text:
    Card vs. The President, Directors and Company of the Quinebaug Bank.
    The plaintiff, under an agreement with the owner of land, which was encumbered by a mortgage to the defendant, erected buildings on such land, which enhanced its value $-, and to perfect -his lien upon said premises, filed his certificate with the town clerk of the town in which said land was situated, pursuant to the requirements of the act for “ securing to mechanics a lien on land and buildings.” The owner having afterwards further incumbered said land by other mortgages, the defendant, by purchase and foreclosure, obtained a clear title to said premises, except as against the plaintiff. On a bill in equity, praying for general relief, but which contained no offer to redeem prior incumbrances ; held, that such bill ought to be dismissed.
    This was a bill in chancery, brought by Simeon W. Card, against the President, Directors and Company of the Q,uinebaug Bank. The facts in the case appear from the report of the committee, appointed by the court to ascertain them. They are substantially as follows':
    About the first day of October, 1849, the plaintiff, under a contract with one Tarbox, commenced building a dwelling-house on land owned by said Tarbox, situated in the town of Lisbon, and then in his possession. The plaintiff furnished all the materials for said house, and completed the same, on the eighth day of May, 1848. The stipulated price for building said house and furnishing said materials, was eight hundred and twenty-five dollars.
    On the 23d day of said May, the plaintiff filed his certificate with the town clerk of Lisbon, in all respects according to law, and claiming a lien on the house, and the land on which it stood, for eight hundred and seventy-five dollars.
    On the 15th day of March, 1847, the plaintiff entered into another contract with said Tarbox, for the building of a carpenter’s shop, on a portion of the same premises, under which he proceeded, until he had expended thereon, in labor and materials, five hundred dollars, but never entirely completed said shop. The land, on which said two buildings were erected, formed part of a large tract, described and set forth in the plaintiff’s bill, on which was a valuable water privilege, with an establishment for manufacturing cotton cloth, and a number of dwelling-houses and other buildings, and costing originally, more than seventy thousand dollars.
    When the plaintiff commenced work upon said two buildings, said estate was encumbered by a mortgage to the Norwich Savings Bank, for the sum of ten thousand dollars, and a mortgage to the defendants, for fifteen thousand dollars.
    The dwelling-house, when completed, was worth eight hundred and seventy-five dollars, exclusive of the piece of land on which it stood, (which was worth fifty dollars,) and it increased the value of said manufacturing estate eight hundred and seventy-five dollars. Said carpenter’s shop, when the plaintiff ceased work thereon, increased the value of said estate five hundred dollars.
    Prior to the 16th day of October, 1850, the Savings Bank foreclosed their mortgage, making all subsequent incumbrancers parties, except the plaintiff, and getting a clear title, except as against him. On said 16th day of October, the Q,uinebaug Bank paid the Savings Bank the amount due on their mortgage, took a release deed from them, and went into possession of the premises. Prior to the same day, said bank had foreclosed all incumbrancers, subsequent to themselves, except the plaintiff, and said decree had taken effect. Said bank continued in the possession of said estate until-1852, when they sold the same for twenty-seven thousand five hundred dollars. The income therefrom, while in their hands, was not sufficient to pay the expense of taking care of the same and the money advanced for the insurance of the buildings.
    During said time, the plaintiff' was permitted by them to lease said dwelling-house, and he received in rent, part payment and extinguishment of his said lien of one hundred and twenty dollars. But he received nothing beside said sum for the erection of said buildings.
    The value of said estate in the spring of the year 1848, when the plaintiff finished his work under said contract, was thirty-five thousand dollars. From that time, until the sale of the property at public auction, the same gradually depreciated in value. Its value, when it went into the possession of said bank, was not proved, but in the management and sale of said property, said bank acted in good faith, and there was no proof that, at any time, while the property remained under the control of said bank, they were offered, or could have obtained for it, a larger sum than it sold for, at public auction, as aforesaid.
    The committee further found, that after the first day of October, 1847, when the plaintiff commenced work under said first mentioned contract, and before the first day of April, then next following, said Tarbox mortgaged said factory estate, in connection with other lands in said Lisbon, to sundry other persons, to secure debts, amounting, in the whole, to fifteen thousand five hundred dollars; which debts were purchased by said bank, of the -several mortgagees, and transfers taken of the same, with the several mortgage securities, to themselves, and were still due from said Tarbox and remained the property of said bank.
    The court accepted the report of the committee, and reserved the case for the advice of this court.
    Foster, for the plaintiff.

      Edmund Perkins and Halsey, for the defendant.
   Hinman, J.

The plaintiff’s bill, with the finding of the committee, shows a case, which would entitle the plaintiff to redeem all the incumbrances, which are prior to his lien, on his offering to do so. But he makes no such offer, and we do not understand that he has any intention of redeeming. He asks that the prior incumbrancers be compelled to redeem him. This reverses the settled order in which parties, having incumbrances upon the same property, have right to redeem, or are bound to do so, and is unprecedented. The bill must be dismissed.

In this opinion the other judges concurred, except. Storrs, J., who gave no opinion, having been absent when the cause was argued.

Bill dismissed.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Bennet vs. The Town of Canterbury.
    Where the town of 0 paid the expenses of restraining and confining a destitute lunatic, incurred under proceedings instituted on a complaint to a justice of the peace, and founded on the thirteenth section of the statute concerning idiots, lunatics and spendthrifts ; in an action against the lunatic’s father, who was of sufficient ability to pay the same, it was held, that said town was liable for such expenses, and therefore, that their payment of the same was not voluntary, and that they might recover.
    Where the declaration in such action alleged, that the complainant informed such justice of the peace that said lunatic then was a resident of said town, that it was unsafe for him to go at large, and that he was at large, and from the entire proceedings before the j ustice, which were set forth in the declaration, it appeared that they were founded on said thirteenth section of the aforesaid act, and the jury returned a verdict in favor of the plaintiffs; if was held, that such declaration was not insufficient, either on the ground that it did not aver that said lunatic was going at large in said town of C, or because it did not state in terms, under which section of said act such expenses were incurred.
    A NEW trial having been refused in the ease of Bennet v. The Town of Canterbury, after a verdict in favor of the plaintiff, (see 22 Conn. R., 623,) the defendant* then brought the present writ of error to this court to reverse the judgment of the superior court, in said cause, on the ground of the insufficiency of the plaintiff’s declaration. It was averred in the declaration, that the complaint to the magistrate, informing him that the alleged lunatic was dangerous and unfit to be without restraint, upon which the proceedings set forth in said declaration were founded, was brought by Comfort S. Hyde, of said Canterbury. The other material facts in the case are sufficiently stated in the report above referred to, and in the opinion of the court.

      Foster and Tyler, for the plaintiffs in error, contended,
    1. That the declaration was materially and substantially defective. First, because it did not allege, nor did it in any way appear from it, that the expense for which the plaintiff’s action was brought was incurred under the fifteenth section of the act concerning idiots, lunatics and spendthrifts, or either of the three next preceding sections of the statute. And it is only for expenses thus incurred that relations are liable.

      2. That the declaration is bad, for uncertainty in two particulars, to wit: ás to the place where the lunatic was at large, and in relation to the town where he belonged; for it contains no allegations as to either. The materiality of such allegations will appear from the phraseology of the statute, sections 13 and 15. Thus, by the provisions of the act, complaint is to be made “ to a selectman of the town where the lunatic shall go at large, and if proceedings are not had within three days, then complaint may be made, in writing, under oath, to any justice of the peace in such town.” A valid complaint cannot be made to any justice out of such town, and therefore the record must show that, which can alone confer jurisdiction.
    That the person against whom proceedings are had under this statute belongs to a town, is all that renders such town liable for expenses incurred, and the declaration must contain an allegation to that effect, or no evidence can be received, as to where the person belongs, and if such evidence is wanting, no liability can be fixed on any town. Every presumption is against the pleader. For it is to be presumed that every person states his case as favorably to himself as possible. 1 Sw. Dig., 617. Co. Lit., 303.
    3. That the declaration shows the money sought to be recovered, .to have been paid voluntarily by said town of Canterbury, and without any obligation on the plaintiffs to pay the same.
    There are three sources whence any sum of money expended under the 12th, 13th, 14th and 15th sections of this statute may be recovered, by those who have incurred the expense. But it is not optional with them upon which of those sources they draw primarily; the statute has regulated that, and as follows, to wit: first, upon the estate of the lunatic, secondly, upon his relations, and finally, upon the town where he belongs. Nor does the statute contemplate the town where the proceedings take place, unless the lunatic belongs there, as liable at all, much less does it contemplate such town as standing between those incurring expense and those bound to remunerate.

      Welch and E. Carpenter, for the defendant in error, contended,
    1. That it was apparent, from a comparison of the provisions of the statute with the declaration, that no averment necessary to be proved, to entitle the plaintiff to recover, had been omitted.
    2. That, if it is not averred in direct terms, that the lunatic was a resident of the town of Canterbury and at large in that town, these facts are fairly inferable from the language used, and therefore, the judgment will not be reversed. At most, there is only a defective statement of facts, and not an omission of any material allegation. 5 Conn. R., 522. Chit. Pl., 412. Sw. Dig., 777.
    3. That if the claim of the plaintiff in error is admitted, the defect relied upon is cured by verdict. 7 T. R., 518. 4 Mass. R., 265. Sw. Dig., 778. 5 Conn. R., 425. 6 Conn. R., 177. 16 Conn. R., 579.

      4. That it was not necessary that it should appear from the declaration, that the lunatic was a settled inhabitant of the town of Canterbury. Neither the phraseology, nor the spirit of the act, require this.
    5. That the expenses incurred by the defendants in error, were in obedience to the requirements of a general public law, and in the discharge of a duty imposed on them by the act in question.
    6. That it was not necessary to aver, that the. expenses incurred by the town were incurred under any particular section of the act in question. It is sufficient, that the action is founded on that act, and that it is within any of its provisions. It would be a novelty in pleading, to name the section. The provisions of the statute extend to insane persons, whether found in the town where they belong, or elsewhere.
   Hinman, J.

This case came before us last year, on a motion for a new trial, and was dismissed, on the ground, that all the objections to the right of the town to recover appear upon the face of the declaration, and could only be taken advantage of, by motion in arrest, or writ of error. See 22 Conn. R., 623. As it now comes before us on a writ of error, it is necessary to look into the declaration, to see whether the plaintiff1 has any cause of action; and, if so, whether it is stated with sufficient precision to authorize the judgment which has been rendered upon it.

The action is against the father of a lunatic and distracted person, to recover the expenses incurred by the town, in certain proceedings which were had for the purpose of restraining the lunatic from going at large, on the ground that his being suffered to do so was dangerous to the persons and property of others. The proceedings were bad under the statute concerning idiots, lunatics and spendthrifts. Rev. Stat., p. 434.

The sections of the statute, which are material, are the 12th, 13th and 15th. By section 12th it is provided, that if any lunatic or distracted person, who is dangerous and unfit to be without restraint, and may injure others in their persons or estate, shall go at large, it shall be the duty of the civil authority, and selectmen of the town, where such lunatic, or distracted person belongs, or resides, to order him to be confined in some suitahle place; and if the person or persons, under whose care such lunatic or distracted person shall be, or who are bound to provide for or support him, shall refuse or neglect to confine him, in such place and manner, as sraid civil authority and selectmen shall direct, then said civil authority and selectmen shall take proper and effectual means to prevent him from going at large, and for his confinement and support in some suitable place.

Section 13th provides that, whenever any lunatic or distracted person shall go at large in any town in the state, any person may make complaint thereof to any one of the selectmen, or civil authority of said town, and -if the selectmen &c. shall not, within three days thereafter, proceed with such lunatic, agreeably to the 12th section, then such person may make complaint to any justice of the peace in such town, informing him that such lunatic is dangerous, and unfit to be without restraint; and thereupon it is made the duty of the justice, to cause the lunatic to be brought before him, and on his finding him to be dangerous, and unfit to be without restraint, he may order him to be confined in some suitable place, for such time as he shall deem proper. The material part of the 15th section, so far as this case is concerned, provides that the expenses, incurred under the sections alluded to, and also under another section of the same act, shall be paid out of the estate of such lunatic, if he has any; if not, by his relations, if he has any of sufficient ability liable by law to support him; if none, by the town to which he belongs.

The proceedings, which were had in respect to this lunatic, were under the 13th section of the statute, and the claim is, that they were not instituted or prosecuted on behalf of the town, or by any of its officers; and any expenses of the prosecution, which the town may have paid, stand upon the footing of voluntary payments, for which no recovery can be ' had. In this connection, the plaintiff in error insists that the original proceedings were founded upon the 13th section entirely, and that we must look to that alone to see whether the town, or its officers, as such, had any authority to interfere in them. We think this too narrow a view of the case. We can only give a construction to this section, by comparing it with what precedes, and succeeds it, and by taking into consideration the scope and object of the whole statute. The 12th section makes it the duty of the civil authority and selectmen of the town where a lunatic belongs, or resides, who is dangerous and unfit to be at large, to order him to be confined in some suitable place; and if the persons, under whose care such lunatic may be, neglect to confine him, according to the order, it is then made their duty to take effectual means both for his confinement and support. In doing this, there will necessarily be expenses incurred, and we think it most obvious that the legislature intended that these expenses should, in the first instance, be paid by the town, whose agents the selectmen are, and within whose limits all the members of the board of civil authority reside. But there is the same reason why the expenses, under the 13th section, should be paid by the town, that there is for those incurred under the 12th section. The complaint to the selectmen and civil authority is to enable that board to take the measures provided for, under the preceding section, and it is only on the neglect of any such measures, for three days, that the complaining party can proceed under the 13th section. The proceeding before the single magistrate may fairly enough be viewed as a sort of appeal, from the neglect of duty, by the whole board, under the previous section.

The magistrate, before whom the trial is had, is under no obligation to pay the expenses. ' There is no reason why the party complaining should do it, and where the confinement is attended with much expense, as in this case, in the Retreat at Hartford, he might not be able to do it. Besides, the legislature did not intend to provide for the public safety, by authorizing individuals to complain, and, at the same time, throw such a burden upon them, as would be morally certain to deter them from doing it. The object of both sections is the public security against the acts of the insane. The whole public have the same interest in this, and it is most reasonable that it should be at the expense of it. Towns are public corporations, and, as such, are made liable by law, in many ways, to sustain the police of the state within their limits, as a part of their duty in this respect, we do not doubt that the legislature intended they should be at the expense of proceedings like these.

It is said, however, that it does not appear that it was set forth in the original complaint, that the lunatic was going at large in the town of Canterbury, and consequently, it is claimed, that the magistrate had no jurisdiction of the case.

This is a mistake. The declaration states that the complainant informed the justice, that the lunatic then was a resident of said town; that it was unsafe that he should go at large; “ and that said Homer Bennet was then at large.” It is Dossible, no doubt, for a man to be a resident of a town, and yet temporarily absent from it; but in a legal sense, a man may well enough be supposed to be where his residence is, at least, until the contrary appears.

The declaration does not state, in terms, under which section of the law the expenses were incurred, and this, it is insisted, was necessary. The whole proceeding before the magistrate, is set forth in the declaration, and from this it appears that it must have been' under the 13th section, and, as we have said, that it was rendered necessary in consequence of the neglect of the selectmen and civil authority to proceed under the 12th section ; we do not see what more could be required. Upon the whole, therefore, we find no error in the judgment of the superior court.

In this opinion the other judges concurred, except Church, C. J., who was not present when the case was argued.

Judgment affirmed.


author: Storrs, J.

text:
    Hill vs. Bennett and others.
    Where in an action of trespass quare clausum fregit, it appeared that the defendant’s title to a farm which he claimed embraced the locus in quo, was derived from A, and the plaintiff offered in evidence the declarations of A, referring W, to whom he was about to lease said farm, to G, who was his chief -agent for managing his farm, and directing G to point out said farm to W; it was held, that such declarations were admissible as tending to prove that 0 was the agent of A, for the purpose of designating the bounds of said farm, and that the act of G, in pointing out a boundary, as being in the dividing line between the farm of A and the farm of the plaintiff, was to be deemed the act of A, himself.
    A motion to set aside a verdict as being against the evidence, is not sustained.
    This was an action of trespass quwre clcmsum fregit, brought by Joseph Hill, against Josiah H. Bennett, Abraham Mathewson and Simon C. Mathewson, for breaking and entering the plaintiff’s close and cutting down and carrying away the trees that were growing thereon.
    The cause was tried on the general issue before the superior court for the county of Windham, at the term holden in January, 1854.
    On the trial, it appeared in evidence that Simon -C Mathewson was the owner of a farm called the “ Mason farm,” purchased of said Bennett a short time before the trespass was alleged to have been committed.

      The plaintiff’s land lay upon the east side of said farm, and the principal question, between the parties, was as to the dividing line between those lands. The wood which the plaintiff proved had been cut and carried away, was taken from either the south-west corner of the plaintiff’s land, or the south-east corner of the Mason farm. The plaintiff claimed, that the south bound of the dividing line was a heap of stones, which he designated as the “runaway-bound;” and if he could establish that as one of his bounds, it would shew that the land from which the wood was taken belonged to him. The defendants denied the existence of any such bound, and its existence became a material point on the trial.
    It was proved, that in January, 1833, the Mason farm was conveyed to one William Almy, of the state of Rhode Island. There was no evidence that he had ever been upon the farm, or knew anything about the lines and boundaries of the same, except what might be inferred from his ownership of the farm. To prove the existence and location of the “runaway-bound,” the plaintiff offered the testimony of Stephen Wilbur, who testified as follows: “ In the spring of 1834, I went to live on the Mason farm. Almy hired me and my family by the month to go there, and told me that Caleb Cook would show me the place, and told Cook to do so in my presence. Afterwards, I went to the farm and Cook showed me the runaway-bound, as one of the bounds of the farm. My business was to cut wood, and cart it to Almy’s factory in Plainfield. He owned a great many farms all about the country, in Rhode Island and Connecticut. Cook was his chief agent in the management of his farming, selling milk, butter, &c. Last fall I went to the farm, and had no difficulty in finding the place where the bound formerly was. Before that time I did not easily find it.”
    The plaintiff offered no other evidence to show that Cook was’ the agent of Almy. The defendants thereupon objected to the admission of the testimony of the witness, on the ground that there was no evidence that Cook was the agent of Almy, for the purpose of designating any bounds between his lands and the plaintiff’s, or that Almy knew where the bounds were. . But the court admitted the. evidence.
    The plaintiff introduced further evidence to prove that the defendants Bennett and Simon C. Mathewson committed the trespass alleged in the declaration, but a detail of the same is unnecessary.
    The jury found a verdict against all the defendants. The defendants claiming that the court erred in admitting the testimony of Wilbur, moved for a new trial and the defendants Bennet and Simon C. Mathewson severally claiming that the jury found a verdict against them respectively, against the evidence, moved for a new trial.

      Tyler and Welch, in support of the motion.

      Cleveland and J. G. Penrose, contra.
   Storrs, J.

It is not questioned that if Almy had pointed out to Wilbur the bound in question, as being in the dividing line between the farms of Almy and the plaintiff, such act would have been admissible in evidence on the part of the plaintiff to show the extent of Almy’s land ; and we are of opinion that as Almy, when he was about to lease his farm to Wilbur, directed Cook to show it to the latter for his information, which implied that Cook was to inform him of its extent, Almy constituted Cook his agent for that purpose, and that the act of Cook, in pointing out to Wilbur the bound, is to be deemed the act of Almy himself, and that, therefore, it was equally admissible in evidence as if it had been done by the latter, personally. The evidence of Wilbur was, therefore, properly admitted.

The proof to show that Abraham Mathewson and Ben-net, two of the defendants, were guilty of the acts complained of, was so direct and explicit, that there is no color for the claim that, as to them, the verdict was against the weight of the evidence. Bennett indeed contradicted the witness introduced by the plaintiff, on that point; but it was for the jury to weigh their testimony, and there is no ground on which we can say that they came to a wrong conclusion. The testimony to implicate Simon C. Mathewson, the other defendant, in those acts, is much less convincing. It conduced, however, to show that the acts of Abraham Mathewson were done by his direction or authority; and although if it had been for us to pass upon its weight, we should probably have come to a different conclusion from that of the jury, we do not think that in the exercise of that discretion, by which we are governed on such a question, the circumstances are such that we ought to interfere, and grant a new trial on the ground that the verdict is palpably against the. weight of the evidence.

We do not advise a new trial.

In this opinion the other judges concurred, except Waite, J., who tried the cause in the court below, and Church, C. J., who was absent.

New trial not granted.


text:
    Baldwin and others vs. Atwood.
    Where a deed of land stated in the premises that the land was conveyed “ in trust, for the uses and purposes herein after mentioned,” and in the habendum, that the grantees were “ to have and to hold said land in trust, that they shall at all times forever hereafter permit such ministers and teachers belonging to the Methodist Episcopal Church in the United States of America, as shall be duly authorized, from time to time, by the general conference of the ministers and teachers of said church, or by the annual conference authorized by the general conference, to preach and expound God’s holy word in the house, or place of worship, which has been erected on said land for the use of the members of said church;” and said deed subsequently prescribed the mode of supplying trustees in the place of the grantees, who might die or cease to be members of the church, for whose benefit the grant was made, in further trust and confidence; it was held, that such deed was not to be construed as a deed on condition, in which case the breach of it would be followed by a forfeiture of the estate, but as a deed in trust, cognizable in chancery.
    Therefore, where the land described in such deed was afterwards conveyed, with the consent of the cestuis gue trust, and sold by the trustees for other purposes, it was held, that such disposition did not operate as a forfeiture of the estate to the heirs of the grantor.
    The plaintiffs brought their action of ejectment against Warren Atwood, for a tract of land, situated in the town of Windham.
    The cause came to the October term of the superior court for the county of Windham, and was reserved for the advice of this court, upon the following agreed statement of facts.
    On the 17th day of December, 1831, Daniel Sessions, the ancestor of the plaintiffs, conveyed the land in question, by a deed duly executed, to Apollos Perkins, William C. Boon, Luther Jacobs, Jonathan Fuller, Ralph Williams, Asa White, Leonard R. Dunham, Sydney Cook and William C. Boon, Jr., and their successors, trustees, which deed was for the consideration of- dollars, and which in the premises stated that said land was conveyed “ in trust, for the uses and purposes herein after mentioned.”
    After describing the premises conveyed, said deed proceeded as follows:

      “ To have and to hold, the above described piece of land, unto the said grantees and their successors in office forever, in trust that they shall, at all times forever hereafter, permit such ministers and teachers, belonging to the Methodist Episcopal Church in the United States of America, as shall be duly authorized, from time to time, by the general conferences of the ministers and teachers of the said church, or by the annual conference, authorized by the general conference, to preach and expound God’s holy word, in the house or place of worship which has been erected on the said land, for the use of the members of said church, and in further trust and confidence, that as often as any one or more of the trustees herein before mentioned, shall die, or cease to be a member, or members of said church, according to the rules and discipline of the same, then, and in such case, it shall be the duty of the stationed minister, or preacher, authorized as aforesaid, who shall have the pastoral charge of the members of the said church, to call a meeting of the remaining trustees, as soon as conveniently may be, and when so met, the said minister or preacher shall proceed to nominate one or more persons, to fill the place or places of him, or them, whose office, or offices, have been vacated as aforesaid, provided the person or persons so nominated, shall have been one year a member or members of said church, immediately preceding such nomination, and be at least twenty-one years of age; and the said trustees so assembled shall proceed to elect, and by a majority of votes appoint, the person or persons so nominated, to fill such vacancy, or vacancies, in order to keep up the number of nine trustees forever, and in ease of an equal number of votes for and against the said nomination, the stationed minister or preacher shall have the casting vote. And the said Daniel Sessions doth, by these presents, warrant and forever defend, all and singular, the before mentioned and described lot or piece of land, with the appurtenances thereto belonging, except as aforesaid, unto them, the said Apollos Perkins, William C. Boon, Luther Jacobs, dist Episcopal church conveyed said premises., by deed of warranty of that date, in the usual form, to the defendant, and from and after said 11th day of July, 1850, said trustees and said Methodist Episcopal church abandoned all right or claim to said premises, and to the use or occupancy thereof. And the same continued to be used by the defendant for secular purposes only. The ministers and teachers belonging to the said Methodist Episcopal church in the United States of America, duly authorized from time to time, by the general conference of the ministers and teachers of said church, or by the annual conference, authorized by the general conference, have never, since said sale to the defendant, used, or applied to use, said premises, to preach or expound God’s holy word therein.
    The church formerly standing thereon, has been changed and appropriated for stores, offices and mechanics’ shops, and has ever since said sale, been used exclusively for secular purposes: all which was done by the knowledge and consent of said Methodist Episcopal church, and the trustees of said church.
    Said trustees and said Methodist Episcopal Church purchased other lands, and erected thereon another house, or place of worship, for their use, and permanently abandoned the premises mentioned in said deed, for all the uses mentioned in said deed of Daniel Sessions to said trustees.
    In the sale of said property to said Atwood, in July, 1850, the regulations and requirements of the discipline of the Methodist Episcopal church, in relation to sales of church property, were complied with.
    At the time of the commencement of the present suit, and for a long time previous thereto, the defendant was, and ever since has continued, in possession of the premises in question, and deforced, and kept the plaintiffs out of the same. The plaintiffs, a few days previous to the commencement of their suit, made a legal entry into and upon said premises, by virtue of a claimed determination of said trust, and of a claimed forfeiture of said estate, and for the purpose of taking advantage thereof, and demanded possession of the same, and no question was made, between the parties, as to the form-or fact of said entry.
    Said Daniel Sessions died before the commencement of the present suit, and the plaintiffs were his heirs at law.

      E. Perkins and J. H. Carpenter, for the plaintiffs, contended,
    1. That the deed of the premises in question, by the ancestor of the plaintiffs, did not convey an estate in fee, inasmuch as it contained no words of perpetuity.
    2. That the estate conveyed was upon condition. To render an estate conditional, no technical words are necessary, and in the present case, the property having been appropriated to purposes inconsistent with the terms of the trust,. the estate had determined, and the trust ceased, and the estate was forfeited to the heirs of the grantor. Brown v. Brown, 18 Conn, R., 538. Wheeler v. Walker, 2 Conn. R., 196. 2 Cruise Dig., 353.
    Foster, with whom was Arnold, for the defendant, contended,
    1. That the deed of Sessions to the trustees of 'the Methodist Episcopal church, did not convey an estate upon condition, but an estate in trust, in express terms. Such are the express terms of the deed.
    2. That the deed contained no words, showing that any defeasible estate was intended to be created.
    3. That a consideration for the grant, having been paid, and expressed in the deed, there can be no resulting trust.
   Storrs, J.

We are of opinion that the plaintiffs have no legal title to the demanded premises, and therefore, that they have no right to recover.

. It is clear that the estate conveyed by the deed from Daniel" Sessions has not expired by the terms of the limitation contained in it. If there are wanting, in that conveyance, such words of perpetuity as are necessary, in order to pass an estate in fee to the grantees, (a point which it is unnecessary here to determine,) it conveys an estate at least for life to the latter, and as it neither appears, nor is claimed, that any of those grantees have deceased, the property has not yet reverted to the heirs of the grantor, the plaintiffs in this case, but remains in such grantees. Indeed, the plaintiffs claim no title, merely by virtue of the limitation of the estate ■as to its duration, contained in this grant.

But they claim title, on the ground that the declaration, in the conveyance, of the purposes for which the property should be used, created an express condition that they should be so used; that such condition was broken by reason of the appropriation of it to other purposes; and that therefore the estate granted was defeated by such breach, and reverted to the plaintiffs, they having taken the requisite legal steps to avail themselves of the forfeiture incurred by such breach. The defendant, however, insists that, by the just construction of the language used in this conveyance, in reference to the use to which the property was to be appropriated, it was not the intention of the parties, that the estate granted should be defeated by the use of it for other purposes, and that therefore no conditional estate was granted, but that it was an absolute grant, creating only a trust for the purpose specified, to be enforced, if not complied with, by a court of equity, but not followed, in ease of a violation of such trust, by a forfeiture of the legal estate granted, or a reverter of it to the' heirs of the grantor. And we are of opinion that this claim of the defendant is well founded. It is properly admitted, by the plaintiffs, that if the estate granted is not a conditional one, but is only accompanied with a trust, the violation of such trust would not operate as a forfeiture of such estate, under the circumstances of this case, and consequently that they can not recover, for want of a legal title to the demanded premises. The question, therefore, is, whether a condition, or only a trust, was created by this conveyance; and that depends upon the enquiry, whether it appears from the instrument, that it was the intention of the parties to it, that the estate granted should be defeasible on a refusal, or neglect by the grantees, or those holding under them, to appropriate the property to the uses for which it is declared to be granted. The question is one simply of intention, depending on the just construction of the conveyance. No particular words are necessary, in a deed, in order to create a condition; and in the deed before us, any terms would be sufficient for that purpose, if, by a fair construction, they shew that it was the intention of the parties, that the estate granted should be defeated by the misappropriation of the property relied on by the plaintiffs. On examining this deed, we do not think it is susceptible of a fair doubt that it was not intended that the estate should be thus defeasible, and that it was designed by it only to create a mere trust. The latter object is evinced by as clear and appropriate language, as it was in the power of the grantor to 'use, and indeed, by the very technical terms which, in most trust conveyances, are employed to create trusts. In what is termed the premises of the deed, the land is granted “ in trust, for the uses and purposes hereinafter mentioned.” In the habendum, it is stated that it is to be had, and held “in trust” for the purposes which are immediately specified therein; and in the subsequent provision, prescribing the mode of supplying trustees, in the place of the grantees who may die, or cease to be members of the church, for whose benefit the grant is made, “in further trust and confidence” that said provision shall be complied with. And there is an entire absence of not only any technical words, which impart a condition, but of any language whatever which goes, in the least, to shew that any defeasible estate was intended-to be created, unless such intention is deemed to be evinced merely by the circumstance that the uses, for-which the property is granted, are specified. But we have been referred to. no case, and presume none can be found, where the mere declaration, in a grant, of the use to which the property shall be appropriated, has been held to import a condition. In this grant, moreover, it appears that it was made for a valuable consideration, proceeding from the grantees, or those for whose use it was made, and it is quite plain that it was made for the benefit of the latter, exclusively, and not that of the grantor. And it is equally obvious, that the conveyance was intended to be made to the grantees in trust, for those who appear to be beneficially interested in it, because the former could legally take, whereas the latter, not being a corporate body, could not be vested with such a legal title as would effectuate the object of the conveyance.

We therefore advise that judgment be rendered for the defendant.

In this opinion the other judges concurred, except Church, C. J., who was not present when the cause was argued.

Judgment for the defendant.


author: Ellsworth, J.

text:
    The Windham Cotton Manufacturing Company vs. The Hartford, Providence and Fishkill Railroad Company and others.
    The defendants being a railroad corporation, remonstrated against the acceptance of the report of H as a committee in a bill in chancery, because while H was acting as such committee, his wife was a shareholder in an incorporated bank, which bank had stock in said railroad, as security for a loan of money. Held, that H was not disqualified from acting as such committee, on the ground that he was a party to such bill, but was disqualified, as being interested in the event of the suit, if the objection had been taken at the proper time.

      Where, however, such remonstrance did not allege, and it was not shown, that this fact was unknown to the remonstrants; when such committee was appointed; it was held, that the omission amounted to a waiver, and that the report ought to be accepted.
    Two railroad corporations, whose roads were constructed parallel and near to each other, on the northerly side of the plaintiffs’ ware-house, agreed to make and maintain a turn-out or side track for the accommodation of the plaintiffs from either or both said companies’ main tracks to said ware-house, and the plaintiffs claimed, that the turn-out from the track farthest from said ware-house should cross the track of the other road and a single side track be laid from thence to their ware-house", while the defendants claimed that said turn-out should be made on the outer sides of said roads respectively. On a bill in chancery for a specific performance of said contract, the committee to whom the cause was referred, found that a single side-track laid as the plaintiffs required, would, unless managed and used with proper care and prudence, expose the public travel along said railroad to serious danger from collisions and other causes, but if the same were under the supervision of the railroad companies, and a reasonable degree of prudence and care were exercised in its management and use, the danger arising therefrom would be very slight and scarcely appreciable, but did not find that it was indispensable or necessary that said turn-out should be constructed in such mode, nor that some other mode would not answer as well as that. Held, 1. That if the contract required said turn-outs to be made as required by the plaintiffs, the court would not specifically enforce it, but leave the plaintiffs to their remedy at law. 2. That a reasonable construction of said contract, might require said turn-outs to be made as claimed by the defendants, or in some other manner, not proposed by either the plaintiffs, or the defendants. And 3. That there should be further enquiry as to the best mode of doing this.
    This was a bill in chancery, brought by the Windham Cotton Manufacturing Company, against the Hartford, Providence and Fishkill Railroad Company, and the New London, Willimantic and Palmer Railroad Company, to enforce the specific performance of an agreement. The superior court, at the April term, 1853, appointed James A. Hovey, Esq., a committee, to hear the parties, and find and report the facts in the ease. At the next term of the court, the committee, having heard the parties, made his report, finding the following facts.
    Previous to the 29th day of August, A. D. 1849, the defendants, in accordance with the provisions of their charter, had laid out, and located the roads, which they were authorized to make, and maintain, across certain lands of the plaintiffs, in the village of Willimantic, established the grade thereof, and caused the damage done thereby to be assessed, and the amount thereof, being thirty-five hundred dollars, to be paid to the plaintiffs. On the 29th day of August, 1849, the defendants determined to change said location, and grade, and to enable them to do so, entered into the following agreement in writing with the plaintiffs:
    “ The Windham Cotton Manufacturing Company agree to the change of centre line and change of grade, as is described in an agreement, this day made, between the Smith-ville Cotton Manufacturing Company, and the Hartford, Providence and Fishkill Railroad Company, and the New London, Willimantic and Palmer Railroad Company, and that the centre line and roadway, heretofore laid over and across said Windham Manufacturing Company’s land, may be changed to conform thereto, both as to location and grade. And, in consideration of the receipt of three thousand five hundred dollars, by said manufacturing company, from said Hartford, Providence and Fishkill Railroad Company, and of the agreement of each of said railroad companies, to give said manufacturing company five shares of stock in each of their respective railroads, said manufacturing company agree to make, execute, and deliver, within ten days from the date hereof, a good and sufficient deed, in the usual form of conveyance, to said railroad companies, conveying to them jointly, the land over which said new location will be placed, as now agreed herein to be changed, the same to be of such width as may be needful to make, and forever maintain a railroad bed, at its graded surface, of forty feet in width in excavations, and thirty feet in width, at the graded surface, in embankments, with such additional width as may be needful for permanent slopes of earth to such excavations, and embankments, and for necessary drains, and ditches, along said railroads. Said Windham Manufacturing Company are not to erect, or place any building within forty feet of the centre line of said railroads, on either side thereof. Said railroad companies have the right to use a strip of land, not exceeding twenty feet wide, outside of said road bed, on each side of said centre line, to pass and repass, for all necessary purposes of repairing and maintaining said road beds, drains and ditches. The railroad companies are to pay one dollar a rod in lieu of fencing, and said manufacturing company, in consideration thereof, agree to make and maintain good and lawful fences, between their lands and said railroads, and shall make and place no part of such fences within twenty feet of said centre, and shall so place, make, and maintain, such fences, as not to injure the stability of the railroad bed, nor endanger the safety, or increase the expense of the operations of said railroads, or either of them, reserving a right for said manufacturing company to cross said railroads at convenient places, not exceeding three in number, at such times as will not interfere with the use of the same by said railroad companies; said crossings to be made and maintained by said railroad company. Said deed is to be executed and delivered within ten days from date; but if within said ten days from date, said manufacturing company give notice that they prefer submitting to arbitration the question as to amount of damages to be paid for such deed of their lands, the parties bind themselves to submit the matters in difference to the final award of Elisha Harris, late governor of Rhode Island, David Whitman, of the town of Cranston, in said state, Jedediah Leavens, of the town of Norwich, Connecticut; and the parties hereby do submit said question to said arbitrators aforesaid, upon the basis of this agreement; the hearing to be had with as little delay as may be, and so that the award may be made and published, within thirty days from the date hereof. Said manufacturing company are to remove, at their own expense, all buildings standing on any part of said railway location, within twenty days, except the cotton house, which may remain where it is, until the first of January next. Said railroad companies have the right to commence forthwith, the construction of their road-bed across the lands of said company.”
    The land mentioned in said agreement, which was to be conveyed to the defendants, was owned by the plaintiffs, as an estate in fee simple, and was situated near the manufacturing establishment of the plaintiffs. The sum of thirty-five hundred dollars, mentioned in said agreement as a part of the consideration thereof, was the same money paid by the defendants to the plaintiffs, for damages assessed to them, on account of the first location of said railroads, prior to the 29th day of August, 1849.
    Within ten days after the execution of said agreement, the plaintiffs gave notice in writing, to the defendants, that they preferred to submit to arbitration the question, as to the amount which should be paid by the defendants, for a deed of said land, as provided in said agreement, and afterwards, on the 10th of September, 1849, the defendants informed the plaintiffs, that they should not perform, or abide by, the terms of said agreement on their part, and expressed a desire, that some other arrangement between the parties might be made, which would settle and adjust all matters of difference between them. The parties thereupon entered into negotiations, for the adjustment and settlement of said matters, which resulted in a second agreement between them, which was as follows:
    “ Whereas the Hartford, Providence and Fishkill Railroad Company, the New London, Willimantic and Palmer Railroad Company, and the Windham Cotton Manufacturing Company made an agreement, in relation to the rights of way necessary for said railroad companies to have, whereupon to construct their railroads, which agreement was dated at Willimantic, Aug. 29, 1849: and whereas, in a certain contingency, the damages to be paid to said manufacturing company, by said railroad companies, was to be left to the appraisal of three men, named in said agreement: now therefore, to save the expense and delay of an appraisal, and to settle the case finally, and to the mutual satisfaction of all parties interested, we, whose names are hereunto subscribed, agree for the companies, by whom we are respectively employed, as follows:

      “ Said railroad companies are to make and maintain a bank or retaining wall, on both sides of the excavation, from the eastern side or line of said Windham Company’s land, through the meadow, of five feet in height, or to the surface of the ground; from thence to the garden lot, said railroad companies are to make and maintain a bank wall, of two or three feet in height, above the general surface of the ground, on the northerly side of the excavation, and also a wall four and one-half feet in height, or to the surface of the ground, on the opposite side of said railroads; from thence, through the said garden lot, the said railroad companies are to build, and maintain, a bank wall of at least five feet in height, on the northern side of said railroads, and to make a lawful fence on the opposite side of the same; and for the purpose of building said walls, the said railroad companies are to have such old walls in the vicinity as have been agreed upon. Said Windham Manufacturing Company reserve the right to make, at their own expense, a bridge, for foot passengers, over said railroads, so as not to interfere with the operations of the same; and said railroad companies are to make all other needful fences, if any are necessary, to fence their railroads, and to make suitable gates through the same, at two convenient places; the crossings and gates to be made to the satisfaction of said Windham Cotton Manufacturing Company, and said railroad companies agree to make and maintain a turnout or side track, for the accommodation of said manufacturing company, from either or both of said companies’ main tracks, at any time within five years from date, if required by said manufacturing company, and said manufacturing company are not to make any charge for the necessary lands therefor, and said railroad companies are not to pay to said Windham Company any thing for fencing, as stipulated in the before mentioned agreement, as aforesaid, dated at Willimantie, Aug. 29, 1849, and said manufacturing company are released from making, and maintaining, the fences therein named.
    “ All other parts of the before mentioned agreement, dated Aug. 29, 3849, remain in full force and effect.”
    Immediately after said agreement was executed, said railroad companies went into possession of said land, and constructed their railroads across the same, and thereafter continued in the uninterrupted use and occupation thereof. The defendants made the walls, fences, and gates, mentioned in said agreement, as therein provided, but always neglected and refused to give to the plaintiffs, five shares of the capital stock of each of said railroad companies, and to make the crossings in said agreements mentioned.
    In making, and entering into said agreement of the 11th of September, the parties well understood, and it was on the part of the defendants agreed, that the turnout or side track, in said agreement mentioned, if required by the plaintiffs to be laid, should be so constructed, as to enable the plaintiffs to load and discharge cotton, coal and other merchandise, which they might send, or receive, over either of the said railroads, at their store-house; and it was equally well understood between the parties, that if said store-house should be placed, as it subsequently was, on lands south of said roads, the turnout or side track, if required by the plaintiffs to connect with the track of the New London, Willimantie and Palmer Railroad, should cross the track of the Hartford, Providence and Fishkill Railroad, by means of switches, and thus form what is termed a “connection” therewith, and that the same should be extended thence to said store-house. A turnout or side track from the New London, Willimantie and Palmer Railroad cannot be constructed, so as to enable the plaintiffs to load and discharge merchandise sent, or received, by them over that road, at their store-house, or furnish them with the accommodation contemplated by said agreement, unless connected with, or extended in some other mode, across the said Hartford, Providence and Fishkill Railroad. The committee, however,found that a side track, laid or constructed in such a manner, would, unless managed and used with proper care and prudence, expose the public, traveling over said railroads, to serious danger from collisions and other causes; but if the same were.under the supervision of the said railroad companies, and a reasonable degree of prudence and care were exercised in its management and use, the danger arising therefrom would be very slight and scarcely appreciable.
    Soon after the defendants went into possession of said lands, and before said railroads were graded, the plaintiffs gave them notice that they required a turnout of side track, to be made for their accommodation, from both said railroads, as provided in said agreement of the 11th of September; but the defendants neglected, and refused, to make the same. Some time in the month of November, or December, 1850, the New London, Willimantic and Palmer Railroad Company procured the requisite materials and put in the necessary ties and frog, for said turnout or side track, and were about to lay the rails thereof, when they were prohibited from proceeding with, and completing the same, according to the understanding and agreement of the parties, by said Hartford, Providence and Fishkill Railroad Company.
    The committee further found, that said turnout or side tracks, if made according to said understanding and agreement, would be of great value to the plaintiffs; and the want thereof would subject the plaintiffs to much inconvenience in carrying on their business, and be seriously detrimental to their interests.
    On the first day of December, 1851, the plaintiffs prepared and executed a deed, in proper form, conveying to said railroad companies, jointly, the lands mentioned in said agreement of the 29th of August, and exhibited the same to the said Hartford, Providence and Fishkill Railroad Company, on the 13th day of December, 1851, and to the said New London, Willimantic and Palmer Railroad Company, on the 15th day of December, 1851; and the plaintiffs then informed said railroad companies respectively, that said deed was ready for delivery, and would be delivered to them, whenever they performed said agreements on their part.
    But the committee did not find that the deed, so exhibited to the defendants, or any other deed conveying to them said lands, was ever delivered by the plaintiffs.
    At the term of said court, holden in October, 1853, the defendants filed a remonstrance against the acceptance of this report, when the following facts were found by the court.
    Said Hovey, at the time of his appointment as committee, and until the 20th day of August, 1853, was the owner of seven shares of the capital stock of the Phcenix Bank, an incorporated bank, and Jemima L. Hovey, his wife, was the owner pf eight shares of the capital stock of said bank, which were standing in the name of Moses Ensign, as her trustee, until the 7th day of September, 1853, when said trustee transferred the same to her on said books, and, during all that period, said Jemima L. was the wife of said Hovey, and the sole owner of said eight shares in said bank, and the president, directors and company of the Phoenix Bank, during all the period aforesaid, had eighty-five shares of the capital stock of said railroad company, standing in the name of said bank, upon the books of said railroad company, but the said bank never owned said shares, but merely held them as collateral security for moneys loaned. On the 22d day of August, 1853, the parties, by notice of that date, were cited to appear before said committee, at Willimantic, on the 31st day of August, 1853, when and where the parties appeared, and the said railroad company, upon the facts stated in their remonstrance, objected to said Hovey’s acting in said case, claiming that he was disqualified; but said Hovey, notwithstanding the objection, and, although his wife was the owner of stock as aforesaid, did proceed in the trial of said case.
    The questions, whether the facts proved by said superior court were sufficient to set aside the report of said committee, and if said court should be of opinion, that they are not sufficient for that purpose, whether, upon the facts contained in said report, the plaintiffs were entitled to the relief prayed for in their bill, and if so, what relief,—were reserved for the advice of this court.
    Foster, for the plaintiffs.

      E. Perkins and R. D. Hubbard, for the defendants.
   Ellsworth, J.

A question is made, whether the report of Mr. Hovey is not open to objection, inasmuch as, it is said, he was a party in the suit, or at least had an interest in the event of the suit.

It appears that the wife of Mr. Hovey was a stockholder of the Phoenix Bank, during the time he was acting as a committee; her stock stood, a part of the time, in her own name, and before that, in the name of her trustee. The Phoenix Bank was a stockholder of the Hartford, Providence and Fishkill Bailroad Company, holding eighty-five shares, as security for money borrowed. The defendants claim, first, that Mr. Hovey was a party, and could not act as a committee, and secondly, that he was interested as a party, and could not act as a judge or committee man.

We do not think Mr. Hovey or his wife was, in strictness, a party in the cause, however it may be as to interest. For certain purposes, it is true, as in Wood v. Hartford Fire Ins. Co., 13 Conn. R., 210, and in English v. Smith, 221, and other cases, we have held, that where it is necessary in order to take jurisdiction of the case, or to maintain a pure administration of justice, we can look through the charter of a corporation, to the individuals who are united under it, and who really possess its property and franchises; but we do not think that the doctrine has ever been carried, or ought to be carried, to the extent now claimed. Correctly speaking, the stockholders of an incorporated company are not the parties on record; they do not sue, neither are they sued, nor do they employ counsel, or control the suit, nor are they liable for damages or costs, nor are their acts or admissions admissible in evidence; but on the other hand, they may be sued by the company, and may themselves sue, in turn, in all respects as if they were strangers and uninterested. The members of quasi corporations, such as the inhabitants of towns, societies, districts, &c., are in a higher sense parties in a suit; for they may appear as parties, may employ counsel to conduct the cause, and are personally liable for damages and costs. Atwater v. Woodbridge, 6 Conn. R., 223. McLoud v. Selby, 10 Conn. R., 390. In other corporations, there is sometimes, as we have said, in order to take jurisdiction,a necessity to look through the charter, as was done in Wood v. Hartford Fire Ins. Co., 13 Conn. R., 210. Bank of Augusta v. Earl, 13 Pet., 521 But even then, the application of the principle is limited by the peculiar circumstances of the cases. Church, Ch. J., in the first case, expresses himself thus: “ We do not dispute the general principle, that the corporation, in its corporate capacity, is the responsible and actual party, and so to be regarded, and treated, in all cases where no actual necessity exists, of looking beyond the form of its being, and therefore we admit, with the defendants, that, a corporator cannot control an action in which the corporation is the party; that his confessions cannot affect the corporate interests, and indeed, that he may even prosecute an action against the corporation of which he is a member.” In the present case, we see no occasion nor necessity for holding, that the numerous stockholders of the Phoenix Bank are stockholders of the Hartford, Providence and Fisbkill Railroad Company, or are to be treated strictly as defendants on the record, and therefore we hold, that the first objection to Mr. Hovey’s capacity to act, is not well sustained. To hold otherwise would, we think, lead to great perplexity and confusion.

There is more difficulty with the second objection. It must be agreed, that interest in the event of the suit, whether for or against the party raising the objection, is a disqualification for judicial action. It must be so, whether we infer it from our statute which declares a judge to be incompetent to act in cases much less objectionable than this, or from the common law, which does not allow a man to be judge in his own case. Here, the Phcenix Bank are certainly interested as stockholders, and Mr. Hovey is a stockholder in that bank. It is said, his interest is too remote and contingent, not fixed nor appreciable. Waiving this point, and assuming, as most of the court believe the law to be, that Mr. H. had an interest which disqualified him, still we think the objection of interest must be overruled.; for we hold, that the defendants have waived it, by not making it at the time the committee was appointed, or as soon after as they had knowledge. This is the rule fin relation to jurors, creditors and county commissioners, as we have decided in numerous cases, and as is decided elsewhere. Groton & Ledyard v. Hurlbut, 22 Conn. R., 182. Quinebaug Bank v. Leavens, 20 Conn. R., 87. Crone v. Daniels, 20 Conn. R., 331. Selleck v. Sugar Hollow Turnpike Co,, 13 Conn. R., 453. In this last case, the court held, as to a juror, that the motion in arrest is bad, unless it is stated therein, that the party moving for the new trial did not know of the disqualification, before the verdict was rendered in court. The court say: “ It is not alleged in the motion, nor does it any where appear, that the defendants did not know of this objection, at the trial. If they did, they were bound to make it at that time. A-party cannot be permitted to lie by, after having knowledge of a defect of this kind, and speculate on the result, and complain only when the verdict becomes unsatisfactory to him.” These remarks are applicable to the case before the court. For aught we know, the defendants favored, or at least acquiesced in the appointment of Mr. H., when they could have objected to him, and another person would have been appointed in his place. Ignorance at that time was an all important fact* Therefore, when the report was presented to the superior court, the defendants should have stated, and then they would have been permitted to prove, that they were ignorant at the time the committee was appointed, if it was so; certainly we cannot assume it. This rule of law is most reasonable in itself, and indeed it is well nigh indispensable, if there is to be an end to litigation ; and we see not why the plaintiffs are not entitled to the benefit of it in this instance. We conclude therefore, that the report is unobjectionable, and must be accepted.

. Still, a most important question remains to be decided, one which has engaged much of our attention, and is not free from difficulty. What decree shall be passed upon the report, when accepted ? It is most obvious that the defendants are liable to the plaintiffs on the contract of the 11th September, 1849, wherein they stipulate “ to make and maintain a turnout or side track for the accommodation of the petitioners.” They have neglected and refused to do this, and are liable to be sued for the injury to the plaintiffs, or there may be a specific performance ordered in chancery, as the court may think best. The plaintiffs insist, and perhaps with propriety, that the latter is the proper and only certain and adequate remedy.

We can, undoubtedly, if we think it best, decree a specific performance, or, when we take a just and enlarged view of the public and private interests involved, leave the plaintiffs to their remedy at law; but the latter course is unsatisfactory to the plaintiffs, and it may be unequal and unfair, in view of its inadequacy, and we may be bound to give them a specific execution, if the request can be granted in a reasonable and prudent manner. The contract or obligation, in one sense, is indefinite and ambiguous. “ The respondents are to make and maintain a turnout or side track for the aecommodation of the plaintiffs, from either or both of said companies’ main tracks, at any time within five years,” &C. The exact mode is not pointed out, and the plaintiffs seem to have been permitted to introduce parol evidence without objection, to show exactly what the parties expected and agreed, at the time, should be done. Whether this testimony was admissible or not, if objected to, we have no occasion to enquire, for upon this part of the report we have not come to any definite conclusion. The mode expected, it seems, was, if the plaintiffs wished, as they subsequently have done, to pass from the track of the New London, Willimantic and Providence railroad, which lies northernmost, to and upon' the track of the Hartford, Providence and Fishkill railroad, and thence, by switches, forming a communication with said last mentioned track, passing along upon it, and thence to the storehouse of the plaintiffs, which lies on the south-west side of the track. This is what the plaintiffs claim they are entitled to, under said contract and the cotemporaneous understanding. The Hartford, Providence and Fishkill railroad company insist, that the writing is indefinite, and does not point out any particular mode of crossing their track, but only that it is to be done in some reasonable mode, and they say, that the mode asked for by the plaintiffs is not reasonable, but quit eotherwise and unnecessary, and that if adopted, it will work a most serious if not ruinous injury to their road; and besides will endanger the public travel, from collisions and other accidents. They say that a turnout can be made on the south side of their own track to the plaintiffs’ storehouse, and that another turnout can be made on the north side of the track of the Hartford, Providence and Fishkill company, extending down a short distance, and thence connecting with the storehouse by crossing, at right angles, the tracks of both companies; that this will give the plaintiffs all they have occasion to enjoy, and that it will not greatly injure the defendants, nor endanger public travel. On this point, the report is not as full as we could wish. It says “ that a single side track laid as the plaintiffs demand, would, unless managed and used with proper care and prudence, expose the public travel along said railroads to serious danger from collision and other causes; but if the same were under the supervision of the railroad companies, and a reasonable degree of prudence and care were exercised in its management and use, the danger arising therefrom would be very slight and scarcely appreciable.” It is to be observed, that the report does not say, that this particular mode is indispensable or necessary, nor that some other and perhaps the one pointed out by the defendants, would’ not answer as well, or nearly so. Perhaps Mr. liovey did not feel at liberty to take this range in his examination. He seems to have directed his attention chiefly to the practicability and propriety of the mode, which he says the parties contemplated in the outset, and even as to this, he has expressed himself with not a little caution, and has annexed numerous and important provisions and conditions, sufficiently significant and pertinent to induce us to pause before we adopt it. Furthermore, we are satisfied, if we may appeal to universal observation and all past experience, that this mode is not free from imminent danger to the public, from interruption and collisions, and especially when we consider that imprudence and carelessness are, to a great extent, incident to the thing itself, if not almost inevitable. We shall not, we are persuaded, approve of this mode at all, but shall rather leave the plaintiffs to their legal remedies, than decree such a specific performance. On the whole, we have concluded, that the report shall be accepted, but that there must be a further hearing, as the superior court shall direct, as to the best mode of making a turnout, or side track, for the accommodation of the plaintiffs.

In this opinion the other judges concurred, except Church, C. J., who was absent.

Report accepted, and further hearing to be had.


author: Ellswokth, J.

text:
    Chapin vs. Curtis.
    By a general demurrer to a declaration, nothing is admitted but some cause of action on some of the counts embraced therein, and the plaintiff can only recover, to the extent of the damage he proves to the court.

      A having agreed with C to carry passengers and freight from New York to California, the latter subsequently brought an action against A, for not fulfilling such agreement, embracing in the declaration several counts, some for negligence, some for false warranty, and one in trover. To this declaration A demurred, and thereupon judgment was rendered against him, and damages assessed at one hundred dollars. A afterwards brought his action against the defendant, who was liable with C for the payment of the freight and passage money, claiming that, having performed said agreement on his part, the defendant was liable for the payment of said money. The defendant having denied such performance and offered evidence to that effect, A claimed that all the facts in issue had been adjudicated, except so far as the recovery of said $ 100 went to prove the contrary, and that said judgment, in the former cause, was conclusive evidence of full performance, on his part, and that the defendant was concluded thereby. Held, that the judgment on said demurrer was not conclusive evidence of the full performance of said agreement on thé part of A. Much less did it prove the full performance on his part, of the contract, the breach of which was set out in other counts of said declaration, that were not passed upon by said court, in rendering such judgment.

      Á privy by representation, as an executor, administrator, or assignee, is bound by a judgment against his principal.
    How far a surety is bound by a judgment against his principal except in certain peculiar cases ? Qu.

    This was a bill fox the foxeclosuxe of a moxtgage, brought by Mexrick W. Chapin against Fredexick Curtis.
    The cause was brought to the superior court for Hartford county, and referred to a committee, whose report embraced the following facts.
    The condition, annexed to the deed of mortgage, was as follows: “Whereas the said M. W. Chapin is agent for the steamer Hartford, which is about to sail from New York to California, and Joseph Curtis and C. C. Randall of Hartford, are about to send several persons passengers, and also divers freights in said vessel, to California, and it may be to some other place or places, and the said Frederick Curtis has agreed, and hereby does agree, to become responsible for the payment of the passage money of said passengers, and the freight moneys for said freights, to said Chapin; now therefore, if said Curtis and Randall, or said Frederick Curtis, shall, within six months from the sailing of said vessel, well and truly pay or cause to be paid, all and every of the sum or sums, of money, that is or may hereafter be due said Merrick W. Chapin, agent as aforesaid, and all freight money in like manner, for passage of said passengers and freight, as the said Curtis and Randall shall send or forward by said steamer Hartford, to California or elsewhere, on her now contemplated voyage, .then this deed shall be void, otherwise in full force and effect, as by said deed duly executed, acknowledged and recorded, ready in court to be shown, appears.”
    In the month of January, 1849, the plaintiff and others were the owners of a steamer, or propeller, called the “ Hartford,” then lying in the port of New York, which they were then and there fitting out for a voyage from said port of New York to San Francisco, in California. The plaintiff, M. W. Chapin, was the agent of the owners, and had the care of fitting out said vessel, and. of contracting for the transportation of passengers and freight, on board the same. Joseph S. Curtis and Corydon- C. Randall were about taking out a number of men, and also a quantity of machinery and other freight, for the purpose of establishing the business of assaying and stamping gold, in said San Francisco. Some negotiations were had between said Chapin and said Curtis and Randall, regarding the transportation of the men, machinery, and other freight, which negotiations terminated in a contract, by which said Chapin agreed to take out and transport from said New York to San Francisco, eleven men, including said Randall, who was to pay $250 for his passage, and his berth on board said vessel; the others to pay $225, except a boy named Eben, who was to pay $100, and it was further agreed that said Chapin should receive such machinery and other freight, as Said Curtis and Randall should put on board said vessel, at a stipulated price per cubic foot. The passage money, at the prices aforesaid, amounted to the sum of $2,375, and the freight on the machinery and other articles put on board, by the said Curtis and Randall, at the prices agreed upon, amounted' to the sum of $1,219.31.
    At this time it was the custom, in the city of New York» (where said contract was made,) that in voyages to California, the passage money should be paid when the berths were taken, and the freight money when the freight should be delivered to the shipper. But in this case, it was agreed between the parties, that the sums for freight and passages should be considered as cash, but that six months should be allowed for payment, and that a note to that effect should be given, which, however, was not given. Said Chapin insisted that security should be given before the vessel sailed» for the payment of said passages and freights,'and, in order to satisfy said claim, said Joseph S. Curtis and said Randall, applied to the defendant to furnish such security, and at their instance and request, the defendant executed and delivered the mortgage deed, described in the plaintiff’s bill.
    Said deed, with the condition thereto annexed, contained the entire contract of the defendant, and he had no interest in the contract of said Curtis and Randall, with the plaintiff", and was only guarantor, for their accommodation, of the payment of said freights and passage money.
    Said vessel sailed from New York for San Francisco, on or about the 20th day of February, 1849. On the evening before she sailed, the parties were all together, at the Astor House, in said city of New York, where it was agreed that said vessel should sail the next morning at ten o’clock, and said Randall then said that he would be on board with his troops at that time; but he did not come on board, and after waiting for him about two hours, and he not appearing, said vessel sailed without him, and after a passage of ten months and one-half, (viz., on or about the first day of January, 1850,) arrived at said San Francisco, and delivered her passengers, and also her cargo, in a damaged state.
    After the arrival of said vessel at San Francisco, and before the commencement of this suit, a demand was several times made on the said Joseph S. Curtis, by the plaintiff, for payment of said passages and freight, and the principal objection, which he made to such payment, was that a passage to Randall ought not to have been charged, or that some deduction or allowance ought to be made therein.
    The bill in the present case was duly served on the defendant, and returned to the superior court, in and for the county of Hartford, at its September term, 1850, and was by said court regularly continued, and before the next succeeding term of said court, viz., on the 16th day of January, 1851, said Joseph S. Curtis and said Randall commenced their suit against the plaintiff, and the other owners of said vessel, for damages sustained by the plaintiffs, by reason of their non-performance of their undertaking, in the premises, by the defendants. Said writ was duly returned to the next superior court, for Hartford county, and such proceedings were afterwards had in said case, that said Curtis and Randall recovered a judgment against the owners of said vessel, for the sum of $100 damages and costs.
    The defendant Curtis, by his counsel, claimed that the performance, by the owners of said vessel, of all and singular the stipulations and agreements, by them to be kept and performed, was a condition precedent, and that, without such performance, the plaintiff could not recover, and that, if such performance were not a condition precedent of the plaintiff’s right of recovery, yet that the defendants had a right to prove in defence, that said contract had not been performed, and that, even if the said Curtis and Randall would have been estopped by said former judgment, from setting up in defence such non-performance, in case they had been defendants, yet that the defendant was not estopped thereby, being only a surety, and not a party, or privy, to said judgment. And to show that said contract had not been performed, he offered evidence to prove the truth of allegations of violations of such contract by the plaintiff, contained in his answer to said bill. To the admission of this testimony the plaintiff objected on the ground, that the allegations contained in said answer had been passed upon by a court of competent jurisdiction, and were res adjudicatei; and to sustain said objection, he offered in evidence the record aforesaid. To the admission of this record the defendant objected, on the ground among others, that the defendant was neither a party, nor privy to said record. But the committee overruled said objection, and admitted said record as conclusive upon the parties, finding that the averments and the declarations in said record, and those set up in the answer as aforesaid, were founded on one and the same contract, and not otherwise, and were identical, and thereupon excluded the evidence offered by the defendant. The committee found upon the admitted testimony in said case, that, excluding a charge of $58.06 for primage, which was not sustained by any satisfactory proof, and including $250, charged for Randall’s passage, there was due from the defendant, the sum of $4,790.82. But if the court should be of opinion, upon the facts found by the committee, that said charge should be excluded, then there would be due to the plaintiff the sum of $4,478.94.
    The committee further found, that all the allegations in said bill, not otherwise found in said report were true, and that the aforesaid proof offered to sustain the allegations in the answer being ruled out, said allegations were found not true. The case was reserved for the advice of this court as to what decree ought to be passed.

      Parsons and Fellowes for the plaintiff.
    1. The only question is, whether the evidence, offered to prove the new matter set up in the answer, was rightly excluded. This depends on the question, whether the record of the former judgment was admissible and conclusive, and this latter question depends on the question, whether the defendant was a privy to that judgment and so concluded by it.
    2. The defendant was a privy to said judgment, having made himself such by his contract, and therefore concluded by it. Willey v. Paulk, 6 Conn. R., 74. De Forest v. Strong, 8 Conn. R., 522. Davis v. Kingsley, 13 Conn. R., 285-298. Bushnell v. Church, 15 Conn. R., 421.
    The following decisions of the United States courts, and of the courts of other states are to the same effect:

      McLaughlin v. The Bank of Potomac, 7 Howard, 220-9. Berger v. Williams, 4 McLean, 577, (12 U. S. Dig., 378.) Parkhurst v. Sumner, 23 Verm, 633. Heard v. Lodge, 20 Pick., 53. Masser v. Strickland, 17 Serg. & R., 354. Evans v. Commonwealth, 8 Watts, 398. Garber v. Commonwealth, 7 Barr, 265. 7 U. S. Dig., p. 235, § 83. 5 Bligh N. S., p. 1.
    3. If the former judgment be not conclusive, the result would be, that although the principal has recovered all the damage which he has sustained by reason of the non-performance of the contract, yet the surety may set up the same matter in defence, and have the amount of the damage deducted from the debt.
    4. As to the performance of the contract, being a condition precedent, the finding of the committee, is that the passage and freight moneys became due, before the sailing of the vessel. This finding is founded upon evidence entirely independent of any matters set up in the answer, and could not have-been otherwise, if the evidence of those matters had been admitted.

      T. C. Perkins and Hooker for the defendants.
    Privies in contract are not estopped by that which estops the party with whom they are in privity.
    I. Upon principle. It is clear that the defendant, if bound at all, is only so as privy. And only as privy in contract. A surety is so regarded in the case of Willey v. Paulk, 6 Conn. R., 74. But that a privy in contract should be estopped is a novel principle, and can not be supported by authority or reason. The principle upon which a privy in any ease is estopped, is that he has succeeded to the rights upon which the estoppel operates, and so takes them with the character impressed upon them by the estoppel. 2 Smith’s Lead. Ca., 516, 518, and case cited from Ad. & Ellis, 519. 1 Bouvier’s Law Dict., “ Estoppel.” 2 Coke, 352, b. 24 Wend., 53. 1 Greenl. Ev., §§ 189, 523. Broom’s Leg. Max., 316. It is shown by these authorities, that the privies embraced within the well- established principle, that judgments are binding on parties and privies, are only those who succeed to the rights determined by the former adjudication. These privies are privies in blood, privies in law, privies in estate. 2 Smith’s Lead. Ca., 518. There are many other privies, but they are not affected' by this incident. The mistake has been in taking it for granted, that all privies are embraced in the principle that parties and privies are estopped, &c.
    In every case where the privity is not one of succession, but merely of participation or mutuality, the principle does not apply. There is no more perfect privity in contract than that of two joint makers of a note; and yet, if judgment is obtained against both, without any service on one of them, that one is not concluded by the judgment. Wood v. Watkinson, 17 Conn. R., 500.
    All the cases that seem to support a different view from the above, will be found, on examination, to be: 1. Cases that hold that the privity was such as to make the supposed privy substantially a party, and accordingly holden as such. 2. Cases where the judgment is merely a fact, making itself the casus feederis, on which the liability of the surety arises, and where accordingly its effect on the surety depends on a mere construction of his undertaking, and not on his being a privy. 3. Cases where the principle, that a judgment binds parties and privies, has been inconsiderately taken for granted as applying to all privies of every kind. Those cases are few, and the error is generally in giving the reason, rather than in the result. '
    If then Frederick Curtis, to be estopped, must have succeeded to rights affected by the former judgment, we say he has not succeeded to any rights, and especially has acquired no interest since the former judgment. 1 Ad. & Ell., 783. His rights were perfect before any litigation was commenced. Can he have lost those rights by any proceedings to which he was not a party ? The only obligation that he ever assumed, was to-pay Chapin for performing his contract. Has the character of the obligation become changed since, by an act to which he was not a party, in which he had no interest, and over which he had no control ?
    II. But it is claimed, that the authorities have settled the point against the surety. And particularly, that the law is so settled in Connecticut. 1. Examine Willey v. Paulk, 6 Conn. R., 74. This decision takes it for granted, that privies in contract are estopped like other privies. It starts with a mistaken conception of the old law. It then founds itself upon a rule of the civil law. But the very passage quoted from Pothier shows, that, by the civil law, the surety was estopped as a party, and not as a privy. The whole idea is hastily adopted from the civil law, and the rule of the civil law misapprehended in adopting it.
    By the civil law, the surety was regarded as a party and had the right to appear and defend and take an appeal. Thus Pothier, vol. 2, p. 295, says, “ The dependence of the obligation of a security on that of the principal debtor to which it has acceded, also causes the security to be deemed the same party with the principal debtor, in regard to all that is determined for or against the principal debtor. When a judgment has been rendered against the principal debtor, the creditor may oppose it to the security, and demand that it may be executed against him, but the security is received to appeal from this judgment, or if it is rendered in the last resort, to contest it.” See 4 Hill, 529. 3 Phil. on Ev., note 569, p. 816, 2d ed.
    But the case in 6 Conn. R., 74, even if correctly decided, is not an authority in point. There a judgment had been recovered against an executor, and in a suit against his surety on the probate bond, it was held, that the surety was bound by the judgment. But the court mistake in regarding him as bound because a privy to that judgment, which he was not in any sense. He was bound only because the judgment established a claim against the executor, the nonpayment of which was a breach of his bond. The non-payment of the judgment debt, was the precise default that the surety had guaranteed against. It was the precise casus fcederis. 4 Hill, 531.
    2. All the cases, which seem to support a different view, rest upon this distinction, viz., that the judgment against the principal is a mere fact against the surety, out of which grows the liability of the surety, not that the judgment has any operation against the surety as being embraced by it, either as a quasi party, or as a privy. They rest upon a construction of the surety’s undertaking. 2 Am. Lead. Ca., 322, et seq. 20 Pick., 58.
    3. And even these authorities hold the judgment to be only prima facie evidence. 10 Metc., 315. 12 Wheaton, 519, 520, 523. 2 Smith’s Lead. Ca., 578. 7 Howard, 229.
    4. When the undertaking of the surety is the common one of a guarantee of a contract of the principal, the cases are unanimous in sdpport of the defendant’s claim. 24 Wend., 53. 5 Martin, 193. 3 Har. & McHenry, 242. 4 Hawks, 34. 23 Verm. R., 592.
    III. The contract upon which the previous adjudication was made, was not the contract which the defendant guarantied. Nor did it establish any fact upon which the defendant’s liability rests. Nor was the matter in controversy one which the defendant had any interest in.
    To make the case at all parallel to those under the civil law, where it is holden that a surety is bound, the former suit should have been by Chapin against Curtis and Randall, the principal debtors, to recover the amount of freight and passage money due, and which was guarantied by the present defendants.
   Ellswokth, J.

The plaintiff sets out in his bill, that Joseph S. Curtis and C. C. Randall agreed with him, that he should carry certain passengers and freight from the port of New York to California, in the steamer Hartford. He avers that he has done all that he engaged to do, to complete the voyage, and is now entitled to receive the price of his services, agreeably to the contract. For the faithful payment of this money, the defendant becomes liable with said J. S. Curtis and C. C. Randall, whether as one of the principals, or as a surety for the other two, is not entirely clear, nor in our view, is it important, as the defendant, in either character, may call on [the plaintiff to make good his allegations, and of course may introduce evidence to disprove them. As principal, he must obviously have his own day in court, unaffected by proceedings against others; and as surety, he is, as all agree, entitled to make any defence which his principals can make, and whether he can have any more or not, has been strenuously controverted and is denied; but considered as a surety, we can not doubt that he must be let in to any equitable defence, even if performance by the plaintiff is not held to be a precedent condition; and such is the defence of the non-performance, set up in the defendant’s answer.

The defendant first denies the obligations in the bill, in a general form; he says, in his answer, “ That the plaintiff has totally violated his contract,” andto be more particular, “ That he did not fit out, and prepare said steamer,” and goes on to deny at great length, what the bill generally asserts, and then, he states wherein the plaintiff has not performed the voyage, as alleged. This, then, was the issue before the court, and before the committee. To establish the facts in the bill, the plaintiff offered a variety of evidence, all of which was received, and, from what afterwards transpired, was satisfactory to the mind of the committee, to prove all for which it was offered. To impair and contradict the evidence so offered, as well as to prove the truth of the allegations in the defendant’s answer, the defendant offered his evidence to the contrary, and claimed to be able to establish his defence as already stated. The plaintiff objected to it, on the ground that all the facts in issue had been adjudicated between the plaintiff and defendant, and could not be again brought into dispute; that they had been all decided in the plaintiff’s favor; and he read to the committee, the record of a judgment in the superior court at Hartford, in a suit of said Joseph S. Curtis and C. C. Randall, against said Chapin, in an action on the case against him, and the other owners of the steamer Hartford, as common carriers, for not carrying certain passengers and freight from the port of New York to California; there being in the declaration several counts, some for negligence, some for false warranty, and one in trover. The committee found it was the same contract in both cases. It will be observed that, to that declaration, a demurrer was put in by Mr. Chapin, and on the demurrer, judgment was rendered for the plaintiff, and damages assessed at $100. The plaintiff insists that this record conclusively proves that all the facts contained in that declaration were adjudicated, except so far as a recovery of $100 went to prove the contrary. The committee ruled in favor of the plaintiff, and after excluding all the evidence offered by the defendant, found and reported in the plaintiff’s favor, that the entire freight money was due the plaintiff, amounting to the sum of $4,795.94.

Now, we are not able to see how this ean be so. Did that demurrer prove that the facts contained in the declaration were not true ? and it must be this, to help the plaintiff. It rather proved the contrary, if it proved anything; and for the purposes of that case, it certainly did prove the contrary. How did it then prove full performance by the plaintiff, which was flatly denied in the declaration ? The whole effect of the judgment, on a demurrer, and the $100 damages, is that on that declaration, on some of the counts, the defendant had subjected himself to pay $100 for-not performing his contract, or for his fraudulent warranty, or his conversion of the plaintiff’s goods. The admission by the demurrer, is rather that the common carriers did nothing, than that they performed anything,, much less, that they had done everything, except to the amount of $100, which damages might have been given and probably were given for the carriers’ destroying a portion of the shippers’ lumber in the port of New York; and so, that record furnished no evidence at all, of the performance of the voyage by the owners of the Hartford, any more than a record of a recovery, by a proprietor, who has sued his contractor for stealing and wasting the timber he furnished him, to build the proprietor’s house, and a recovery for the value of the lumber destroyed, proves that the house was built,in time and manner as agreed; and there being other counts for not performing in due time and in proper manner, makes no difference, for an admission, even of the whole cause of action in such count, has no tendency to prove performance by the builder. No further action can be brought for damagés, it is true, and that is all. The record of that suit is certainly consistent with the fact, that the steamer never left the port of New York. The mistake of the plaintiff’s counsel, as we conceive, is this, that the damages assessed on the demurrer, disprove the truth of the declaration, as to the carriers’ neglect, except as to the $100, or to put it in another form, the carriers being sued for not carrying goods as agreed, but converting them to their own use, having paid damages for their misconduct, can recover their whole freight, just as if they had fully performed, and as if this fact of full performance had been established, and adjudicated by that proceeding. It can not be so. Had Joseph S. Curtis and C. C. Randall sued Mr. Chapin on a specific contract, and recovered damages, by a verdict, or on demurrer, this record would prove every material point stated in the declaration, because whatever is necessary to be found, must be held to have been proved, or admitted, on the trial. But the present case has no resemblance to that: nothing follows as a necessary, or legitimate consequence of this demurrer, but that the carriers had not kept, but had abandoned, their undertaking, and for some misconduct or other in the matter, were adjudged to pay one hundred dollars damages.

Another question has been made, which, under other circumstances, we should consider worthy of our most serious consideration, but shall pass it over, at the present time: we mean, allowing the defendant to be a surety to J. S. Curtis and C. C. Randall, would a judgment against them be conclusive upon him while he was not a party in that suit? Were he privy by representation, like an heir, executor, or assignee, it is agreed that he would be bound, but beyond that, except perhaps in a few peculiar cases, it is insisted, by the defendant’s counsel, as a general principle of law, that a surety stands upon his own rights, and is not estopped by a judgment against his principal. This question has been argued on both sides, with much ability and learning, and we need only commend the briefs of counsel to the profession, in order that the distinctions made, and the books cited, may receive the attention they deserve; but situated as the case is, we do not think we are called upon to express an opinion upon the question.

For these reasons we advise the superior court to set aside the report.

In this opinion the other judges concurred.