text:
    The President, Directors and Company of the Thames Bank vs. The Commissioners of the Channel of the River Thames.
    The charter of incorporation of The President, Directors and Company of the Thames Bank, having provided, that immediately after its organization, the directors shall purchase and cause to be transferred to said bank, the stock of all such members of the Norwich Channel Company, as shall sell and transfer their stock, at twenty dollars a share; that the bank, within tvyo years from the first organization thereof, shall expend three thousand dollars, in deepening the channel and improving the navigation of the river Thames; that three commissioners shall be appointed to settle and adjust the accounts of the expenditures aforesaid, and of the tolls received therefrom, contained the following provision: that “if, at any time, after the transfer of all said channel stock to said bank, by reason of the improvement in the navigation of said river, the amount of tolls collected shall be more than sufficient to defray the annual expenditures by this act required to be made, said excess shall be first applied, to refund to said bank the sums which shall have been expended, under this act, beyond the amount of tolls received, allowing interest to said bank, on all expenditures for the purpose aforesaid, at the rate of five per cent, per annum, only; it being hereby provided, that said principal sum of three thousand dollars, and the amount that shall be paid for said channel stock, shall not, at any time, be refunded to said bank. And should said tolls be more than sufficient to pay as aforesaid, then, and in that case, said excess shall, at the discretion of the directors, be expended, in still further deepening'the channel, and improving the navigation of said river; or if not so applied, the commissioners may, from time to time, reduce and vary the rates of toll to be received by said bank, so as to prevent any excess as aforesaid.” On a petition for a mandamus, requiring the commissioners, appointed under their charter, to allow said bank, in their account of expenditures and tolls, interest at the rate of five per cent, per annum, on the sum of $5,000, made up of $2,000 paid for said channel stock, and $3,000 expended in deepening the channel of said river; it was held, that only the annual expenditures, made after the expiration of two years from the organization of the bank, with five per cent, interest thereon, were to be refunded to said bank, out of the annual excess of tolls, above the annual excess of expenditures, and that said $5,000 was in the nature of a bonus, upon which the bank was not entitled to interest.
    This was a petition for a mandamus, to E. C. Chapman, C. D. Fillmore and William Clegg, commissioners appointed under the act incorporating the Thames Bank, “ to see that the provisions of said act, relating to the deepening and improvement of the channel of the river Thames, are carried into full effect, and annually to settle and adjust the accounts of the expenditures made in the same, and of the tolls received therefor.”
    The petition stated, that in 1825, the petitioners were incorporated by the legislature, with banking privileges. Prior to that time, the Norwich Channel Company had been incorporated, with a capital stock, consisting of one hundred shares of one hundred dollars each, for the purpose of deepening the channel of the river Thames, and improving the navigation of the same, with power to collect certain tolls prescribed by said act, from all vessels drawing more than seven feet of water, and passing through said channel; upon which stock the shareholders were entitled to receive, from said tolls, to the amount of ten per cent, per annum, the balance of said tolls being required to be expended for the improvement of said channel. By their charter, the petitioners were required, immediately after their organization, to purchase and cause to be transferred to them, the said shares of stock of said Channel Company, in case the same could be purchased, at twenty dollars per share, and thereupon the petitioners were to succeed to the rights and privileges of said Channel Company, excepting that they were required to reduce the rates of toll to be by them collected, fifty per cent. It was provided, by said charter, that there should be annually appointed by the governor, with the approbation of the senate, three commissioners, whose duty it should be, to see that the provisions of said act, relating to the deepening and improvement of the said channel, were carried into effect, and annually to settle and adjust the account of the expenditures made in the same, and the tolls received therefrom; also, that said bank, after the expiration of two years from their first organization, should not exercise any of the banking privileges granted by their said charter, unless, within that period, the sum of three thousand dollars, and the tolls received from the channel, during said time, should be actually expended in deepening the channel, and improving the navigation of said river Thames; and it was also made the duty of the bank, to cause to be expended, for the purpose aforesaid, each and every year after the expiration of said two years, the sum of five hundred dollars, or such part thereof as should be necessary to give a depth of at least ten feet of water in said channel, at common and ordinary tides.
    If, at any time after the transfer of all said channel stock to said bank, the amount of. tolls collected should be more than sufficient to defray the annual expenditure, by the said act required to be made, said excess was to be first applied to refund to said bank the sums which had been expended under said act, beyond the amount of tolls received, allow? ing interest on all such expenditures, at the rate of five per cent, per annum only, it being further provided, that said principal sum of three thousand dollars, and the amount paid for said channel stock, should not, at any time, be refunded to said bank.
    Said bank was duly organized, as early as June, 1825. Previous to that time, all said shares of channel stock were purchased by, and transferred to, the petitioners, at the price of twenty dollars per share ; and during said period of two years, the sum of three thousand dollars, and all said tolls, collected within that time, were actually expended, as. required by the charter of the bank, in deepening said channel, and the improvement of the navigation of the same ; and during each year after the expiration of said two years, the further sum of five hundred dollars had been expended for the same purposes. The petitioners then alleged; that they had kept an accurate account of their receipts and expenditures, connected with said channel, charging the interest of five per cent, per annum ; that their account had been annually made out and presented to said commissioners; that it embraced said sum of $2,000 paid for said channel stock, and said sum of $3,000 paid for deepening said channel, and improving the navigation of said river,—and had been by them adjusted and allowed, to the first day of January, 1852; that since that date, the petitioners had presented to said commissioners, a correct annual statement and account of their receipts and expenditures, with reference to said channel,—by which it was shown, that, since said last date, their receipts were $1,380.16 more than their expenditures ; but that certain persons interested in the navigation of said river, having claimed that the. petitioners were not entitled to the allowance of five per cent, per annum, upon the two thousand dollars paid for said channel stock, and upon the three thousand dollars, expended in deepening said channel and improving the navigation of said river, the commissioners declined to allow said charge of five per cent, per annum, upon said last mentioned sums, unless the. superior court should so order and direct.
    The petition prayed for notice to the commissioners, and a writ of mandamus, requiring them to settle and adjust said accounts, as claimed by them. The defendants appeared, and, by agreement of the parties, the case was reserved for the advice of this court.

      Strong and E. Lamed, for the petitioners,
    contended, That the Thames Bank is entitled to charge interest, at five per cent, per annum, on the $5,000 expended under the provisions of its charter.
    By the express terms of the fourteenth section it is allowed. Private Acts, p. 151,512. The provision, that the principal sum is not to be refunded, does not imply, that interest should not be allowed. The term principal sum indicates, that interest is to be calculated on it, and only the $5,000 is to be excepted. The Channel Company has this right, and the bank succeeded to all the rights of said company. Thames Bank v. Lovell, 18 Conn. R., 500. The $5,000, expended by the bank, was in the place of the channel stock, not a bonus.

      Ed. Perkins, for the defendants,
    contended, 1. That the allowance of interest, in the fourteenth section of the charter of the bank, is confined to those expenditures of the bank, which, by the same section, are to be refunded out of the excess of tolls. It is not to be presumed, that the legislature designed, that the bank should receive interest on those expenditures which they are compelled to make, and which it is expressly provided “ shall never be refunded.” If any other construction is adopted, it involves the absurdity of allowing the bank interest on their whole expenditures, without reference to their receipts from tolls. It will even allow them interest on the very tolls received from 1825 to 1827, which they are required to expend, and which are not to be refunded. The legislature evidently supposed, that the bank would be entitled to the ordinary rate of interest, at six per cent., on all sums which were to be refunded, and the whole sentence, as to the allowance of interest, is introduced for the mere purpose of limiting the rate to five per cent. This is evidenced, by the use of the word “only" at the end of the sentence.
    2. Sections 12, 13 and 14 of the charter, were designed to impose on this bank a bonus, in favor of a valuable public interest,—the improvement of the channel of the river Thames. The state has no right'to impose tolls on this river, except for the purpose of improving its navigation. Thames Bank v. Lovell, 18 Conn. R., 500. In construing any doubtful expressions in this section, (if there are any such,) the intent should have a controlling influence, and the benefit of the doubt be given, in favor of the freedom of the river, or its further improvement.
   Ellsworth, J.

The question in this case arises on the

construction of the fourteenth section of the plaintiffs’ charter. Yery little aid is to be derived from any other section, except, perhaps, the thirteenth, though the ninth, tenth and .eleventh have some bearing on it; nor from the charter of the Norwich Channel Company.

The fourteenth is in these words : se If, at any time after the transfer of all said channel steck to said bank, by reason of the improvement in the navigation of said river, the amount of tolls collected shall be more than sufficient to defray the annual expenditures, by this act required to be made, said excess shall be first applied, to refund to said bank the sums which shall have been expended, under this act, beyond the amount of tolls received, allowing interest to said bank, on all expenditures for the purpose aforesaid, at the rate of five per cent, per annum only, it being hereby provided, that said principal sum of $3,000, and the amount that shall be paid for said channel stock, shall not, at anytime, be refunded to said bank; and should said tolls be more than sufficient to pay as aforesaid, then, and in that case, said excess shall be expended in still further deepening the channel, and improving the navigation of said river; or if not so applied, the commissioners may, from time to time, reduce and vary the rates of toll to be raised by said bank, so as to prevent any excess, as aforesaid.”

We think this section has reference to annual expenditures only, such as are required, by the twelfth section of the charter, to be made after the expiration of two years. This annual expenditure may be refunded to the company, with fi ve per cent, interest; and is to be refunded out of the annual excess of tolls, above the annual expenditures. Tjje four thousand dollars are never to be refunded; they are to be a bonus for the bank charter. We can not believe the legislature intended to make this sum irredeemable, and yet put it on interest, at five per cent, per annum, for all time, an endless burden on the navigation of the river, and this too, when they had so expressly and emphatically declared, “ the $5,000 shall in ño event be refunded,” Besides, the word expenditure,” if intended to comprehend the $5,000, will, for the same reason, comprehend the gross tolls collected and expended before the channel stock was purchased; for the tolls expended in improving the channel of the river, are “ sums expended under this act,” and, on this hypothesis, they are to be refunded with interest; whereas it is quite certain, only the annual excess of disbursements, above, the annual tolls, after the channel stock has been purchased, is to be refunded. Hence, to ascertain this difference, commissioners are to be annually appointed by the legislature, and interest is to be computed on nothing else. The language of the eleventh' section, 'at the close, is : “ The commissioners shall annually settle and adjust the accounts of the expenditures made in the same, [the river,] and of the tolls received therefrom.” This is the only sum to he refunded.

We advise that no mandamus be issued.

In this opinion, the other judges concurred, except Waite, J., who, being related to some of the stockholders of the Thames Bank, did not sit in this case.

Mandamus not issued.


source: Caselaw Access Project

author: Ellswokth, J.

license: Public Domain

text:
    Norton and another, vs. Ladd and another.
    A copartnership mortgaged to sundry creditors, certain personal property, with power to sell the same, and after deducting charges and expenses, to apply the avails, in payment of their respective debts. A and B, a co-partnership who were embraced in the mortgage, took possession of all the mortgaged property i with the consent of the other mortgagees. Prior to the execution of the mortgage, the mortgagers, having a lien upon forty-five bales of sheetings, attached the same, upon a debt due to them from the owner. The said copartnership of A and B gave the officer who served the attachment, a bond for the delivery of the sheetings to him, on the termination of the suit upon which they were so attached, and took possession of the same. Both the debt upon which the suit was brought, and the sheetings, were included in, and transferred by, the mortgage. Such interest in the sheetings as remained in the owner was also subsequently assigned by him, to the mortgagees; and the bond of A and B given upon the attachment, was, upon such assignment, canceled. A and B subsequently sold the sheetings, and- received the proceeds. Upon a bill in equity, brought- against A and B by a part of the mortgagees, in behalf of themselves and their co-mortgagees, praying for a decree, ordering them to render their account of the proceeds, arising from the sale of the property conveyed by said mortgage, and to pay over to the mortgagees their respective proportions thereof, it was held, 1. that, as the amount of the share of such proceeds, belonging to each mortgagee, could only be ascertained by a court of equity, such bill was properly brought; 2. that A and B, in the sale of said sheetings, having acted as trustees of the other mortgagees, could not 'afterward repudiate that character; and, therefore, that the proceeds arising from such sale were to be divided, pro rata, among all the mortgagees; 3. that the allowance of costs to the plaintiffs, by the superior court, against the defendants, was discretionary, and not a ground of error.
    This was. a bill in equity, brought to the superior court for New London county. Douglass and Prentiss mortgaged to certain creditors, among whom were the plaintiffs and the defendants, certain personal property, to secure their respective debts. The debts of the mortgagees, 'not parties to the bill, had been previously paid, partly by the proceeds of the mortgaged property, and partly by funds derived from otW sources. The bill prayed for a decree, requiring the latter to account with, and pay over to, the plaintiffs their respective proportions of mortgaged property, which, it was alleged, had been received by the defendants, and sold under the mortgage. The case was referred to a committee, who reported the facts found by them, to the superior court, holden at New London, September term, 1851. The court, thereupon, ordered the defendants to account to the plaintiffs, for the sum of $2,095.57, and interest, and directed them to pay to each of the plaintiffs, when demanded, such percentage upon the amount due to them respectively, as the whole amount of debts due and secured by said mortgage, viz.: $2,843.92, bears to the sum of $2,095.51 ; and further decreed, that the defendants should pay to the plaintiffs their costs. The other material facts are stated in the opinion given by the court. To revise the decision of the superior court, the defendants brought the record before this court, by motion in error.

      Foster and E. Perkins, with whom was Wait, for the plaintiffs in error. •

      Strong and Halsey, for the defendants in error.
   Ellswokth, J.

From the motion it appears, that Douglass and Prentice, of Lisbon, on the 9th day of August, 1849, being indebted to the plaintiffs and others, by a mortgage bill of sale of that date, mortgaged to them, to secure their respective debts, certain personal property, giving them therein power, in case of default of payment, to sell, and after deducting charges and expenses, to apply the avails in payment, and if there was not enough to pay in full, all were to be paid,pro rata. Norton, Converse & Co., the respondents, being co-mortgagees, took possession of a certain portion of said property, to wit, forty-five bales of sheetings, and, acting in behalf of all the mortgagees, and under the power of. sale conferred on them by said deed, sold the goods in New York, and in November and December, 1847, received the net proceeds, being $2,095.57. The mortgaged debts, now unpaid, are found to be $2,843.92. The plaintiffs insist, for all concerned, that this sum shall be divided in payment of the debts, pro rata.

It appears further, that these sheetings had been manufactured by Douglass & Prentice, at their mill in Lisbon, from materials furnished by, and belonging to, George W. Tarbox, of New York, and the goods, when manufactured, were to be delivered to him, in the city of Norwich. It was found, that the sheetings were in fact his property, but subject to a lien in favor of Douglass & Prentice, for their work and labor in making them; that, shortly prior to giving said mortgage deed, Douglass & Prentice had attached said sheetings, as the property of said Tarbox and one Hiram Tar-box, to secure debts due from them to Douglass & Prentice ; that these debts, and the lien aforesaid were, by said mortgage deed, as well as the sheetings themselves, conveyed to said morgagees and were a part of their security; that George W. Tarbox, before the bringing of this bill, had released to Douglass & Prentice,- whatever interest he might have in the sheetings, and which was in fact received by the mortgagees, in full payment, in discharge of his said debt to Douglass & Prentice, which debt and suit therefor, as already stated, had become the» property of the mortgagees. It further appears, that the sheriff, when he attached said sheetings, for Douglass & Prentice, as aforesaid, took possession of them, and delivered them to Norton, Converse & Co., as receipters, to hdd until the suits should be ended, and they gave him their bond to be responsible therefor ; but as George W. Tar box had no longer any interest in the sheetings, and the debt was held and owned by the mortgagees, and was, in fact, paid, by their taking, the interest of said Tarbox in payment, the bond was no longer important, and, being in the hands of the plaintiffs, at the time of'the trial before the committee, was produced to. them,' and the plaintiffs’ counsel directed it to be delivered up, as a canceled bond, when the trial was finished..

The above.is a statement of all the material facts found by the committee, upon the truth of which the superior court held and decided, that the defendants should pay over the avails of said sheetings to the creditors, pro rata, including of course the defendants.

In this decree, we see no érror. . The equity and law of the case are most obviously with the plaintiffs. Upon what principle can the defendants withhold the money from the mortgagees ? They had an equal title to the sheetings, when assigned to them, and to the money received from them, when sold. The sale, was made under the mortgage deed, and made by the defendants, as representatives' of the mortgagees, and they can not now be permitted to repudiate.their character, and assume some new’relation to this fund. They can not cease-to be agents and trustees, at their own election and convenience. This would be, to violate the first principles of the law, and to shock every sentiment of justice and honor. No -part of the law is better settled, or more scrupulously enforced, or more frequently recognized in this court, than that an agent shall not deny the title of his principal, or avail himself of his peculiar situation, ,to obtain an advantage over him. We can- not allow the defendants to abuse the confidence reposed in them by their co-mortgagees.

We do not say, that there is no possible case, where an agent may not call in question his principal’s title, or his right to demand of him moneys, which he has received, as his representative ; although such cases are exceedingly rare,— as, where the principal had stolen the property, or where the agent had been compelled to surrender it to its true owner; but nothing of this is true in the present instance.

It was said on the argument, that the defendants are liable to account -for the property to George W. Tarbox, the owner of it, at the time it was mortgaged to the creditors ; but the answer to this is, that said Tarbox has since released to the creditors in the deed, all the right and interest he then had, in satisfaction of the claim they held against him. Nor are the defendants exposed, in any way, on the bond they gave to the sheriff. That suit and debt have become the property of the creditors, now calling for the money, and the defendants have nothing to fear from that suit hereafter. Besides, the bond is virtually canceled, by what took place on the trial before the committee. The grounds of defence are clearly too shallow and unsatisfactory to be seriously urged upon this court, and to allow them the force claimed by the defendants’ counsel, would bring a reproach upon the administration of justice.

It is said again, that the plaintiffs are not entitled to relief, because they have adequate remedy at law, for that each creditor can bring his action of assumpsit, to secure his share of the money in the defendants’ hands. But what is his share ? and how can it be ascertained, once for all, in separate actions at law ? How can the amount of each one’s debt, (for his debt may be contracted,) and his pro rata portion of the fund be decided, so that the defendants themselves can safely pay over to creditors, unless all parties are brought before the court and a final settlement is made ? We should be sorry to be obliged to yield to the defendants’ objection, even on their own account; for then they would be- exposed to some fifty or more suits, when one is sufficient; and after all, the rule of settlement, adopted in one case, might be repudiated in the next.

It is said again, that there is error in the decree, inasmuch as the defendants were clearly entitled to be paid their charges and expenses, out of the fund. They insist, that they have acted in good faith throughout, and are not to be punished by a forfeiture of their expenses and costs. We think the defendants have not so conducted. They have unnecessarily subjected their co-mortgagees to expenses and great delay. Aside from the fact, that error is not predicable of discretion, we entirely approve of the manner in which this question was disposed of below. .

There is no error.

In this opinion, the other judges concurred, except Hen-man, J., who tried the cause in the court below, and was, therefore, disqualified.

Judgment affirmed.


author: Waite, J.

text:
    The Town of Griswold vs. Gallup.
    To sustain an action for damages, resulting from the neglect to perform some duty, required, either by the common law, or by a public statute, it is not necessary to aver, in the declaration, the manner in which that duty is imposed.
    Where, however, an. action is brought to recover a penalty imposed by statute, the rule is otherwise, and it is necessary to aver, that the acts complained of were contrary to the statute imposing the penalty.

      The statute relating to highways is a public statute, and as such will be noticed by courts, although not specially set out in the pleadings.
    Therefore, in an action on the case, for an injury resulting from the neglect of a town' to keep in sufficient repair a public highway, and to erect a railing oh the sides of a road and bridge, so raised above the adjoining ground as to endanger the safety of travelers ; it-was held, that a declaration which contained no averment, that the liability of the defendants wa3 imposed by statute, was not, on that account, insufficient.
    This was an action on the ease, tried before the superior court, holden at Brooklyn, in April, 1852.
    In the declaration, it was alleged, that it was, by law, the duty of the defendants, to keep in good and sufficient repair a certain road and bridge, in the town of Griswold; that they were so raised above the adjoining ground as to endanger the safety of travelers ; and that the defendants, neglecting their duty, omitted to keep the road in repair, and to erect a railing on the sides of the road and bridge. The plaintiff, having occasion to pass the bridge and along the road, by reason of the absence of a railing on the sides of the bridge, and the wrongful neglect and omission of the defendants to keep the railing and the road in sufficient repair, was thrown out of the wagon and off the bridge, and seriously injured.
    The jury having returned a verdict in favor of the plaintiff, the defendants moved, in arrest of judgment, because it was not alleged in the declaration, that the liability or duty of the defendants, to make and maintain the road, bridge and railing, was imposed upon them by force of the statute-The superior court adjudged the declaration sufficient; and the defendants, by a motion in error, brought the cause before this court.

      Welch and Penrose, for the plaintiffs in error,
    contended, 1. That an action at common law may be maintained upon a liability created by statute. Hartford & N. Haven R. R. Co. v. Kennedy, 12 Conn. R., 499. Hiles v. Shrewsbury,
      3 East, 455. Thornhill v. Township of Huddersfield, 11 id., 349. Sharp v. Curtiss, 15 Conn: R., 526. Stephens’ Nisi Prius, 1010. 1 Black. Com., 51. Wood v. Waterville, 4 Mass. R., 422. Lewis v. Town of Litchfield, 2 Root, 436.
    2. The declaration is, in substance, a declaration, on the statute. The statute is pleaded. Gould’s Pleadings, p. 56, note. “ Contra formam statuti" is a matter of mere form, the omission of which is to be taken advantage of only by special demurrer, and is cured by verdict. The character of a declaration is to be determined by its allegations, and not by the meaning the pleader may attach to it. Gates v. Miles, 3 Conn. R., 64. All the facts necessary to bring the cause within the statute are alleged. It is sufficient, if it appear from the whole declaration, that the action is brought upon the statute. Barkhamsted v. Parsons, 3 Conn. R., 1. Tombs v. Painter, 13 East, 1. 1 Chitty’s Pl., 285, 639. Spencer v. Overton, 1 Day, 184. Conner v. Harris, 1 Comstock, 223. Stat.. 1849, p. 417.

      Foster, for the defendant in error,
    contended, 1. That the liability of the town arises solely from the statute: it is unknown to the common law. The only question, then, would seem to be,—is this declaration at common law, or on the statute ? The rule in relation to actions brought on statutes, is thus stated by Chitty : “ If however» an offence be created by a statute, and a penalty be inflicted, the mere statement of the facts constituting the offence will be insufficient; for there must be an express reference to the statute, as b.y the words ‘ contrary to the form of the statute,’ &c, in order that it may appear, that the plaintiff grounds his case upon, and intends to bring it within the statute.” 1 Chitty’s PL, 215, (Springfield ed., 1844.) 2 Sw. Dig., 570, 571.
    In all the forms, in Chitty and Swift, and in other form books, there is special reference to the statute, in terms clearly making it known, that the plaintiff grounds his action upon, and intends to bring it within the statute. There are numerous decisions to the same effect. Cross v. U, S., 1 Gall. R., 26. Sears v. U. S., id., 257. Smith v. U. S., id., 261.
    2. When a penalty is given by statute, and a civil action is provided for its recovery, it is essential, not only to set forth the provisions in the statute, but, there must be a direct allegation, that the offence, for which the penalty is given, was committed against the form of the statute: Peabody v. Hoyt, 10 Mass. R., 39. Scroter v. Harrington, 1 Hawks, 192. Barkhamsted v. Parsons, 3 Conn. R., 1.
    3. If the claim is made, that, after verdict,' the allegation that it was, by law, the duty of the defendants to make repairs, &c., shall be considered sufficient, we reply, that the verdict of the jury can not alter the law. That which is not law in an allegation, does not become law, by being found by the verdict of a jury. Lee v. Clark, 2 East, 340. 7 Mass. R., 9. 9 id., 248.
   Waite, J.

The statute relating to highways, requires

the several towns in this state to make and keep in repair all the necessary highways and bridges within their limits, except where it belongs to some particular person, or corporation, to maintain them. And it further provides, that if any person shall receive any injury, by means of any defective bridge or road, the town, which ought to keep the same in repair, shall pay to the party injured just damages. Stat. 1849, p. 416, 417.

It is insisted, on the part of the defendants, that, as their obligation to repair the road in question, was imposed by the statute, and not by the common law, it was incumbent on the plaintiff to aver in his declaration, that such obligation was given by the statute, and that, not having done so, the declaration is insufficient, even after verdict.

It is however alleged, that it was the duty of the-defendants to keep the road and bridge in repair, and that on the trial, that allegation must have been proved, in order to entitle the plaintiff to a verdict. The question now is, whether that allegation is sufficient, without a further averment; that such duty was created by force of the statute.

Wherever a person sustains an injury, in consequence of the neglect of another to perform some duty, required either by the common law, or by a public statute, in an action to recover damages for such injury, he need not state, in his declaration, the manner in whioh that duty was imposed. It is enough for him to state such facts as, under the general law, of which courts will take judicial notice, entitle him to the redress he seeks. The statute relating to highways is a public statute, and as such will be. noticed by courts, although not specially set out in the pleadings.

The rule, however, is different, when the action is brought to recover a penalty given by statute. There, it is necessary to aver, that the acts complained of were contrary to the statute imposing the penalty.

Thus, the liability of towns to support their paupers, residing in other towns, is created by statute, and not by the common law; and yet, when they are sued for such sup: port, it is not necessary that there should be an averment in the declaration, stating the manner in which such liability arose ;—nor is such the practice.

But, where an action is brought to recover a penalty given by the statute, for carrying a pauper into, and leaving him in, a town where he has no settlement, the plaintiff must aver that the acts complained of, were against the statute. Barkhamsted v. Parsons, 3 Conn. R., 1.

Other' cases, decided in our own courts, might be cited, in support of the principles we have stated. Thus, in an action against a turnpike company, incorporated by a private statute, to recover damages for an injury received, in consequence of a defect in their road, which, it .was averred, it was their duty to repair, the plaintiff having obtained a verdiet, the defendants moved in arrest of judgment, because, among other reasons, it was not stated, in what manner that duty was imposed. But the motion was overruled, and the verdict sustained. Goshen & Sharon Turnpike Co. v. Sears, 7 Conn. R., 86.

So in another case, where an action was brought upon the statute relating to fences, to recover the expense of making a part of the divisional fence between the parties, which fence, it was alleged in one count in the declaration (the plaintiff and defendant being adjoining proprietors,) the defendant was bound to maintain and keep in repair; after the issue had been found against the defendant, he moved in arrest of judgment,—on the ground, that the declaration did not state how the obligation arose; but the court held the count referred to sufficient. Sharp v. Curtiss, 15 Conn. R., 526.

Other cases might be cited, of like effect, but these are .sufficient to sustain the decision in the court below. Our opinion therefore, is, that there is nothing erroneous in the judgment complained of.

In this opinion, the other judges concurred, except Storrs, J., who tried the cause in the court below, and was disqualified.

Declaration sufficient.


author: Storrs, J.

text:
    The Windham Bank vs. Norton, Converse & Co.
    In an action on a bill of exchange', against the indorsers, the averments, in the declaration, of a due presentment of the bill and notice of its non-payment, are supported, by evidence of matter of excuse, or a waiver of demand and notice.

      The whole rule applicable to the presentment of a bill of exchange for payment, by the holder, is, that it must be on the day on which the bill becomes due, unless it is out of the power of the holder, by the use of reasonable diligence, so to present it. Failure of such presentment is excused, by any inevitable or unavoidable accident, not attributable to the fault of the holder, provided he make a presentment, as soon as he is able.
    A bill of exchange was deposited, by the holder, in the post-office, in season to reach the place where it was payable, before it fell due, by the regular course of the next mail; and there was no reason to believe, that it would not be there duly delivered. It was actually sent by that mail, but by mistake of the postmaster, where it was mailed, the package containing it was misdirected, and in consequence thereof, was carried beyond its place of destination. The mistake being discovered, the bill was returned and reached the place where payable, on the day after it became due, which was Sunday. On the morning of the following day, the bill was delivered from the post-office to the agent of the holder, and payment demanded of the acceptor. Held, in such case, that the holder of the bill was not chargeable with a want of reasonable diligence.
    This was an action of assumpsit, brought by the Wind-ham Bank, as holders of a bill of exchange, against the defendants, as indorsers.
    The bill of exchange referred to was drawn by George Hobart, of Norwich, in this state, upon Mansfield, Hall & Stone, of Philadelphia, and by them accepted, for $417.26 ; dated January 31, 1849, and payable four months after date, to the order of the defendants.
    The declaration was in the common form, and contained the usual averments of a due presentment of the bill in question, and notice of its non-payment. The defendants pleaded the general issue, and the cause came on for trial, at Brooklyn, October term, 1851. The facts were found by the court, by agreement of the parties, as follows. Said bill of exchange, was, on the day of its date, accepted by said Mansfield, Hall & Stone, “payable at the Farmers and Mechanics’ Bank,” in the city of Philadelphia. On the-day of February, 1849, the defendants procured said draft to be discounted by the plaintiffs, and then indorsed and delivered it to them. During the same month of February, the plaintiffs forwarded said draft, by the United States’ mail, to the Ohio Life and Trust Co., a banking corporation in the city of New York, for collection, and indorsed the same to their cashier, as follows : “ Pay G. S. Coe, Esq., cashier, or order ; ” signed, “ Samuel Bingham, cashier.” The bill, so indorsed, was, in a day or two thereafter, and in due course of mail, received by said Ohio Life and Trust Co. The third day of grace, June 3d, being Sunday,—the draft was actually. due and payable on Saturday, June 2d. During the year 1849, there were two mails per day, each way, between New York and Philadelphia,—those for the latter place, leaving New York, one at nine A. M., the other at four and a half P. M., and both due at Philadelphia} in five hours from their departure. The Farmers and Mechanics’ Bank were the Philadelphia correspondents of the Ohio Life and Trust Co., and communications, by mail, passed between them daily. On the morning of June 1st, the cashier of the Ohio Life and Trust Co. inclosed this draft with others, addressed, in the proper and usual mode, to the Farmers and Mechanics’ Bank, and deposited said letter in the United States’ post-office, at the city of New York, in season for the afternoon mail of that day, for Philadelphia. That letter was duly deposited in said mail, and said mail left New York, and arrived at Philadelphia, in due and usual time; but the mail-bags, containing the letters for Philadelphia, were, by the post-office clerks in the office at New York, marked to be forwarded to Washington, and were, therefore, not delivered at Philadelphia, but carried to Washington. At Washington, the mistake was discovered, and said mailbags forwarded to Philadelphia, which place they reached in the course of Sunday, June 3d. On the morning of the next day, said letter, with the draft inclosed, was delivered from the post-office at Philadelphia, to said Farmers and Mechanics’ Bank, who, by their cashier, refused payment of the same, and between the hours of nine and ten A. M., of the day, placed said draft in the hands of a notary public, for protest. Said notary, between the hours of nine A. M., and three . P. M., of said day, presented said draft at the tcounter of said bank for payment, and received for answer from said cashier, that he was ordered by the accepters not to pay it, and that, had he presented it on Saturday, June 2d, he should have given., him the same answer. Said notary thereupon, on said 4th day of June, in due and proper form, protested said draft, and made out written notices to the drawer, and the several indorsers, of the non-payment of said draft, and inclosed said notices, with the notice of protest, in a letter, and on the same day, deposited the same in the post-office in said Philadelphia, duly addressed to George S. Coe, cashier of Ohio Life and Trust Co., New York, who had' indorsed said draft to the Farmers’ and Mechanics’ Bank, and by whom said letter was, in due course of mail, received, -Said Coe, on the same day in which he received them, inclosed said letter of protest and said notices, except the one to himself, in a letter duly addressed to the plaintiffs, and deposited the same in the city of New York, in season for the next mail. The same was, in due course of mail, received by the plaintiffs, who, on the day of the receipt thereof, inclosed said notices to the defendants, as indorsers, and said notice to said drawer, (his residence being unknown,) in a letter duly addressed to the defendants, and deposited it in the post-office at Windham, in season for the next mail, and the same was, in due course of mail, received by the defendants. Mansfield, Hall & Stone became insolvent, and suspended payment on the 12th day of April, 1849, and on the next day, sent to the Farmers and Mechanics’ Bank, the following notice in writing.

      “E.-N. Lewis, Esq., Cash.
    “You will please pay no.more notes or drafts drawn by us, and payable at your bank, until further notice, as they will not be provided for.
    . “ Yery respectfully yours,
    “Mansfield, Hall & Stone.”
    No further notice was sent, and said bank, from that time forward, acted upon this order, and refused payment of all notes or drafts payable at the bank, by said firm. The business hours of the Philadelphia banks, were, in 1849, from nine A. M. to three P. M. Owing to the miscarriage of the United States’ mail, as above stated, said draft was not presented for payment, on Saturday, June 2d, when it became due, and was never presented for payment at any other time than on said 4th day of June.
    It has been the usage of the banks and merchants of this country, for the last forty years, to. make use of the United States’ mail, in forwarding negotiable notes and bills of exchange, for collection or acceptance. It is the custom of the Windham Bank, and the four Norwich banks, to forward all paper in their hands, payable abroad, within five or eight days after it comes into their hands, without reference to the length of time it has to run.
    The questions of law arising upon these facts, and on such further facts as the jury might rightfully infer, were reserved for the advice of this court.

      Edmund Perkins, for the plaintiffs,
    contended, 1. That the undertaking'of the endorser of a negotiable note, or bill of exchange, is, that the accepter, or maker, will pay the same at maturity, upon due presentment thereof, for that purpose, and that, if the accepters or makers do not so pay it, when duly presented, and the holder thereof shall give the indorser due notice of the fact, then said indorser will pay it. By the terms, due presentment at maturity, and due notice of dishonor, it is not meant, that the indorser is discharged in all cases, when there is a failure to present at maturity, or to give notice in the usual time. If the holder uses due diligence, to make presentment and give notice at the day, and fails, the indorser would still be liable. Story on Bills of Exchange, § 205, 6. 7, 8, note, 259,326, 327, 308, and note. 2 Greenl. Ev., § 195.
    2. It was due diligence in the holder, to use the United StatesUmail, as the means of forwarding this draft for presentment. This is a means, sanctioned by general and long continued mercantile use, for such purpose. Schofield v. Bayard, 3 Wend., 488. There was, also, in this case, due diligence, as to the time of forwarding the draft. If the holder is justified in using the mail at all, there can be no other rule of diligence, as to the time when he may remit, than this,—that he must deposit the draft, duly addressed, in such time that, in the ordinary course of the mail, making full allowance for detention, it will reach the place of payment in season.
    3. The accident which detained this draft was inevitable. When the draft was deposited in the mail, it was no longer under the control of the sender. A superior force had intervened. The contract between the indorser and holder is presumed to be made, with reference to the use of the ordinary mercantile mode of conveyance, the United States’ mail. The officers d*f that mail thus become, and are to be treated as, the agents of both parties, and their negligence can not be charged on either party.
    4. A declaration in the usual form, alleging due presentment and notice, is sustained by proof of any state of facts, which, by the custom of merchants, will excuse a failure to present and give notice. 2 Greenl. Ev., § 197. Norton v. Lewis, 2 Conn. R., 478. Blakely v. Grant, 6 Mass. R., 386. Hopkins v. Liswell, 12 Mass. R., 52. Williams v. Mathews, 3 Cowen, 252. Hinsdale v. Miles, 5 Conn. R., 331.

      Strong and Foster, for the defendants,
    contended, 1. That demand of payment must be made on the day of the maturity of the bill. Story on Bills, § 324, 325, 328. (8th. ed.) And the rule is more strict in favor of the indorser, than the drawer. Story on Bills, § 327.
    2. That the causes, which would excuse the non-presentment for payment, do not avail the plaintiffs. That the party sustains no injury, is not an excuse. Story on Bills, 327,308. Story on Prom. Notes, § 257, 258, 265. The case of Scofield v. Bayard, 3 Wend., 488, is conclusive, in favor of the defendants.
    3. That the declaration should have been varied, according to the fact, excusing the non-presentment.
   Storrs, J.

The defendants first insist, that the averments in this declaration, of a due presentment of the draft in question and notice of its non-payment, must be strictly proved, and that they are not sustained, by proof of the facts set up by the plaintiffs, by way of excuse. Whatever may be the course of authorities elsewhere, it is well settled here, that those allegations are supported by evidence of matter of excuse, or a waiver of demand and notice. Norton v. Lewis, 2 Conn. R., 479, and Camp v. Bates, 11 id., 487, are decisive on this point.

The other and more important question in this case is, whether the plaintiffs are excused for the non-presentment of this draft for payment, on the day when it became due. The last day of grace Being Sunday, it was payable on the preceding Saturday, which was the second day of June, 1849. This question depends on whether the plaintiffs are chargeable with negligence, in not presenting it on that day.

If the agent of the plaintiffs, to whom they sent it, to be forwarded for presentment and collection, and who transacted this business for them, was guilty of such negligence, it is, of course, imputable to the plaintiffs. And it is not important to this question, either that the defendants in fact sustained no damage, by the draft not having been presented for payment, when it fell due, or that it would not have been paid by the acceptor, if it had then been presented. The indorser, on a question of due presentment for payment, is not affected by either of these circumstances. Nor indeed do the plaintiffs claim to recover, on either of these grounds.

The question of negligence here presented depends on the inquiry, whether, under the circumstances of this case, the delay of the plaintiffs’ agent, in not forwarding this draft to Philadelphia, until the last' mail left New York for that place, on the day next preceding that on which the draft fell due, constituted a want- of reasonable or due diligence, in regard to its presentment. We say, under the circumstances, because there is. no positive or absolute rulé of law, which determines within what precise time the holder of a bill of exchange must, in all cases whatever, or at all events, avail himself of the authorized mode of transmission adopted in this instance, to forward such paper for presentment. The general principle, established by all the adjudged cases, as well as the approved elementary writers, is, that reasonable diligence in the presentment of a bill for payment, is required of the holder, and that, therefore, if there has been no want of such diligence, he is excused. Story on Bills, ch. 10. Chitty on Bills, ch. 9, 10. Story on Prom. Notes, ch. 7, § 368. Patience v. Townley, 2 Smith’s R., 223, 224.

In applying this principle, the general rule is, that it must be presented for payment, on the very day on which, by law, it becomes due, and that, unless the presentment be so made, it is a fatal objection to any right’ of recovery against the indorser. But, although this is the general rule, it is not an universal one, and prevails only under the qualification, which is really a part of the rule itself, that there is no negligence or want of reasonable diligence, in not making such presentment. The whole rule, therefore, more properly stated, is, that the presentment must be on the day on which the bill becomes due, unless it is not in the power of the holder, by the use of reasonable diligence, so to present it. By the very statement of this rule, as thus fully expressed, it is plain that, on the question, whether the holder is excused on this ground, for not thus presenting it, or, in other words, whether there was negligence on his part, or a want of reasonable diligence, no absolute or positive rule can, from the nature of the case, be laid down, which shall apply under all circumstances. We have no evidence of any general custom of 'merchants, in regard to the precise time, within which mercantile paper , is usually forwarded, in order to be presented for payment, so that the law merchant furnishes us no guide on this point. And it is clear, that the strict rule of the common law, by which an inability to perform the terms or condition of a contract, by reason of inevitable accident or casualty, constitutes generally no excuse for their non-performance, is not applicable to mercantile instruments of this description. Therefore, the excuse for non-presentment in this case, presents the ordinary question of negligence. That question may, and often does, depend on such a variety of circumstances, or those of such a peculiar character, that it is very difficult, if not impossible, to reduce them to. any fixed or invariable rule. But, in regard to such a question, as applicable to the non-presentment of a bill or note, when it is due, it js considered a well settled rule, that such want of presentment is excused, by any inevitable or unavoidable accident not attributable to the fault of the holder, provided there is a presentment by him, as soon afterward as he is able; by which is intended that class of accidents, casualties or circumstances which render it morally or physically impossible to make such presentment. Judge Story, in speaking of this ground of excuse, says : “ It has been truly observed, by a learned author,” referring to Mr. Chitty, that there is no positive authority in our law, which establishes any such inevitable accident to be a' sufficient excuse for the want of a due presentment. But it seems justly and naturally to flow from the general principle, which regulates all matters of presentment and notice, in cases of negotiable paper. The object, in all such cases, is, to require reasonable diligence on the part of the holder; and that diligence must be measured by the general convenience of the commercial world,’and the practicability of accomplishing the end required, by ordinary skill, caution and effort.” And he cites the remark of Lord Ellenborough in Patience v. Townley, (2 Smith’s R., 223, 224,) that due presentment must be interpreted to mean, presented according'to the custom of merchants, which necessarily implies an exception, in favor of those unavoidable accidents, which must prevent the party from doing it within regular time. (Story on Bills, § 258.)

Applying these principles to this case, we are of opinion that the plaintiffs are not chargeable with a want of reasonable diligence.

No fault or impropriety is imputable to them, by reason of their having selected the public mail,’ as the mode of forwarding the draft in question, to the bank in Philadelphia, where it was payable; It is properly conceded by the defendants, that such mode of transmission was in accordance with the general commercial usage and law, in the case of paper of this description. Indeed, it is recommended in the books, as the most proper mode of transmission, as being the least hazardous, and therefore preferable to a special or private conveyance. But,' although the public mail was a legal and proper mode by which to forward this paper, it was their duty to use it in'such á manner, that they should not be chargeable with negligence, or unreasonable delay. If, therefore, they put the draft into the post-office, at so late a period that, by the ordinary course of the mail, it could not, or there was reasonable ground to believe that it would not, reach the place of its destination, in season for its presentment, when due, we have no doubt that there would be, on their part, a want of reasonable diligence, which would exonerate the indorser. On the other hand, to throw the risk of every possible accident, in that mode of forwarding the draft, upon the holder, where there has been no such delay, would' clearly be most inconvenient, unreasonable and unjust, as well as contrary to the expectation and understanding of the indorser, who is presumed to be aware of the general usage and law, in regard to the transmission, by mail, of this kind of paper, and must therefore be supposed to require only reasonable diligence in this respect, on the part of the holder; and would,'indeed, be inconsistent with the rule itself, which sanctions its transmission in that manner. It has been suggested, that the principle should be adopted, that when the holder resorts to the public mail, .he should be required to forward the presentment, at so early' a period, that if by any accident it should not reach the place of its presentment, in the regular course of the mail, there should be time to recall it, and have it presented when and where it falls due; or that, at least, it should be forwarded in season to ascertain, whether it reached there by that time, and to make such a demand or presentment for payment, as is required in the case of lost bills. We find no authority whatever for any such rule, nor would it, in our opinion, comport with the principle now well established, requiring only reasonable diligence, on the part of the holder, or with the policy which prevails in regard to such commercial* instruments. It would, in the first place, be the means of restraining the transfer of such paperwithin such a limited time as to impair, if not to destroy, its usefulness and value, arising out of its negotiable quality ; and, in the next placé, it would, in many cases, be wholly impracticable. The casualties, incident to this mode of transmission, are most various in their character, and ¿an not, of course, be foreseen; and they might, in the case of forwarding mercantile paper, be such as to render it impossible to ascertain its miscarriage, or to recall it, in season to remedy the difficulty. In the case of the draft now before us, for example, if it had been placed, by the plaintiffs, in the post-office at Windham, where they were located, and transacted their business, for transmission, direct from thence to Philadelphia, on the very day when they became the holders of it, which was between three and four months before it became due, and, by an accident or mistake of the postmaster in the former place, similar to that which occurred in this case, at New York, it had been mailed to one of the most distant parts of our country,’or to a foreign country, (which would not have been more singular, than that it should have been mistakenly mailed, as in the present case, for Washington,) it might not have been practicable for the plaintiffs to learn the accident, or obviate its effect, before the paper fell due. In short, such a rule as that suggested, would be merely artificial in its character, productive of great inconvenience and injustice in particular cases, without any corresponding general benefits, and change the whole course of business, in regard to a most extensive and important class of mercantile transactions. Nor has any other arbitrary or positive rule been suggested, which is not equally obnoxious to the same or similar objections.

The only remaining enquiry is, whether the plaintiffs are chargeable with negligence, for not forwarding the draft in question, by an earlier mail from New York to Philadelphia. It was sent by the usual, legal, and proper mode. It was deposited in the post-office, in season to reach the place where it was payable, before it fell due, by the regular course of the next mail; and there was no reason to believe, that it would not be there duly delivered. It was actually sent by that mail, and, but for the mistake of {he postmaster where it was mailed, in misdirecting the package containing it, would have reached its proper destination, and been received there in season for its presentment, when due. It in fact reached that place, when it should have done; but was carried beyond it, in consequence of that mistake. As that mistake could not be foreseen or apprehended by the plaintiffs, it is not reasonable to require them to take any steps to guard against it. Indeed, they could not have done so, as they had no control or supervision over the postmaster. They had a right to presume, that the latter had done his duty. They could not know, that he had misdirected the package, until it was too late to remedy the consequences. The occurrence of the draft being sent beyond its place of destination, was, therefore, so far as the plaintiffs were concerned, an unavoidable accident. It happened, not in consequence of any delay of the plaintiffs, in putting the draft into the post-office, at so late a period that it could not, or probably would not, reach its destination in due season, but merely in consequence of the act of the official to whom it was properly confided, done after it was properly in his charge, by the plaintiffs, for transmission. The accident, moreover, was of a very peculiar and extraordinary character, and quite different from those which are ordinarily incident to that mode of transmission, and against which it would be extremely difficult, if not- impossible, to guard. It would have been equally- liable to occur, at any time, when the draft should have been placed in the post-office. It was not owing, in any sense, to the fault of the plaintiffs, but solely to. that of the postmaster. Under these circumstances, we do not feel authorized to impute any blame or negligence to the plaintiffs. We are, therefore, of opinion, that judgment should be rendered for the plaintiffs.

In this opinion the other judges concurred.

Judgment for the plaintiffs.


author: Hinman, J.

text:
    The Towns of Windham and Chaplin vs. Litchfield and others.
    Where the county commissioners met, for the purpose of hearing a petition for a highway, on a day appointed by the court, for that purpose, and nearly a month afterward, the court allowed an amendment of the petition, which varied some of the intermediate points, at or near which it was proposed to be built, but did not alter its general route, or vary its termini, and said commissioners, at the same term of the court, subsequently, made their report, laying out a highway, as prayed for in such amended petition, stating therein, that they had viewed said highway, and heard the parties and all persons interested in said petition, which report was accepted by the court; it was held, I. That said amendment was within the meaning of the statute relating to “ civil actions,” (Sec. 102,) and that the allowance of the same was discretionary with the court; 2. That it was no ground for setting aside such report, that said amendment was allowed at so late a stage in the proceedings ; 3. That the fact, that the time fixed for the commissioners to meet, was prior to the session of the court at which such amendment was allowed, was not of itself sufficient to show, that the respondents had no fair opportunity to be heard, on the subject of such petition, especially, as such inference was directly contradicted by the report.
    Irregular and improper conduct, on the part of county commissioners, can not be made out by inference, but if such exists, the same must be directly alleged, and proved.
    An application to the county court, to lay out a highway, from a point in one town, to a point in another, was referred to the county commissioners, who made their report, laying out, in two separate and distinct parts, portions only of the highway prayed for, one of which parts was wholly within one of said towns; held, that the county court had jurisdiction of said petition, in the first instance, without a previous application to the selectmen of the town within which a part of said highway was wholly situated, and that the statute did not require the court, either to lay out the whole road prayed for, or to dismiss the petition.
    This was a petition, brought to the August term of the county court, for Windham county, 1850, by Andrew J. Litchfield and others, praying for a new highway, to be laid out and established, from the town of Chaplin, to the village of Willimantic, in the town of Windham. At the same term of the eoürt, the petition was referred to the county commissioners, who were directed, by said court, to meet, for the purpose of hearing and deciding the same, on the 18th day of November, 1850. At the next term of said court, holden in December following, the petitioners moved an amendment to the petition, changing the location of the proposed highway, at certain intermediate points between its termini. To the allowance of such amendment, the town of Chaplin consented, but the town of Windham objected ; the court overruled the objections, and allowed the amendment. At the same term of the court, after the allowance of the amendment, the 'commissioners made their report, stating therein, that they proceeded to view said proposed highway} and inquired into the common convenience and necessity thereof, and having heard the parties and all person's interested in said petition, found those portions of said proposed new highway thereafter laid out by them, to be of common convenience and necessity; and thereupon laid out two separate portions of said proposed highway, one of which lay wholly in the town of Windham, and the other in the town of Chaplin. Against the acceptance of this report, the town of Windham, one of the respondents, remonstrated, stating, as grounds of remonstrance, the following matters, viz. •
    1. That the petition prayed, that a highway be laid out in the town of Chaplin ; that, when it was served on the towns of Windham and Chaplin, and at the August term of the county court, 1850, when an order was made, fixing the time and place for the meeting of the commissioners, and when said commissioners met, to act, it prayed for no other road to be laid out and established, and in no other direction, than the one originally embraced therein ; that, at the December term of said court, 1850, said petition was, without consent of the inhabitants of said town of Windham, or of any one authorized to act or agree in their behalf, and after remonstrance duly interposed by said town, amended and altered, in a material point, which amendment was allowed by the court; that after said amendment was allowed, the commissioners made their report to the court, laying out said road, and that a large portion thereof, in said town of Chaplin, was laid over ground not embraced in said petition, prior to the time when it was so amended, and whereon, until the time of such amendment, they had no power or authority by law, to lay said road.
    2. That, in order to lay out said road, as prayed for, by both said original and amended petitions, it was necessary to terminate the eastern section of the same, at the west end thereof, at the dividing line, on the east side of the town of Mansfield, in the county of Tolland, a portion of said towm of Mansfield extending southerly, to a great distance, between the eastern and western sections of said road, as prayed for in said petition ; that the western section of the road prayed for and laid out, was wholly within the town of Windham, and entirely separated from any portion of said road, as prayed for and laid out, easterly of said Mansfield ; that the power of laying out that portion of said road, lying westerly of said Mansfield, between the same and the village of Willimantic, belonged, by law, to said Windham, and it had no connection with the eastern portion, but was separated therefrom, by a portion of the county of Tolland, and neither the county court, nor said commissioners, had jurisdiction in the matter, until after application duly made to the selectmen of said Windham, and their refusal so to lay out the same, and that no application had ever been made to said selectmen, to lay out the same, nor had they ever refused so to do. ' .
    n answer to this remonstrance, the petitioners averred, that, as to the first objection, the same was insufficient in the law ; and that the allegations stated in the second objection were in part, untrue, or if true in part, were insufficient in the law.
    Upon the issues thus formed, the court accepted the report, and found, that the first ground of remonstrance was insufficient in the law; and, in relation to the second ground, found the following facts : that there was no absolute and positive necessity for laying out the highway prayed for in the petition, either before or after the amendment, in such manner that the eastern section of the same, at the west end thereof, should terminate at the dividing line of the east side of said town of Mansfield; but that said road might have been laid out in said towns of Chaplin and Windham, though by a route of great circuity, had the commissioners deemed it expedient so to do, and also, that the whole of the western section of said road, as laid out, lay in the town of Windham, and was entirely disconnected with the other section of said road, as laid out, and that the selectmen of said town of Windham had never been petitioned or requested, in any manner, to lay out any highway over or near said route in said Windham; and that the facts, as set forth, were insufficient in the law, to authorize the court to reject and set aside the report. The report having been accepted by the court, the towns of Windham and Chaplin, the original respondents, thereupon brought a writ of error to the superior court, at its October term, 1851, when the questions arising thereon were reserved for the advice of this court.

      Welch and Carpenter, for the plaintiffs in error,
    contended, 1. That the amendment allowed by the county court, changed the ground of action, and therefore could not be legally allowed. Peck v. Sill, 3 Conn. R., 157. Peck v. Bacon, 18 Conn. R., 377. The report, without amendment, could not be accepted, in part. It must be accepted or rejected, entire. Winchester v. Hinsdale, 12 Conn. R., 88. The commissioners had never viewed the proposed road, after the amendment was allowed, and the plaintiffs in error have had no opportunity to be heard.
    2. That each section of said road was laid out, entirely, in one of the towns of Windham and Chaplin, and the report therefore, showed no necessity of a road from town to town. The selectmen of the towns must be first required to layout the same, before application to the county court. Stat., 1849, p. 422.

      A. A. Burnham, for the defendants in error,
    contended, 1. That the allowance of an amendment, in a particular case, within the general power of the court, is not a ground of error. Merriam v. Langdon, 10 Conn. R., 460. It is the plaintiff’s right, to make any amendment, at any time, which does not change the forrmor ground of action, subject to the payment of costs, after the first three days, at the discretion of the court. Stat., 1849, p. 77. Whether this amendment did change the ground of action, must, from its character, depend upon the facts, as they appeared before the county court, on the motion to amend. Nothing appears upon the record, to show that the ground of action was changed, or that the route of the road, as prayed for, was essentially changed, by the amendment.
    2. That the amendment affected only that portion of the road located in Chaplin, and that town having, upon the record, agreed, that the same might be made, can not, now, repudiate such agreement. The town of Windham has no right to complain of an act done by virtue of such an agreement, her interests not being at all affected thereby. Windsor v. Field, 1 Conn. R., 283. The interests of the two towns, as to the location of the road in their respective limits, are entirely separate and distinct.
    3. That the petition asked for a road running from a point in the town of Chaplin, to a certain point in the town of Windham, and as such, was clearly within the jurisdiction of the county court, although the towns had not been first applied to. Stat., 1849, p. 422. The commissioners are not bound to follow minutely the route described in the petition : they must take the general route prayed for, but may exercise their own judgment, as- to the particular location of any portion. Windsor v. Field, 1 Conn. R., 279.
   Hinman, J.

We think the amendment of the petition,

allowed by the county court, in this case, did not change the ground of action, within the meaning of the statute “for the regulation of civil actions,” () 102;) and was, therefore, within the discretionary power of the county court. The effect of the amendment was not to change the general route or termini of the road prayed for, but only to change some of the intermediate objects mentioned in the application, as points to, or near, which it was proposed the road should be built. Both in the original and in the amended petition, a new road was asked for, from the same point in Chaplin, to or near the depot in Willimantic; and to obtain this was the general object of the petition. The intermediate points were mere incidents to this general object ; whether it would be proper for the road to strike one or more of them, did not depend so much upon the necessity of the road itself, between the termini, as upon a variety of other circumstances,—such as the nature of the ground, and the value of it, which would have an important bearing upon the expense of building the road,—so the probable accommodation it would give to the public travel to any intermediate village, or place between Chaplin and Willimantic, would be a proper circumstance to be considered. Undoubtedly these circumstances have an important bearing upon the question, as to the necessity for the new road, but they are rather incidental to the general object, which was, as we have said, to obtain a new road from Chaplin to the village of Willimantic; and, in applications of this sort, to tie up the parties and the commissioners, so as to make it necessary to strike every intermediate monument mentioned in the petition, without any possible relief, by amendment, or otherwise, would be vexatious in practice, and, we think, wholly unnecessary. It is claimed, however, that the amendment was allowed, at too late a stage of the proceeding, after the hearing before the commissioners. Hence, it is inferred, that the commissioners never viewed or examined the route proposed in the amended petition, and the plaintiffs in error had no opportunity to be heard thereon. That the commissioners did not examine the road, which they surveyed and laid out, is a fact which can not be made out by inference,-in such a case as this, where the report of the commissioners shows that they did examine it. The inference is directly contradicted by the report, and, in regard to the claim, that the plaintiffs in error had no opportunity to be heard before the commissioners; on the route where the road was laid, that, too, is contradicted by the presumption, that the commissioners acted fairly and not corruptly ; and to infer, that they gave the plaintiffs no fair opportunity to be heard before them, would be an impeachment of their integrity, which ought not to be made out, by inference. Nolis it to be presumed, that a claim of that sort would not have been made to the county court, if there was any foundation for it, in fact. It resolves itself, therefore, into a question, whether the fact, that the time fixed for the commissioners to meet on this subject, was prior to the session of the county court, at which the amendment was made, is itself sufficient to show, that the parties had no fair opportunity to be heard on the subject matter of the application. The meeting of the commissioners was fixed for the 18th of November, and they met on that day. That was about a month before the term of the court, at which the amendment was made ; but how long they were engaged in the examination, does not appear. The record only shows, that after the amendment was made, “ they came into court, and made their report.” We do not, however, rely on this circumstance. The amendment related back to the commencement of the suit, and the petition, in the judgment of law, was, from its commencement, as it is now. It is true, this is a fiction of law, and, for that reason, would not be suffered to operate unjustly upon the respondents; and could they have shown to the county court, either that the commissioners had not examined the road prayed for, or had not suffered them to be heard upon it, that would have been such “ irregular and improper conduct” on the part of the commissioners, as would have required that their report be set aside ; and for the very reason, that it is “ irregular and improper conduct,” it ought not to be made out by inference, but should be alleged and proved.

But, again, it is claimed, that, as the commissioners did not lay out the whole road prayed for, and, as what they did lay out, was not one continuous portion, extending into both the towns of Chaplin' and Windham, but, on the contrary, they laid out two separate and distinct parts of the road, and in such a manner that the southern or eastern portion was all of it in the town of Windham, therefore in regard to this portion of the road, the selectmen alone had jurisdiction, in the first instance, to lay-it out; on the ground, that it was not a road from town to town, or from place to place in different towns, which might be acted upon by the county court, in the first instance, without any previous application to the selectmen. This is not an objection to the jurisdiction of the county court, as the case was presented by the plaintiffs, in their petition. The petition asked for a new highway from Chaplin to the village of Willimantic, which was from “ town to town,” within the letter and meaning of the statute on this subject, and not from place to place, within the same town. Stat., 1849, pp. 422, 424. The county court, then, having jurisdiction of the application and the subject matter of it, were not, as we think, so bound by the application, that they must lay out the whole road, or dismiss the cause altogether. Such a construction of the statute would be unreasonable. Undoubtedly it must be a case where a road is wanted from town to town, in order to justify an application to the county court; and if it appeared here, that the road laid out, or either part of it, was not wanted, as a part of such road, that might be a ground on which the county court might dismiss the case. But we do not think this fact appears, from the mere circumstance, that the road is laid out in separate, distinct parts, some of which are located wholly in one of the towns. If it was not possible, in the nature of things, that pieces or parts of new road, thus located, should, when completed, form, with other means of communication, one continuous road from place to place, there might be ground for the objection. But it is obvious this is not so. Two parts of the same road 'may be separated by a navigable stream, and connected only by a bridge or ferry, over which the towns have no control. This ■ would not prevent an application to the county court, to lay out such a road, although the two parts might each be in a single town. So the two separate parts, as we suppose was the cáse here, might be connected with other roads, already built, in such a manner, that the separate parts, with the roads already established, would form one continuous road from town to town. We see no objection, in such a case, to an application to the county court, to lay out such parts or pieces of road. So far as the required road, from town to town, has already been built, there is no necessity for laying it out a second time ; and, so far as the new parts are concerned, they may not be required or needed, as mere town roads. We think, then, that in such cases, it is proper to apply to the county court, in the first instance.

It is to be borne in mind, that the original application here, was for a road from town to town. As such, it was referred to the commissioners, and, as such, they reported upon it, finding different parts of it necessary, and other parts not necessary.

For what reason some .portions of it are not required, the commissioners do not say, and, of course, it does not appear. It may be for a reason perfectly consistent with the fact, that the two parts are wanted, as connecting links in a road, such as was asked for from Chaplin to Willimantic, and, as the two parts were laid out under such an application, it must be presumed they were wanted for that purpose. If such was not the fact, we think the defendants should have alleged and shown it.

We, therefore, advise the superior court, that there is no error in the judgment of the county court.

In this opinion, the other judges concurred.

Judgment affirmed.