by him, and no entry was made upon said land, for condition broken. Upon a bill in equity, brought after the expiration of said five years, by the other executor, who was a son of the testator, praying that said distribution might be set aside, so far as related to the conditional devise to B, and that said lands might be divided among the parties entitled thereto, and for other relief, to which 0 filed a cross bill, praying that there might be paid to him the value of the improvements made by B, or, in case a partition should be ordered, that the sixth part of the estate devised to B, might be set to him; it was held, 1. That such distribution, being entirely within the jurisdiction of the probate court, could be set aside, only upon an appeal to the superior court. 2. That the excess of the value of the land devised to B, over his share of the estate of the testator, remained a charge upon said land, to which the mortgage to 0, and the interest in said land, taken on execution, were subject. 3. That, notwithstanding B’s neglect to pay the sum required of him within the time limited in said will, C, and those who took B’s interest, on said execution, were entitled to redeem, on payment of said charges; but on their failure to do this within a reasonable time, such right should be foreclosed; and in case they should elect to redeem, they should contribute in proportion to their respective interests in the property.
    This cause came on for a hearing upon the bill of the plaintiff and the cross bill of Abel H. Clemons, one of the defendants, before the superior court for Litchfield county, at the August term, 1855, when the court found the facts in the case, and reserved it for the advice of this court.
    The material facts, thus found, are the following.
    Benjamin Bissell, the elder, died in April, 1849, leaving a widow and six children, and a large real and personal estate. By his will, he devised certain lands to his son Benjamin, one of the defendants, with this provision annexed: “it being understood that he shall pay to the other heirs, in money, the surplus of the appraised value of said land, if the same shall be worth more than one sixth of my estate ; and I give him five years from and after my decease, to raise and pay over said surplus, during which time, he is to have the use and improvement of the said land; and if, at the termination of the said five years, he shall have failed to pay over the same, with the lawful interest, then he is to have his divisional share of one sixth part of my estate.”
    To his son Lawrence, he devised other lands, subject to the same conditions.
    After the execution of his will, he' purchased other lands, which, by a codicil, he devised to his son Benjamin and his heirs forever, “ upon the same terms, conditions and provisions,” named in that part of his ‘ will which related to Benjamin,’ adding, “ it being my intention, as named in' my. will, that he shall have but one sixth part of my estate, and that said land, and that devised to my son Lawrence, shall be appraised when the residue of my estate is appraised.”
    The plaintiff and Benjamin, Jun., were appointed executors of the will. Soon after the death of the testator, Benjamin and Lawrence took possession of the real estate, devised to them, respectively, and the former erected buildings, and made improvements and betterments upon his part, to the amount of two thousand dollars, and, in January, 1850, he mortgaged a portion of those lands to the defendant, Clemons, who obtained a decree of foreclosure against him, taking effect in November, 1851.
    The appraised value of the lands devised to Benjamin, was $3,720, and of those devised to Lawrence, $3,251. In July, 1850, a distribution was made of the testator’s estate among his six children, and the share of each was $1,886.14. The surplus, upon the lands devised to Benjamin and Lawrence, was distributed to the other four children of the testator, being $799.67 to each.
    In 1850, a suit was brought against the executors, upon their bond, for waste and devastation committed by them, and the judgment was. in part satisfied, by the levy of an execution upon the lands devised to Benjamin, subject to his mortgage to Clemons, and the interest thereby acquired was transferred, by the judge of probate, to the parties interested in the estate.
    It was understood that Lawrence had paid the amount required of him by the will, but Benjamin had paid nothing, and no entry had been made upon his land for the condition broken.
    The prayer of the plaintiff’s bill was, that the distribution might be annulled, and vacated, so far as it related to the lands conditionally devised; that the same might be divided and aparted among the parties entitled to the same, or that other relief might be granted.
    The object of the cross bill of Clemons was, to obtain a decree, that the amount of the improvements made by Benjamin, might be paid over to him, or in case a partition should be ordered, that the sixth part, devised to Benjamin, might be set to him, or other proper relief to him granted.
    Phelps, and Hollister, and Bemcm, for the plaintiff.
    1. The payment, by Benjamin, of the money mentioned in the will, is a condition precedent to the vesting of the title to the land, devised to him. It was not the intention of the testator to pass the title, and trust him to pay the other devisees their proportions. No forfeiture is suggested; and no condition requiring an entry.
    2. The distribution is premature and void, the court of probate having no jurisdiction when the distribution was made, because the proportions of the devisees could not be ascertained.
    The distribution treats the difference between one sixth, and the appraised value of the land; as a debt against Benjamin and Lawrence respectively, whereas they had- a mere right of preemption, optional with them to confirm, or reject, in five years. The amount of the interest of the other devisees depended on the amount Benjamin should have.
    3.. If the court of probate had a right to make a distribution, that, which was made, was void, because, 1. The debt due from Benjamin to the testator, should have been set to Benjamin, toward his share, $622.80. 2. The devastavit, made by Benjamin, should have been set out as a part of his one sixth.
    4. The remedy is not in the probate court. That tribunal has exhausted its power, and can not reverse or reform its own decrees.
    5. Chancery can relieve against a judgment at law, improperly obtained, or for supervenient causes, by enjoining the party against the use of the judgment. 2 Sw. Dig., 137. Mitford’s PL, 131. 6 John. C. C., 479. 19 Conn. R., 85. 20 Conn. R., 540.
    6. If the distribution does not bind the parties, they are tenants in common ; they have title ; the change in the estate malíes it a question of proportions; and chancery is the proper forum to settle proportions and make partition.
    7. Clemons is the mortgagee of Benjamin, by deed of 9th of January, 1850, when Benjamin owned one sixth part only; Clemons could have no greater interest than his grantor had. The foreclosure did not enlarge the estate; this one sixth was subject to the diminution by the debt and devastavit of Benjamin.
    8. In mortgages, the debt is the principal object; if the mortgagee can get his money and interest, it is all he can ask. The case finds betterments were made on the twenty-seven acres by Benjamin, to the amount of $2,000, in the erection of a house. After deducting the debt and devastavit, a partition can be made of the land where the house stands, and make adequate security to Clemons.
    9. Since the non-payment, the parties to the bill are tenants in common in unequal proportions. By a commission, chancery can settle the proportions of each, and make partition, giving Clemons enough of the tract conveyed to him to hold the betterments.

      Todd and Graves, for the defendants.
    1. The plaintiff, not being interested in the devastavit of Benjamin, or the property taken on execution, or any matters concerning the personal estate of the testator, is not entitled to relief. And if he were, all the interest of Benjamin in the real estate having been taken and set off on execution, it can not be granted out of the land devised to the latter,
    2. All matters, pertaining to the settlement of the estate, are within the sole jurisdiction of the probate court, and can be set aside by the superior court only on appeal. Pitkin v. Pitkin, 7 Conn. R., 315, Bailey v. Strong, 8 Conn. R., 278. Beach v. Norton, 9 Conn. R., 182. Cowles v. Whitmore, 10 Conn. R., 121. Gates v. Treat, 17 Conn. R., 388.
    3. Benjamin and Lawrence took a freehold estate, by the devise to them. But although the same has been defeated by a breach of the condition in the will, an actual entry, and demand of seizin and possession, for the condition broken, must be made to revest the estate. 1 Sw. Big., 93. Chalker v. Chalker, 1 Conn. R., 79. Bowen v. Bowen, 18 Conn. R., 535.
    A court of chancery will not make partition, until such entry is made, and possession obtained. 1 Sw. Dig., 103. 2 Sw. Dig., 435. 1 Sto. Eq., 605. Wilkin v. Wilkin, 1 Johns. Ch. R., 117. Phelps v. Green, 3 Johns. Ch. R., 305. Coxe v. Smith, 4 Johns. Ch. R., 271-276.
    4. Clemons, being the legal owner of all Benjamin’s interest in the twenty-six acres, and improvements, is entitled to all the rights of the latter, and the court will direct the value of the improvements to be paid to him before partition is made. 1. Sto. Eq., 608, 609. Swan v. Swan, 8 Price, 518. And will also direct, that Benjamin’s portion be so set off as to include the land mortgaged to, and now owned by Clemons, or so much of the same as will amount to his share of the estate.
    5. The plaintiff has a full and adequate remedy at law, and in the probate court.
    6. The indebtedness of Benjamin was considered by the probate court, as assets in the hands of the executors, and was property distributed to the heirs as cash. Bailey v. Bailey, 8 Conn. R., 278. Davenport v. Richards, 16 Conn. R., 310.
   Waite, C. J.

The application to the superior court, as a court of chancery, to set aside the distribution, in this case, can not be sustained. The subject was a matter entirely within the jurisdiction of the court of probate, and its decrees must stand, until set aside by an appeal to the superior court.

But were the case before us, upon an appeal, regularly taken, we see no ground for interfering with the doings of that court. The division made by the distributors, under the circumstances then existing, seems to us as judicious as any that could have been made.

By the terms of the will, the testator’s two sons, Benjamin and Lawrence, were to have the lands devised to them, at all events, for the period of five years from his decease. During that period, no other distribution could legally be made, than one, giving them these lands.

And we see no reason for delaying a distribution until after the expiration of that period. There was personal property, which the children might want, and which could not well be apportioned among them, without a distribution.

Under these circumstances, the distributors set to Benjamin and Lawrence the lands, devised to them respectively, and having determined how much, by the terms of the will, they were required to pay to the other children of the testator, distributed to them each an equal share of the amount. This placed the four children upon an equal footing.

But the five years have now expired, and, although it is understood that Lawrence has paid the surplus due from him, yet it is found that Benjamin has paid nothing. The question now is, in what manner the four children of the testator, to whom the balance, due from Benjamin, has been distributed, shall obtain satisfaction for their claims.

Benjamin, by neglecting to pay them, was not to forfeit all his interest in his father’s estate, but was nevertheless to have his full share. All the estate of the testator, with the exception of the lands conditionally devised to him, has been distributed to the other children, and so long as that distribution stands, their title under it remains.

It/ollows, therefore, that the lands conditionally devised to him, must be applied in satisfaction of his share, and of the claims of those to whom he was to make payment, there being no other estate of the testator applicable to such purpose. And, according to the valuation in the distribution, they were equal to that claim when the distribution was made.

Were nothing more required in the case, than a simple division of those lands among the children of the testator, in proportion to their respective interests therein, perhaps adequate remedy might be had in the court of probate, by a further order of distribution; but there are other difficulties, requiring the aid of a court of equity.

Although Benjamin neglected to pay the sum required, within the time limited in the will, yet, as satisfaction may be made, to those entitled to it, by paying the principal and interest, he may still apply to a court of equity, for liberty to redeem the lands, upon paying all that may be due to them.

His creditors, who have taken his interest in those lands, now stand in the same situation. In order therefore to give those persons entitled to the money, a perfect title to the lands, in case a portion should be distributed to them, it is necessary that those creditors should be required to redeem within a reasonable time, and upon their failure to do so, that they be foreclosed of all right to redeem.

Again, Clemons, by his mortgage, and the decree of foreclosure, took only a portion of those lands, and the judge of probate, by the levy of his execution, another portion. Neither has any greater interest therein than Benjamin, the son, had, and both must be considered as having taken, subject to the terms prescribed in the will of the testator. In order to enable them to retain the whole of their respective portions, they must pay the amount which Benjamin was required to pay. If they refuse to do that, they can hold no greater interest than he would have had, provided no portion of that interest had been taken from him.

In case they elect to redeem the four heirs of the testator, to whom the surplus was distributed, they ought to pay in proportion to the interests they respectively have in the property. And if they refuse to redeem, and a sale is ordered, or a partition is made, the division ought to be made upon the same principle.

We advise the superior court, to pass a decree in conformity with these principles.

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

Decree accordingly.


author: Sanford, J. Hinman, J.,

text:
    Crocker vs. The New London, Willimantic and Palmer Railroad Company.
    A railroad corporation established, and gave public notice of, a regulation that the fare in their cars from N. to N. L., would be fifty cents, if it was paid, and a ticket procured by the passenger, before entering their cars ; otherwise it would be fifty-five cents; and A, without a ticket, took a seat in one of their oars at N., and, when called upon by the conductor, after the cars had left for N. L., offered to pay fifty cents for his passage from N. to N. L., and refused to pay any more; whereupon the conductor, with the aid of persons in the employment of the defendants, forcibly removed him from the car. Upon the trial of an action of trespass, brought to recover damages for the injury sustained by A, in such removal, he claimed to have proved that he went to the defendant’s office, where their tickets were usually sold, at a reasonable time before the train left for N. L., to procure a ticket; that said office was closed, and there was no one of whom a ticket could be procured, then or afterward, until after the departure of the cars, and that he informed the conductor of-these facts at the time his fare was demanded; and it was admitted that said regulation of the defendants was a reasonable and legal one. Held, I. That, as common carriers, the defendants were under no legal obligation to furnish tickets, or to carry passengers from N. to N. L., for less than fifty-five cents each. 2. That the plaintiff’s claim to such a passage for fifty cents, rested entirely on the assumed engagement of the defendants to furnish tickets, and the plaintiff’s endeavor to procure one, defeated by the defendants. 3. That said regulation of the defendants was not a contract, creating a legal debt, or duty, but a mere proposal, which might be suspended, or withdrawn, at pleasure. 4. That such proposal was withdrawn by closing the defendant’s office, and the retirement of their agent therefrom. 5. That, the proposition being withdrawn, the parties were in the same condition as before it was made; the defendants, continuing common carriers, were bound to carry the plaintiff for fifty-five cents, but not otherwise. 6. That the plaintiff refusing said sum, the conductor had a right to remove him from the cars, using no unnecessary force for that purpose, and that, for such removal, the defendants were not liable in an action of trespass. Two judges dissenting.
    Where, in such action, the court instructed the jury that, if the plaintiff was wrongfully removed from said car, he had a right to re-enter it, and if in his endeavor to do so, he received the injury complained of, he was entitled to recover, unless there was, on his part, a want of reasonable care, which produced, or essentially contributed to produce, such injury; but if such removal was lawful, or if, in his attempting to re-enter it, there was, on the part of the plaintiff, a want of reasonable care or prudence, which produced or contributed to produce, such injury, he was not entitled to recover; it was held, that such instruction was correct. Two judges dissenting.

      Where, on such trial, the plaintiff claimed that, for the purpose of removing and keeping him off from said car, the conductor called to his assistance, servants of the defendants, and in the effort to remove him, a struggle ensued, before the termination of which, one of said servants intentionally kicked him in the face, and the defendants claimed that such kick, if given, was without the knowledge, and without any particular, or express, direction of the conductor, or any other agent of the corporation, and the court charged the jury, that, upon the- facts as claimed by the plaintiff, the defendants were liable in that action; it was held, that this was a misdirection. Two judges dissenting.
    This was an action of trespass, vi et armis, brought by John H. Crocker against the New London, Willimantic, and Palmer Railroad Company, to recover damages for personal injuries, occasioned by his forcible removal from the defendants’ railroad cars. •
    The defendants pleaded not guilty; and, on this' issue, the cause was tried at Norwich, at the term of the superior court, holden in December, 1854.
    It was admitted, on the trial, that on the day of December, 1853, after the defendants’ cars had started from Norwich for New London, and while on their way to the latter place, the plaintiff, who had taken his seat in one of them, at Norwich for New London, was called on by the conductor of the train for his ticket, showing that he had paid his passage. The plaintiff had not, and did not produce, any ticket, and thereupon the conductor required him to pay fifty-five cents for his said passage. This sum the plaintiff refused to pay, but he offered to pay, and tendered fifty cents therefor, which the conductor refused to receive. And on the plaintiff’s refusal as aforesaid, the conductor caused him to be forcibly removed from the rear end of the car, and put on the ground’.
    The question* arose, as to the right of the defendants to remove the plaintiff from said car; the plaintiff claiming that the defendants had no such right, and were therefore liable for the personal force, and injury, inflicted on him in such removal and ejection, and the defendants claiming said right. It was admitted that the defendants had previously established, and given public notice of, a rule, or regulation, that the fare for passengers in their cars, from Norwich to New London, should be fifty cents, if it was paid and a ticket procured by the passenger before entering the cars, but that if no such ticket was so paid for, and procured, before entering the cars, the fare should be fifty-five cents; and it was claimed by the defendants, and admitted by the plaintiff, on *the trial, that said rule, or regulation, was a reasonable and lawful one. The plaintiff offered evidence to prove, and claimed to have proved, that on said day, and within a reasonable time before the leaving of said train of cars, for New London, he having the sum of fifty cents in his possession, went to the office of the defendants, at their station in Norwich, where passenger tickets were usually sold by the defendants, for the purpose of paying for and procuring of the tickftt-master, or agent of the defendants, whose business it was to sell passenger tickets, a ticket for his passage from Norwich to New London, and was ready and prepared, to ■ pay the sum of fifty cents for such ticket; but that neither said ticket-master or agent, nor- any other person, was there to sell, or furnish, said ticket, but that said office was closed ; that no person, authorized to sell such tickets, was at said • office thereafter, before said cars left the station for New London; that the plaintiff therefore could not procure a ticket for a passage therefrom to New London, before the train left said station; and that thereupon, immediately before said, train left said station, he entered and took a seat in said car, intending to go to New London. When said train had proceeded from Norwich about the distance of miles, and the plaintiff was called on as aforesaid, for a ticket, he stated to the conductor, that he had no ticket, and also stated the reason why he had not any, and the facts aforesaid, in relation to his effort to procure one, and his inability to do so ; whereupon the conductor demanded that the plaintiff should pay fifty-five cents for his passage from Norwich to New London; the plaintiff refused to, and did not pay, said fifty-five cents, but tendered fifty cents, and requested the conductor to receive the same for his passage, which the conductor refused to, and did not do, but on the plaintiff persisting in his refusal to pay more than fifty cents, the conductor caused the train to be stopped, and'with the assistance of several persons employed by the defendants in conducting the train, forcibly removed and ejected the plaintiff', against his will and remonstrance, out of the rear end of the car in which he was, and put him on the ground.
    The defendants denied that the plaintiff applied at said ticket-office for a ticket, within a reasonable time, before said train left Norwich, or that the plaintiff, when called on by the conductor for a ticket, gave the information, or made the statement, as claimed to be proved as aforesaid. And the plaintiff claimed, and requested the court to instruct the jury, that if they should find the facts to be as claimed to be proved by him, he had a right to retain his seat, and the defendants had no right forcibly to remove and eject him from said car, and that they were liable to the plaintiff for the personal injury occasioned thereby; and the court charged the jury in accordance with this request.
    The plaintiff, in addition to other personal injuries to him, offered evidence to prove, and claimed to have proved, that • when he was ejected from said car, he was thrown upon the ground with such force, and'in such a manner, that his knee-pan was broken, for which injury he also claimed to recover, and also claimed to have proved, that, if he did not so receive said injury to his kneepan, at the time when he was ejected from said car, said train of cars was again put in motion by the defendants, immediately after the plaintiff’ was so ejected, and that immediately before he received said injury to his kneepan, for the purpose of again entering said car, he took hold of the car at the rear end thereof, with one or both of his hands, and followed it while it was in motion, and attempted to enter it, and that the motion of said car, which was constantly increasing in its velocity, became so fast, that the plaintiff was unable to keep up with it, and was obliged to quit his hold thereof, and that when he so quit his hold, he, by the motion of the car, was detached therefrom, and thrown upon the ground, and that, in so falling, his knee struck upon the ground, or on some substance lying thereon, whereby his kneepan was broken; and that, in what the plaintiff so did, after he was so removed from said car, there was not, on his part, any want of reasonable care, or prudence, which produced, or contributed essentially to produce, said injury to his kneepan. And the plaintiff claimed and requested the court to instruct the jury, that if his kneepan was not so injured, at the time when he was so removed from said car, but was injured afterward, and after said train again started, and the facts were, as claimed by the plaintiff to have been proved by him, he was entitled to recover for said injury, provided the defendants had no right to remove and eject the plaintiff from said car, and the plaintiff had a right to remain therein, when he was removed theréfrom. The defendants insisted that the injury to the plaintiff was not received when he was so removed, but afterward, and they claimed to have proved that when said injury was received, there was, on the part of the plaintiff, a want of reasonable care and prudence, which produced, or contributed essentially to produce, the injury, and claimed that such want of reasonable care and prudence precluded him from recovering for said injury, and that the court should so charge the jury. The court, on this subject, charged the jury, that if they should find, on the principles before stated to them, in relation to the right of the defendants to remove the plaintiff from said car, that he had, when so removed, a right to remain in said car, and that the defendants had no right to remove him therefrom, he had a right to re-enter said car, after having been so removed therefrom, and that the injury to his knee was received, not at the time when he was so removed, but afterward, and after said train was again put in motion by the defendants, and that the facts, occurring after said train was again put in motion, and until, and when said injury was received, took place, and were as they were claimed to be proved by the plaintiff, and said injury occurred after said train was again put in motion, in the manner claimed by the plaintiff to have been proved by him, and there was not any want of reasonable care or prudence on the part of the plaintiff, which produced, or contributed essentially to produce, said injury, the plaintiff was entitled to recover for said injury; but that, if they should find that the defendants had a right to remove, or eject, the plaintiff from said car at the time they did so, or that there was, on the part of the plaintiff, a want of reasonable care, or prudence, which produced, or contributed essentially to produce, said injury to. his knee, he was not entitled to recover for said injury.
    The plaintiff offered evidence to prove, and claimed to have proved, that while said persons, in the employment of the defendants, were removing him from the car, there was a. struggle between them and the plaintiff, in which the plaintiff endeavored to prevent said persons from removing, or keeping him from, or out of, said car; that a part of the injuries which he received, when he was so removed, were occasioned by a kick, or blow on his face, given with the foot intentionally by one of said persons in the employment of the defendants, who assisted the conductor in removing the plaintiff, after he had become detached from said car, and immediately on the plaintiff coming off from the car to the ground, the person giving said kick while standing on the car, at the rear end thereof, and the plaintiff being on the ground, when said'kick was given; the struggle not having terminated at that time. And the. plaintiff claimed, and requested the court, to instruct the jury, that the defendants were liable for the injury received by said kick. The defendants offered evidence to prove, and claimed to have proved, that said kick or blow, if given to the plaintiff at all, which the defendants denied, was given without the knowledge, or any particular or express direction of the conductor, or any officer or agent of the defendants, and requested the court to instruct the jury, that if it was given without any such knowledge or direction, the defendants were not liable for said injury. The court, on this point, omitted to charge the jury, as requested by the defendants, but charged them, as requested by the plaintiff.
    The jury returned a verdict, for the plaintiff, to recover of the defendants six thousand and five hundred dollars damages, and costs.
    The defendants moved for a new trial, on the ground that the charge was erroneous, and also that the damages were excessive.
    The disposal of the case by this court, renders unnecessary a detail of the evidence, which was embraced in the latter motion.

      Foster and Lippitt, in support of the motion.
    I. Railroad corporations are common carriers, and as such, as a general rule, are bound to take such persons as apply for a passage. Angelí on Carriers, § § 524,525.
    II. The prima facie duty of such corporations to receive passengers, who apply for a conveyance, is subject to' the qualifications, 1. That the persons, applying, shall be fit persons. 2. That they conform to the rules, and regulations, of the carrier, established for his own benefit. For railroad corporations may establish such rules and regulations, “ as are suitable to enable them to perform the duties they undertake, and to secure them in their just rights in such employment.” Commonwealth v. Powers, 7 Met., 596.
    Rules, which might not be necessary at the termini of a road, may be essential at a way station. The rule, requiring the ticket agent to attend to freight also, is essential, to enable this company to perform the duties they have undertaken.
    III. As the carrier is bound to receive and carry passengers, as a general rale, so he is also entitled to be sure of his reward and compensation. Angelí on Carriers, § 609.
    The right to establish fares, includes and carries with it the right to regulate the time, place, and manner, of receiving them, and the person to whom payment shall be made. In this case, the time was present payment, the place was in the cars, and the person was the conductor. The tariff of fare, was fifty-five cents, between Norwich and New London. The rale of the company required the passenger to pay the cash-fare to the conductor, or to tender him a receipt for payment, or in other words, a ticket. A ticket was the only evidence to be recognized as payment. The conductor was not required to know the price of a ticket. The ticket system, was established for the convenience of the company, and the passenger, to facilitate and render certain the collection of fares. A ticket is considered the sole voucher for the payment of fare. Angelí on Carriers, § 609. Cheney v. Boston and Maine Railroad Company, 1 Met., 121. Angell on Carriers, § 530, Note.

    IV. If the rules established by the defendants were reasonable, they had a right to enforce them ; for common carriers may rigidly enforce all reasonable rules, established for the promotion of their pecuniary interests. Commonwealth v. Powers, 7 Met., 596. Jenks v. Coleman, 2 Sum., 221.
    V. The plaintiff had not the same rights as he would have had with a ticket. For if he had, the conductor would violate the rule which prescribed that he should collect the cash fare.
    Whether he may, or may not, insist on the rule, is made, by the charge of the court, to turn on the question, whether he applied within reasonable time. It is impossible for the conductor to determine this, for it must depend on circumstances. The charge deprives the defendants of the benefits of the rule, as such, and reduces it to a topic for debate.
    The regulation of the. company not only proposed to sell tickets at reduced rates, but required the conductor to demand cash fare of those who did not tender a ticket. The plaintiff only offered to comply with a part of the rule. If the rule existed, and was reasonable, the company might enforce it. The plaintiff’s only remedy was by an action for refusing to sell him a ticket.
    VI. In attempting to get upon the car, when it was in motion, the plaintiff was guilty of carelessness.
    VII. The defendants are not liable for the wanton injury done by their servants, without their knowledge or direction. The kicking, if done at all, was not authorized, but was done after removal from the cars.

      Wait, and E. Perkins, against the motion.
    1. The defendants were bound, by their notice, to furnish tickets to all applicants, and this contract required that they should furnish all reasonable facilities to enable parties to obtain tickets. If the plaintiff applied for a ticket at the office, under this notice, at a reasonable time, but could not obtain one, and stated these facts to the conductor, he did all that he could be required to do, under the notice, and his payment of fifty cents, or tender of that sum, imposed on the company the legal obligation, to carry him from Norwich to New London. Whether the plaintiff, in fact, applied at the office for a ticket, or applied within a reasonable time, and whether he paid or tendered the fifty cents, and the agent of the company, in charge of the train, had knowledge of these facts, were questions of fact to be determined by the jury.
    2. If the plaintiff had originally a right to remain in the car, and the defendants had no right to eject him, he then had a right, when ejected, again to enter the ear, and even^ if, as the defendants claimed, his knee was not injured, when he was first ejected from the car, but was injured afterward, and after the train was again in motion, and while he was attempting to re-enter the car, unless there was, on his part, a- want of reasonable care, and prudence, which contributed essentially to produce such injury, he was entitled to recover. Whether the plaintiff exercised ordinary care and prudence, when attempting to re-enter the car, was not a question of law for the court to decide, but a question of fact for the jury to determine, from all the circumstances of the case. Birge v. Gardner, 19 Conn. R., 507. Beers v. H. Railroad Company, 19 Conn. R., ,566. Park v. O’Brien, 23 Conn. R., 339.
    3. The principle is well settled, that the master is answerable for the acts of the servant, done in the course of the servant’s ordinary employment, and that an action of trespass will lie against the master for the tortious acts of the servant, if done in the course of such ordinary employment, although the servant’s act was not necessary to the proper performance of his duty to his employer, or was contrary to his employer’s orders. Goodloe v. The City of Cincinnati, 4 Ham., 500. Croft, &c., v. Alison, 6 E. C. L. R., 528. Joel v. Morison, 25 E. C. L. R., 511.
    If a man, employed to force the plaintiff from the cars, or to prevent his re-entering them, in the course of such employment, kicked him, the defendants are liable, even if this was done without their knowledge, and against their directions. Hall v. The Connecticut River Steamboat Company, 13 Conn. R., 319.
    4. To justify a court in setting aside a verdict for excessive damages, they must be so palpably excessive, as to show conclusively that the minds of the jury were not open to reason, and conviction, or that an improper influence was brought to bear on their deliberations.
    The rule, to this extent, has been repeatedly sanctioned by the supreme court of this state. Woodruff v. Richardson, 20 Conn. R., 238. Clark v. Wheeler, 19 Conn. R., 319. Coffin v. Coffin, 4 Mass. R., 1. Clark v. Binney, 2 Pick., 113. Shute v. Bartlett, 7 Pick., 82-6. Moody v. Baker, 5 Conn. R., 351. Douglas v. Tousey, 2 Wend., 352. Southworth v. Stevens, 10 Johns., 443.
   Sanford, J.

The defendants were a railroad corporation, running regular trains of cars on their road between the cities of Norwich and New London, and transporting passengers in said cars, as a part of their business.

They had established, and given public notice of “ a rule or regulation,” that the fare for passengers, in their cars from Norwich to New London, should be fifty cents, if it was paid and a ticket procured by the passenger before taking his ..seat in the cars, otherwise it should be fifty-five cents.

The plaintiff took a seat in the car, without a ticket, and when called upon by the conductor of the train, offered to pay fifty cents for his passage to New London, but refused to pay any more. And upon the trial, he claimed to have proved that he went to the office of the company, where tickets were usually sold, at a reasonable time before the starting of the train, to procure a ticket, which he was ready to pay for; that he found the office closed, and that there was no person at the office of whom a ticket could be obtained, at that time, or afterward, until after the departure of the train, and that he informed the conductor of these facts at the time his fare was demanded. And the court charged the jury in substance, that, if the facts were as claimed by the plaintiff, he had a right to retain his seat; the conductor had no right forcibly to remove-him from the car, and the defendants were liable to the plaintiff for the personal injury to him, occasioned by such removal.

The first enquiry arises upon this part of the charge.

The defendants were common carriers of passengers, and as such, they were bound (except in certain peculiar cases, which need not here be specified) to carry all who applied for transportation, upon payment of their reasonable compensation; and they had the right to prescribe reasonable rules, and regulations, regarding the performance of their obligations and the collection of their dues. Angelí on Carriers, § 524, (2,) 530. 4 Esp., 260. ' 7 Met.; 596.

In this case, it was agreed on the trial, that the regulation of the company, regarding their fare as above-mentioned, was a reasonable and legal one. It was, probably, established for the protection of the company against the errors, and possible frauds, of the conductors of its trains, while, at the same time, it would facilitate the performance of the conductors’ duties.

It was notified to the public, in order -that passengers might be induced, and prepared, to conform to it. As a rule for the government of the conductor, it was imperative. It made it his duty to account, at the treasury of the company, for the fare of every passenger, by the delivery there, of a ticket, or of fifty-five cents in money. It gave him no discretionary power.

It is of no importance in this enquiry, whether the rule was wise or efficacious, for the purpose for which it was established, or not; it is enough, that it was reasonable and legal; one which the company had a right to make, and to enforce, and the only legitimate enquiry would seem to be, what was the' rule, and what its import and effect. The passenger’s right to his passage must depend, either upon the common law obligation of the carrier to carry all who apply, or upon some special contract of the carrier. The common law obligation attaches only upon the payment of, or readiness to pay, the carrier’s reasonable compensation, and compliance with the carrier’s reasonable regulations.

It is said that the admitted reasonableness of the regulation mentioned, is applicable to that regulation only as a whole, and not to its distinct alternatives, independent of each other. I think, that by fair construction of the motion, it appears that fifty-five cents, payable to the conductor in the car, was a reasonable price for the passage. It is agreed, that that sum was refused by the plaintiff; the common law obligation to carry the plaintiff, then, had not attached upon the defendants, and the plaintiff, under that obligation merely, had no right to retain his seat. But the plaintiff contends, that the defendants, having published this regulation, were bound to furnish tickets, and, for that purpose, to keep an office, and an agent in attendance at all reasonable times. It is obvious, that the law, independent of any special contract, imposed no such duties upon the defendants. Those duties, therefore, and their correlative rights and obligations, if they existed, originated in the rule, or regulation, and its promulgation, and were founded only upon the supposed special undertaking of the company expressed or implied, in that regulation. It becomes important, then, to ascertain the exact import of that regulation, and its effect in imposing upon the defendants a binding legal obligation.

That the meaning and import of the regulation were what the plaintiff claims, may be conceded ; but did it, like a valid contract, impose upon the defendants a legal obligation, from which they could not recede at pleasure? Was the rule thus promulgated, and thus construed, a contract ?

I think it was in the nature of a mercantile advertisement, rather than a contract; proffered on one side,to be closed by a mere acceptance on the other. Such advertisements, it is believed, are now considered, or treated, as proposed contracts, to the performance of which, the advertisers may be held by a mere acceptance, without further negotiation. For example, could a merchant advertising goods for sale, at a price specified, be subjected, in an action at law, if he should raise the price, or withdraw the goods altogether from the market?

But suppose that published rule was a proffered contract, which might be closed by a mere acceptance; like all other proposals, until accepted, it might be withdrawn at pleasure.

It has been already remarked, that the defendants’ obligation to furnish a ticket, and the right of the plaintiff to obtain one, on request, if such right and obligation existed, must have had their foundation entirely in the supposed special undertaking which the published regulation of the defendants imported ; and, in this connection, it may be added, that, independent of any special contract, the whole duty of the defendants toward the plaintiff, was to carry him for a reasonable compensation in money. The defendants were ready to carry him, but he refused to pay them their reasonable compensation of fifty-five cents, and insisted upon holding them to their proposition to furnish a ticket, or its equivalent in a passage, at the price of a ticket. His right to retain his seat, therefore, depended not on the common law obligation of the carriers, but upon the assumed special undertaking of the defendants to furnish and carry for a. ticket. The breach of that assumed undertaking is the gist of the plaintiff’s complaint.

His claim is, that having, on his part, done everything required by the defendants’ regulation, to entitle himself to a ticket, and having failed to obtain one, through the fault of the defendants, he has, as against them, acquired the same rights, as if his efforts to obtain such ticket had been successful. However true the legal principle involved in this claim may be, that principle has no application in the case before us. The published regulation being a mere proposal, until accepted, imposed upon the defendants no legal duty; the minds of the parties not having met, no contract between them had been made. Before the plaintiff’s appearance, the agent had closed the office, and retired, and so the proposal was withdrawn, and withdrawn before acceptance. An intention, or a readiness, to accept an offer, is a very different thing from an actual acceptance. True, according to the plaintiff’s claim, his failure, by a timely acceptance of the offer, to make a binding contract, was chargeable entirely to the defendants, but still there was no actual acceptance of the proposal, no uniting of the minds of the parties, and no contract made.

Again. There can be no breach of a contract, until the contract itself has been first completed by the meeting of the minds of the parties to it. Here, the assumed breach, on the part of the defendants, occurred when the agent withdrew, and closed the ticket office, but that was before the appearance of the plaintiff’ at the office, and, for aught that appears, before his mental determination to apply for a ticket, and, certainly, before any notice, express or implied, actual or constructive, of such determination, was given to the defendants or their agents. Closing the office was, for the time, at any rate, a most effective withdrawal of the proposal to furnish tickets, and, necessarily, communicated notice of such withdrawal to the plaintiff. The conclusions, upon this view of the question, are, 1. As common carriers merely, the defendants were under no legal obligation to furnish tickets, or to carry passengers for less than fifty-five cents in money, thfit being agreed to be a reasonable price. 2. The plaintiff’s claim to a passage, as if he had a ticket, rested entirely on the assumed engagement of the defendants to furnish tickets, and the plaintiff’s endeavor to procure one, defeated by the defendants themselves. 3. The published regulation of the defendants was not a contract, creating a legal debt or duty, but a mere proposal, which might be suspended, or withdrawn at pleasure. 4. It was suspended, if not withdrawn, by the closing of the office, and the retirement of the agent. 5. The proposition being suspended or withdrawn, the parties were in the same condition, as before it was made. The defendants, continuing common carriers, were bound to carry for their reasonable compensation, fifty-five cents, but not otherwise.

By the very terms of the original regulation, upon one alternative of which the plaintiff relies, if a ticket was not paid for and procured by the passenger, before entering the car, his fare should be fifty-five cents. When the plaintiff entered the car, without his ticket, he knew the terms on which the defendants proposed to carry him ; he made no objection to those terms, until after the train had started, and so entering the car and proceeding on the way, he must be taken to have acceded to the proposition, and agreed to pay the price which the rule required. Suppose that the defendants, instead of removing the plaintiff from the car, upon his refusal to pay the fifty-five cents, had carried him through, and then sued him for their compensation. Could the facts, disclosed in this motion, have been set up in bar of the suit ? I think not.

Upon the whole, I think that the plaintiff refusing to pay the fifty-five cents, the conductor had a right to remove him from the car, using no unnecessary force for that purpose, and that for such removal, the defendants ought not to be subjected in this action, and, consequently, that the charge, on this point, was wrong.

Upon the second point, the legal principles, enunciated in the charge, are in my judgment correct. If the plaintiff was wrongfully put out of the car, he had a right to re-enter, and if in his endeavor to do so, he received an injury, in the manner stated in the motion, he was entitled to recover for such injury, unless there was, on his part, a want of reasonable care and prudence which produced, or essentially contributed to produce, said injury. But if the plaintiff’s removal from the car was rightful, or if, in his attempting to re-enter, there was on his part a want of reasonable care, or prudence, which’ produced, or contributed essentially to produce, said injury, then he was not entitled to recover for it.

The plaintiff claimed that, for the purpose of removing him from the car, and keeping him off, the conductor called to his assistance a servant of the defendants; that thereupon a struggle ensued between the plaintiff, on the one side, and the conductor and his assistant on the other, and that before the termination of the struggle, and immediately upon the plaintiff’s coming from the car to the ground, the servant intentionally kicked him in the face. The defendants claimed that such kick, if given, was without the knowledge, and without any particular, or express, direction of the conductor, or any other officer, or agent of the company. And they prayed the court to charge the jury that, without such knowledge, or direction, they could not be held liable.

The court charged the jury that, upon the facts, as claimed by the plaintiff, the defendants were liable for the kick, and omitted to charge, as requested by the defendants.

The jury should have been instructed in substance, that, if the kick was given by the servant, for the purpose of keeping the plaintiff off from the car, and was, under the circumstances, but the exercise of necessary and proper force for that' purpose, the defendants were responsible for it, provided the plaintiff had been wrongfully put out, and had a right to re-enter; but, if he had no right to re-enter, then the kick was justifiable. But, if such kick was not necessary, and proper, for the purpose of keeping the plaintiff off, and was by the servant intentionally given, without the knowledge or direction of the conductor, or any other officer or agent of the company, the defendants were not liable for it.

The liability of the master for acts of his servant seems to depend upon the question, whether the servant, at the time, and in the particular in question, was acting under, and in execution of, authority from the master. Salk., 282. 20 Conn. R., 284.

In this case, the servant was called to assist the conductor, and may be considered as having a general order, or command, to keep the plaintiff off; but that order authorized the employment of none but usual, and legal, means for the purpose, and the intentional employment of such an unusual, unnecessary, and unjustifiable measure, as a kick in the face, could not have been contemplated by the conductor, and, in the absence of proof, the law will not deem it authorized by him.

■ In Noyes’ Max., ch. 44, it is said, “ If I command my servant to distrain, and he ride on the distress, my servant shall be punished, not I.”

This authority is cited with approbation by Lord Ellenborough, Ch. J., in McManus v. Cricket, 1 East, 106, and seems to stand upon the principle that an order to do a lawful act, which may be, and ordinarily is, done in a lawful manner, confers authority to do the act in that manner only, for that manner only, is presumed to be in the contemplation of the parties. If, therefore, the servant does it otherwise, he exceeds his authority, and he alone is liable for it. 2 Kent’s Com., 284. 35 E. C. L. R, 448. 17 Mass. R, 508.

But whether the defendants would be liable, or not, in a proper form of action, it is quite clear they are not liable in trespass. In order to render the master liable for the servant’s act, in trespass, it must be shown that the act was done in the execution of the master’s order, or with his assent,' or approbation.

And where it is shown that the act was done without his knowledge, or direction, his silence can not operate against him. 20 Conn. R, 284. 2 Met., 606.

But this question has been so recently under examination in this court, in the case of The Thames Steamboat Company v. The Housatonic Railroad Company, ante p. 40, decided at the last term, and has been so thoroughly discussed by the judge, who gave the opinion of the court in that case, that the further consideration of it seems now unnecessary.

I advise that a new trial be granted.

In this opinion, Waite, Ch. J., concurred.

Hinman, J.,

concurred in advising a new trial, but not for the reasons assigned by the majority of the court.

He thought the only error of the court below, consisted in so putting the case to the jury, as to have it turn upon whether the plaintiff applied for a ticket at a reasonable time before the train left, and was unable to obtain one. In his opinion, the office for the sale of tickets might have been open the greater part of the day, previously to the leaving of the train, and yet been closed a few minutes before, in conformity to their, general practice. If this was so, then he thought the plaintiff had a reasonable opportunity to obtain a ticket, and neglected to improve it. He thought, therefore, the proper question was, not whether the application for a ticket was made at a reasonable time before the train left, but rather, whether a reasonable opportunity was given by the defendants, in which a ticket could have been obtained, had the plaintiff used due diligence to procure it.

Storrs, J., concurred with Hinman, J., in his dissent from the views of Judges Waite and Sanford. He was also of opinion that, as the case was presented on the trial, the question, on which it was put to the jury, as to the right of the defendants to eject the plaintiff from their cars, was substantially, although not in terms, the same as that on which Judge Hinman thought the verdict ought to depend; and therefore that a new trial should not, on that ground, be advised.

His views on the case will be given in a subsequent part of the volume.

New trial to be granted.


text:
    Bassett vs. Kinney.
    An agent, with whom money is deposited for a definite owner, is chargeable with the interest which he receives for the use of such money.
    A railroad corporation deposited with K, the treasurer of the county of N, the money awarded as damages to the plaintiff for his land, taken for the purposes of their road, and also, paid K a commission for receiving, keeping and paying over the same. K immediately deposited such money in an incorporated bank, where it remained for more than a year, when it was paid to the plaintiff. The bank afterward allowed and paid to K, interest for one year at four per cent., upon the amount of such deposit. Held, in an action against.K, for money had and received, that the plaintiff was entitled to said interest.
    This was an action for money had and received, brought originally against Jacob W. Kinney, who died during the pendency of the suit, and the present defendant, as the executrix of his will, was made a party.
    The cause was tried before the jury, in the superior court, at the August term, 1855.
    On the trial, it was proved, that the New Haven and New London railroad company, in October, 1852, deposited with Kinney, as treasurer of New London county, for the use of the plaintiff, the sum of eight thousand dollars, the amount of damages awarded to the plaintiff, for certain land taken by the company, for purposes connected with their road, and at the same time paid him two and a half per cent, on the amount théreof, as his commissions, for receiving, keeping, and paying over the same.
    The money, thus received for the plaintiff’s use, was, by Kinney, immediately deposited in the Norwich bank, where it remained a little over a year, when it was paid to the plaintiff, upon his application. After the money had been paid to the plaintiff, the directors of the bank allowed and paid to Kinney, four per cent, upon the amount of the de- . posit, for one year, amounting to the sum of three hundred and twenty dollars.
    As soon as the plaintiff was informed of the payment of the interest to Kinney, he demanded the same of him, which Kinney refused to pay, and thereupon the plaintiff brought the present suit.
    Upon these facts, the court instructed the jury, that the plaintiff was entitled to recover the amount of the interest paid to Kinney, with interest from the time of the demand. The jury returned their verdict accordingly, and the defendant filed his motion for a new trial, and the case was reserved for the advipe of this court.
    The cause was submitted without argument.

      J. A. Hovey, for the plaintiff.
    Foster, for the defendant.
   Waite, C. J.

The money, when deposited by the railroad company in the hands of Kinney, became the property of the plaintiff. It was substituted by the company for the land, which they had taken for their use. The interest, paid by the bank, was paid for the use of the plaintiff’s money, and became as much his property, as the principal itself.

It was upon this principle that the case of Willis v. The Commissioners of Appeals in Prize Causes, proceeded. 5 East, 22. There, a portion of the cargo of a captured ship had been condemned and sold by agents appointed for that purpose. Upon an appeal to the commissioners, the decree of condemnation was reversed, and the agents were ordered to pay over to the owners, the net proceeds of the sale, together with the interest from the time of the sale. Upon an application to the court of king’s bench, for a prohibition against further proceedings, relating to the payment of interest, that court refused to interfere, upon the ground that it was to be presumed, that the commissioners had found that the agents had made interest from the funds in their hands, and if so, they were accountable for it. Lord Ellenborough, C. L The case is not brought forward, on the ground of contract, but simply on the ground that the proceeds had got into the hands of the agents, and have there grown and accumulated, producing the interest sought to be recovered.” And Le Blanc, J. remarked, that taking interest to have been made, he considered it as composing part of the proceeds.

And in the case of Rogers v. Boehm and others, where the plaintiff sought to recover interest upon money remitted to the defendants, Lord Kenyon observed, that there were cases in which the rules of equity and law were the same; that it had been decided, in a court of equity, “ that if money had been remitted to an agent, and he suffered it to remain dead in his hands, he should not be liable to interest, but, that if he mixed it with his own, or made use of it, he should be subject to the charge of interest.” 2 Esp. Cas., 703.

It is true that Kinney was under no obligation to place the funds deposited with him as treasurer of the county, upon interest. Had he locked them up in his chest, or merely deposited them in the bank for safe keeping, and received no compensation for the use of them, he would not have been accountable for interest. But having placed them where they drew interest, that interest must be considered qs having the same ownership, as the principal, which produced the interest.

A similar rule applies to funds in the hands of executors and trustees. It was formerly held that, as they were not bound to lend, and if they did so, it was at their peril, and as they were liable to bear the loss, they were entitled to the gain. But that doctrine was overruled by Lord Thui-low, and an executor or trustee may now be considered as chargeable with interest, whenever he appears to have made interest. 2 Fonb., Eq., 183, note p. Newton v. Bennett, 1 Bro. Chan, it., 359.

In this respect an agent, with whom money is deposited for a definite owner, stands in a different situation from that of an auctioneer or stakeholder, with whom funds are deposited for the benefit of one of two claimants, and who is bound to keep them and have them ready to pay over to the party entitled to them, as soon as the question of title is determined. In such case he is not generally chargeable with interest, although he may have used them as his own. Jones v. Mallory, 22 Conn. R., 386. Harrington v. Hoggart, 1 B & A., 577. 20 E. C. L. R., 443. Lee v. Munn, 8 Taun., 45 4 E. C. L. R., 14.

But in neither of these capacities did Kinney receive the money. The very instant it came into his hands, it became the property of the plaintiff, and entitled him to all the interest accruing upon it.

In our opinion, therefore, the charge of the court below was right, and we do' not advise a new trial.

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

A new trial not granted.


text:
    Fox vs. Beebe.
    Fence viewers are the sole judges in questions respecting the sufficiency of fences, and are to decide, by direct examination, without any formal hearing, or trial, whether an existing fence is or is not such as the statute requires.
    Where fence-viewers find a divisional fence to be insufficient, their notice to the persons bound to repair it need not specify the particulars in which it is defective.
    Where a divisional fence is found by the fence-viewers to be insufficient, and the person bound to repair it neglects to do this, for fifteen days after notice in writing from the fence-viewers, the party aggrieved may repair it in any reasonable manner, and the expense may be allowed him by the fence-viewers.
    Where, in an action brought upon the statute, entitled “An act concerning fences and common fields,” to recover double the expense of repairing the defendant’s part of a divisional fence, the plaintiff offered in evidence a written notice, given by the fence-viewers to the defendant, informing him of the insufficiency of the fence, to the admission of which notice the defendant objected, on the ground that it did not specify wherein the fence was insufficient ; it was held, that such notice was admissible.
    Where, in such action, it appeared that the defendant’s part of the fence was, and for more than fifteen years had been, a ditch which he had dug, and that the plaintiff had performed no work upon such ditch, but had erected a fence of posts and boards on, or near, the edge of the ditch, in the dividing line between the lands of the parties, and the fence-viewers certified that the sum of $23.87 was the value of the repairs made by the plaintiff upon the defendant’s fence ; it was held, that the plaintiff was not required, by law, to make the necessary repairs of such fence, by enlarging the ditch, but might make them in any reasonable manner, and therefore, that he was entitled to recover.
    This was an action, brought upon the statute, entitled “An act concerning fences arid common fields,” to recover double the expense of repairing the defendant’s part of the divisional fence, between their adjoining lands, incurred by the plaintiff in pursuance of the provisions of the statute.
    The material parts of the statute, upon which the action is founded, are the following.
    See. 1. “ That the proprietors of lands shall make and maintain sufficient fence or fences, to secure their particular fields and enclosures; and a rail fence, four feet and an half high, a stone wall, four feet high, well and substantially erected, and any other fence, either of rails, boards, hedge, ditch, brooks, rivers or creeks, which, in the judgment of fence-viewers, shall be equal to a rail fence four and a half feet high, shall be deemed a sufficient and lawful fence.” * * * #
    Sec. 5. “ If any person who ought to maintain any divisional fence, shall refuse or neglect to keep it in sufficient repair, the party aggrieved shall have power to call on the fence-viewers to view the same, and if they find such fence to be insufficient, they shall, without delay, give notice in writing, of such insufficiency, to the person or persons, who are bound to repair it; and if he or they do not, within fifteen days, put the same in sufficient repair, then the party aggrieved may do it; and when the same shall be completed, and judged sufficient by said fence-viewers, they shall estimate the value of such repairs, and make a certificate thereof, under their hands, with an account of their fees; and the party aggrieved shall have right to recover of the party, who ought to have made such repairs, double the value of said repairs, together with the fees of the fence-viewers ; and on his neglect, or refusal, to make payment thereof, for thirty days after it shall be demanded, the aggrieved party may sue for and recover the same, by an action on the case.”
    The cause was tried, before the jury, at the August term, 1855, of the superior court for New London county.
    On the trial, it was proved and admitted, that the defendant’s part of the fence was, and for more than fifteen years had been, a ditch, dug by him, on the plaintiff’s side of the line, and that no notice had been given to the defendant to be present, when the fence-viewers were called out to decide upon the sufficiency of the fence.
    The plaintiff offered in evidence the written notice, given by the fence-viewers to the defendant, informing him of the insufficiency of his fence. To its admission, the defendant objected, on the ground that it did not state wherein it was insufficient; but the court overruled the objection, and admitted the evidence.
    The defendant offered witnesses, other than the fence-viewers, to testify that the ditch, when examined by the fence-viewers, was equal to a rail-fence, four and a half feet high. To their admission the plaintiff objected, and the court excluded them.
    Ebenezer L. Lathrop, one of the fence-viewers, testified that the fence, in their judgment, was not a lawful fence, being, in many places, only three and a half feet wide, shallow, and in some places, almost filled up, and the earth taken out in excavating, carried away; and, on his cross-examination, he further testified, that, in the opinion of the fence-viewers, to render the ditch such a fence as the statute required, it would have been necessary to make it, at least four feet wide, and four feet deep, or of equivalent dimensions, with the bank left on the defendant’s land, and that a ditch of smaller dimensions would not be such as the law required.
    It was proved, and admitted, that the plaintiff had neither deepened, nor widened the ditch, nor done any work upon it as a ditch, but had erected a fence of posts and boards, from three feet to three and a half feet high, on, or near, the edge of the ditch, in the dividing line between the parties, and that the sum of $23.87, certified by the fence-viewers to be the value of the repairs, made by the plaintiff upon the defendant’s fence, was for the post and board fence.
    Upon this evidence the defendant claimed, and requested the court to charge the jury, that the statute did not require that a ditch, to be a sufficient fence, should be of the dimensions stated by the witness, Lathrop, and that if they found that the fence-viewers, in coming to the conclusion that the fence was not sufficient, acted under a mistaken view of the law, their decision was not binding, and the plaintiff could not recover; that the ditch having been made and maintained by the defendant as a division fence, the plaintiff could lawfully repair it, only by widening and deepening it, or otherwise operating upon it, as a ditch, and had no right to substitute for it, or add to it, any other kind of fence, and that the post and board fence was no repair of the fence, within the meaning of the statute.
    The court charged the jury, that, by the statute, the power to decide whether the fence was sufficient or not, and upon the sufficiency of the repairs made by the plaintiff, and the value of such repairs, was vested exclusively in the fence-viewers, and their determination promulgated in the manner prescribed in the statute, in the absence of fraud and mistake, was conclusive upon the parties ; that they had no right to prescribe to the parties what particular kind of fence, or repairs, should be made, but only to estimate their value, as fence, when made, and that the post and board fence, erected by the plaintiff, when made, approved, and found sufficient, by the fence-viewers, was such a repair of the defendant’s fence, within the meaning of the statute, as would entitle thq plaintiff to recover the compensation provided by the statute.
    The jury having returned their verdict in favor of the plaintiff, the defendant moved for a new trial, and the questions of law were reserved for the advice of this court.

      E. Perkins and Starkweather, in support of the motion.
    1. The notice given by the fence-viewers, of the insufficiency of the defendant’s fence, should have specified wherein that insufficiency consisted. On this question the defendant had a right to be heard, and without an opportunity for a ’hearing, no conclusive judgment could be rendered against him.
    . 2. Fence-viewers can not order a party to erect a fence, different from that which already exists; and the party, who substitutes a new and different kind of fence, can not call on the adjoining proprietor to pay for it. Such new fence would be no repair of a fence, or of a ditch. The defendant, in the present case, as the owner of the soil, who was obliged to maintain the fence at the place in question, had a right to select his own fence. The question between the parties, was not as to the construction of a new fence, but the repair of the fence already in existence. If a new fence is required, the proceedings must be founded upon the seventh section of the statute concerning fences, and not, as in the present case, upon the first and fifth sections.

      Wait and Hovey, against the motion.
    I. The defendant acquired no right, by maintaining the ditch in question as a fence, for a period of more than fifteen years, which he would not have had, if he had, maintained a fence of any other description for the same period. 7 U. S. Dig., 274, tit. Fences, § 4. Dysart v. Leeds, 2 Barr, 488.
    II. Notice to the defendant, of the calling out of the fence-viewers, and to be present at their meeting and be heard in relation to the sufficiency of his fence, was not necessary. Rev. Stat., 529. Sharp v. Curtiss, 15 Conn. R., 526.
    III. The fence-viewers are, by the statute, constituted the sole judges of the sufficiency of a divisional fence, and therefore the court would not have been justified in instructing the jury, as matter of law, that the statute did not require the defendant’s ditch to be four feet wide and four feet deep, with the bank left upon his land, to render it a sufficient fence. Nor was there any testimony which rendered it necessary, or proper, for the court to charge the jury in that part of the case, as requested by the defendant.
    IV. The plaintiff was not bound to repair the defendant’s ■fence by widening or deepening the ditch; but he had a right to repair it in any other reasonable manner. And the defendant ought not, after having refused to repair the fence himself, to question that right, especially as the fence-viewers have adjudged the repairs made by the plaintiff to be sufficient. -?,
    V. The judgment of the fence-viewers, as to the sufficiency of the defendant’s fence, being final and conclusive, could not be set aside, or in any manner affected, by the contrary opinion of other persons. Consequently the testimony offered by the defendant, that the ditch in question was equal to a rail fence, four feet and a half high, was properly excluded. Baker v. Lakeman, 12 Met., 195.
    VI. The notice given by the fence-viewers to the defendant, of the insufficiency of his fence, was in strict accordance with the provisions of the statute.
   Waite, C. J.

The statute undoubtedly contemplated a summary proceeding, in determining questions respecting the sufficiency of fences, and the mode of compelling the necessary repairs.

It prescribes what, in certain cases, shall be sufficient fences. A rail fence, four and a half feet high, a stone-wall, four feet high, well and substantially erected, or any other fence, which, in the judgment of the fence-viewers, shall be equal to such rail fence, shall be deemed a lawful fence.

When the fence-viewers are called upon to examine a fence, if it be a rail-fence, or a stone-wall, they have but to measure the height, and see whether it is well and substantially erected. If made of any other material, they are only to see whether it be equal to a lawful rail-fence.

There is to be no formal hearing or trial before them, as before auditors, or committees in chancery. In the language of the statute, they are to view the fence and determine whether, in their judgment, the fence is such as the law requires. In this respect, their duties are much like those of inspectors of provisions, and lumber, who are to decide upon the qualities, and quantity, of the articles to be inspected, not by the testimony of witnesses, but by a direct examination.

Nor was it necessary for the fence-viewers, in their notice to the defendant, that the fence was insufficient, to specify the particulars, wherein it was defective. They were not to prescribe the manner in which the repairs were to be made. The plaintiff had a right to make them as he pleased, either by enlarging the ditch, or erecting a new fence of rails, stones, or any other materials.

Ordinarily, the defects could readily be seen upon inspection, or admeasurement, and were there any doubts upon the subject, the defendant might have enquired of the fence-viewers. Their judgment, in this respect, does not stand upon the same ground as that of a judicial tribunal, which would not be binding upon a party, who had no opportunity of being heard, but as before observed, is more like that of an inspector. The court, therefore, did not err in admitting, in evidence, the written notice of the insufficiency of the fence.

The defendant claimed that the statute did not require a ditch to be four feet wide, and four feet deep, to render it a lawful fence. This, as a general position, is undoubtedly true. Such a fence, in some cases, might be more than the law requires, and in others, less.

Had the evidence in the case called for such a charge, we should have said it ought to be given. But the only evidence, upon that subject, was given by one of the fence-viewers, and he spoke only in reference to the fence in question, and stated what, in the j'udgment of the fence-viewers, would be necessary to render a ditch there, a legal fence. Upon that subject, the statute made them the sole judges.

The only remaining enquiry relates to the manner in which the repairs were made by the plaintiff. As before remarked, the defendant had a right to repair the fence in any manner he pleased, provided he made it a lawful one, and upon his neglect, or refusal, the plaintiff might repair it in any reasonable manner, and so far forth as the work, done by him, was necessary to make the fence a lawful one, it was competent for the fence-viewers to allow the expense.

He had no right to expend money extravagantly, in the érection of an expensive and unnecessary fence, and if he did so, it would have been the duty of the fence-viewers to allow him nothing more than the expense of doing what was reasonable and necessary, in making the repairs.

But in this case, it is not claimed that the repairs were made in an unreasonable manner, provided they could have been made otherwise than by enlarging the ditch, and we do not think there is any law necessarily requiring them to be made in that manner.

We do not advise a new trial.

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

A new trial not to be granted.