author: Waite, C. J.

text:
    Brewster vs. Shelton and others.
    The statute regulating appeals from decrees of probate courts, requires that they should be taken only to the regular statutory term of the superior court, next to be holden after the allowance of such appeals.
    By the true construction of that statute, an appeal from such a decree can not be taken to a term of the superior court, after the commencement of such term.
    In a petition to the probate court, by an attaching creditor, for the appointment of a trustee of the property of the debtor, pursuant to the provisions of the statute of *1853, (Rev. Stat.,tit. 14, ch. 4, p. 513,) other attaching creditors are interested in the subject matter before the court, and have a right to be heard therein.
    Brewster presented a petition to the court of probate for the district of New Haven, alleging that he was an attaching creditor of Shelton, and praying for the appointment of a trustee of the property of Shelton, for the benefit of his creditors, pursuant to the provisions of the statute of 1853, entitled “ An act for the relief of insolvent debtors, and for the more equal distribution of their effects among their creditors.”
    Loren Cowdrey and James Laurie, also attaching creditors of Shelton, afterward presented their petitions to the court of probate, alleging that they had acquired liens upon his property, by virtue of prior attachments; that the proceedings, on the part of Brewster, were not commenced in good faith, but in fraud of the law, and in collusion with Shelton, for the purpose of enabling him to convey away a large amount of his property, to the great damage of his creditors, and particularly to the petitioners, and praying that Brewster’s application might be dismissed.
    These petitions came on for hearing before the court of probate, holden, by adjournment, on the 15th day of January, 1855, when the parties respectively appeared, and Brewster, having declined going to trial, and failing to prove the allegations in his petition,.the court ordered his application to be dismissed.
    On the 26th day of February following, Brewster appealed to the superior court, holden at New Haven on the fourth Tuesday of January, 1855, and entered the case in the superior court, on the day of the appeal, the court being then in session, and the term having commenced on the 23d day of January.
    At the April term following, Cowdrey and, Laurie, who appeared under an order of notice, made by the judge of probate, pleaded in abatement of the appeal, on the ground that it was taken too late, and should have been taken before the session of the superior court commenced. To this plea, there was a demurrer, and the superior court adjudged the plea sufficient and dismissed the appeal. Brewster thereupon filed a motion in error, and brought the casé before this court.

      Baldwin and Foster, in support of the motion.
    1. The right to appeal in this case is given in the statutes of this state. Rev. Stat., 280.
    2. This right is not affected by the seventy-third section of the act relating to civil actions, Rev. Stat., 73, that referring clearly to actions at law; and an appeal from probate is not a suit at law within the meaning of that section.
    By section ninety-six, of the act relating to the settlement of estates, Rev. Stat., 527, an appeal is authorized from a probate court, “ in the manner provided by the act relating to'eourts,” but not as provided by the ’act relating to civil actions.
    3. The practice has been to allow appeals in the manner claimed here, and no inconvenience has resulted from it. A contrary practice would involve great inconvenience.
    4. Neither Cowdrey nor Laurie had any right to appear, and plead in abatement to this appeal; much less could they put in a joint plea. Neither of them is aggrieved, or has ■ any interest in the matter before the court. They are not parties to the petition of Brewster v. Shelton; the plea in abatement is therefore sufficient, and the demurrer good. The objection not being made by Shelton, the proper person to make it, is therefore not legally made.

      R. I. and C. R. Ingersoll, contended, that the plea in abatement is sufficient.
    I. The order of the court of-probate appealed from, having been made on the 15th of January, and the “ next superior-court” for New Haven county, having been holden on the 23d of January, viz., on the fourth Tuesday, an appeal could not have been taken, from that order, on the 26th of February. It should have been taken before the fourth Tuesday of January, “ and not afterwards.” Rev. Stat., 280.
    The “ next superior court,” to which the appeal of the plaintiff was, by this last section, limited, he being present at the judgment of the probate court, was held on the fourth Tuesday of January, and not, in contemplation of law, on any day subsequent to the fourth Tuesday of January. The statute designates that day, and no other, as the time for holding that court.
    “ And, by the principles of the common law, a term of a court; of however many days such term in fact consists, is deemed to constitute but one day, and that is the day on which the term is holden.” Leavenworth v. Marshall, 19 Conn. R., 4. Cutler v. Wadsworth, 7 Conn. R., 6. Any other rule would be attended, in practice, with incalculable confusion and inconvenience. The courts of probate, especially those sitting in towns remote from the county seat, can not be expected to know, except as they are informed by the statute, when the superior court is in session; and much less to keep the run of its various adjournments, extending, as they frequently do, for special cases, through the whole vacation. And yet this must be presumed of them, if the superior court in session is to be regarded as “ the next” superior court designated by this statute. For there certainly can not be two “next” superior courts; and if the court in session is the “ next” one, an appeal to the succeeding regular term would be manifestly erroneous. But this absurdity is obviated by the designation of a definite day, as the “time” on which the superior court shall be considered as “held.” Of that time the court of probate can judicially take notice.
    But this question has virtually been decided by this court in the case of Leavenworth v. Marshall, 19 Conn. R., 1.
    In that case, the .appeal was taken to an adjourned term of the superior court, the appellant claiming his appeal, in analogy to the practice of bringing, original suits to such a term. It does not seem to have been even suggested by the appellant in that case, that the court he appealed to was the “next” court, because it was then in session. The reasoning of the judge who gave the opinion of the court, in that case, applies with increased force against the claim of the present appellant. Commonwealth v. Sessions of Norfolk, 5 Mass. R., 435. Fellows v. Carpenter, Kirby, 364.
    II. The statute authorizes an appeal to none but an aggrieved party. This record does not show that the appellant even claimed to have been aggrieved by the proceedings of the probate court. On the contrary, it shows that he “ declined to go to trial; ” that he “ utterly failed ” to “ produce any evidence.” He, in other words, suffered a nonsuit, and withdrew from, the court; and thereupon the probate court dismissed his case.
    III. The appellant, having cited in the appellees, and made them parties to the case, can not be permitted to say that they have no right to appear and be heard.
   Waite, C. J.

The statute, authorizing appeals from decisions of courts of probate, provides that all persons present, of full age, shall appeal to the next superior court, and not afterward.” Stat. 1854, p. 280. Brewster, the appellant in the present case, was present on the 15th of January, 1855, when his application was dismissed by the court of probate, and on the 26th day of February following, took an appeal to the superior court, holden on the fourth Tuesday of January, 1855. The question arising upon these facts is, whether thé appeal was taken to the next superior court, within the meaning of the statute authorizing the appeal.

In one of our earliest reported cases, it was holden by the superior court, that an appeal from a judgment of a justice of the peace, could not be taken to an adjourned term of the county court. Fellows v. Carpenter, Kirby, 364. And the reason, assigned by the court, was, that the words of the statute, granting appeals to the next county court, had reference to the next stated term, and not to an adjourned term, which was but a continuation of a term, and so had invariably been the practice, under the statute.

The same principle was recognized by the supreme court of Massachusetts. Commonwealth v. Sessions of Norfolk, 5 Mass. R., 435.

In a more recent case, this court held that, in view of the long practice which had prevailed in this state, an original suit might be brought to an adjourned term of the court. But the decision was placed entirely upon the ground of such long continued practice, which could not be disturbed without shaking the foundations of many titles. Hawley v. Parrott, 10 Conn. R., 486.

But in a still later case, it was holden that this exception to the general rule, did not apply to appeals from decrees of a court of probate, and that they could not be taken to an adjourned term of the superior court, as neither the statute, nor any practice, authorized them, to be so taken. Leavenworth v. Marshall, 19 Conn. R., 1.

If an appeal from a decree of a court of probate can not be taken to an adjourned term of the superior court, upon the ground that such term and the regular term, in contemplation of law, are but one term, it would seem to follow, as a necessary consequence, that an appeal can not be taken to any day of the court, subsequent to its commencement.

It is true, in the present case, that the appeal was not, in form, taken to a day in the term subsequent to that prescribed in the statute for holding the court; but such was its effect, as it was taken long after the term commenced, and it would be absurd to hold that it might be taken to a court, the session of which had passed.

The true rule, in our opinion, was given by the court, in the case cited from Kirby’s Reports. The expression, “next court,” in the statute, means the next stated term of the ' court, and an appeal, after that time, is expressly prohibited.

It is further said, that Cowdrey and Laurie • were not proper parties to the proceeding, and had no right to appear and plead as they did. The object of Brewster’s petition was to have a trustee appointed,' to take possession of Shelton’s property, for the benefit of his creditors. The effect of the application, if granted, would be to dissolve their liens, acquired by their attachments. They therefore had an interest in the protection of their liens. They accordingly appeared before the court of probate, for the purpose of showing that the proceedings of Brewster were commenced and carried on, with a fraudulent design, to injure them, and the creditors of Shelton generally. They therefore had an interest in the subject matter before the court, and had a right to be heard thereon.

Besides, Brewster, when he entered his appeal, obtained an order of notice, making them parties to the proceeding, under which they appeared and defended, as we think they had a right to do.

We are therefore of opinion, that there is no error in the judgment of the superior court, , dismissing the appeal.

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

Judgment affirmed.


source: Caselaw Access Project

author: "Waite, C. J.

license: Public Domain

text:
    The Mechanics and Working Men’s Mutual Savings Bank and Building Association of New Haven vs. Wilcox and others.
    The act “ authorizing the establishment of savings and building associations,” passed in 1850, does not exonerate all contracts, made by such associations with their members, from the operation of the statute, relating to usury.
    The term bonus, in such act, imports a definite sum, to be paid at one time, for a loan of money for a specified period, distinct from, and independently of, the interest.
    The act of 1855, providing that the bonus on loans, made to the stockholders in such associations, shall, in no case, exceed twenty-five per cent, on the amount loaned, has no effect upon contracts, which were made under the act, passed in 1850.
    A member of an association, organized under the act of 1850, gave to such association his promissory note for the payment of $6,000, with interest, and a bonus of three-fourths of one per cent, per month, in addition to the interest, both interest and bonus payable monthly, in advance. Held, That such note was not entirely void, but was usurious, both in respect to that part cjf it denominated a bonus, and to the interest.
    Where the borrower, for the purpose of obtaining a loan of money from such association, became a member and stockholder thereof; it was held, that the fact oí his not being liable to the full extent of his contract for such loan, did not affect his rights, or his liability as a stockholder.
    This was a bill to foreclose mortgaged premises. The cause came on, for hearing, before the superior court for New Haven county, at the October term, 1854, when that court made a special finding, and reserved the case for the advice of this court. The material facts, thus found, are the following.
    The plaintiffs were duly organized, under the statute, entitled," An act, authorizing the establishment of savings and building associations,” passed in 1850, and adopted their constitution.
    The defendant, Wilcox, in July, 1853, became a member of the association, and subscribed for thirty shares of their stock. The plaintiffs thereupon loaned him $6,000, for which he executed and delivered to them his promissory note, dated July 6th, 1853, by which he promised to pay them, on demand, six thousand dollars, with interest, and a bonus of three-fourths of one per cent, per month, in addition to the interest, both interest and bonus payable monthly in advance, at their banking-house. And to secure the payment of the note, he executed to them a mortgage of .certain real estate. The other defendants were claimants of subsequent liens.
    Wilcox, at the time of executing the note and mortgage, subscribed for the stock, and signed the constitution, for the purpose of enabling him to obtain the loan. At the time of making it, there was deducted from the gross amount, $60 for two months’ installments upon the stock, $14 for interest, and $21 bonus, up to the next monthly meeting, on the third Wednesday of July, and thé balance, $5,905, was paid him, in cash. He continued paying his installments, $210, interest, $164, and bonus, $246, amounting in the whole to, $620, up to the third Wednesday of December, 1853, when he ceased making further payments.
    The only material provisions in the constitution are the following.
    A share o'f stock was to be $200, payable in monthly installments of one dollar on each share; the first, at the time of subscribing, and the subsequent ones, on the third Wednesday of every month.
    Whenever the intrinsic value of a share amounted to $200, the holder ceased to be a member, and became entitled to the amount of his share.
    Each stockholder was entitled to a loan for each share of his stock, (when the state of the funds admitted,) of the sum of $200, provided sufficient security was given on real estate.
    By an amendment of the constitution, adopted February 22, 1854, it was provided that the rate of interest, on all loans, should be one-half of one per cent, per month, and the rate of bonus not to exceed three-fourths of one per cent, per month, on all permanent loans, to be paid monthly, with the monthly installments on stock.

      Ives and Blackman, for the plaintiffs.
    The agreement, between the parties, in this case, to give and take a monthly bonus, is warranted by the third section of the act of 1850, which authorizes the establishment of savings and building associations.
    I. That the legislature intended to establish a monthly bonus, is apparent from the language used; the phrase, “ such a bonus,” covers the amount of it, and the mode and time of its payment. A bonus differs from interest only in name. Like interest, it is something paid for the use of money, and its amount depends upon the responsibility of the borrower, the security offered, the amount of the loan, and the time it has to run. The intention of the legislature appears also from its acts since the law was passed.
    In pursuance of the, requirements of the legislature, the bank commissioners made their report in May, 1854, and stated that, “ in some of the institutions, the bonus is payable monthly, in advance,” which report was accepted, and approved, by the legislature.
    The legislature of 1855, sanctioned the principle of the monthly loans, by an act passed, in addition to, and alteration of, the act, “ authorizing the establishment of savings and building associations,” which provides that “ no bonus shall be taken on any temporary loan, exceeding one-half of one per cent, per month.”
    The intention of the legislature may be inferred from the interpretation, which has been put upon their language. From the report of the bank commissioners, in 1855, it appears that thirty-three institutions take their bonus monthly, in advance ; eleven take it all at once, and the practice in three is not given.
    The object of the law of 1855, was evidently to allow persons to associate together, and take, and pay, as much as they pleased, for the use of their common money, provided they all shared in the earnings of the money, in proportion to their interest. This is accomplished whether the bonus is paid by monthly installments, or all at once.
    II. The monthly bonus is the most accurate, simple, just and equitable; the other system is deceptive, as well as impracticable.
    Upon the monthly system of receiving a bonus, the accounts go along pa/ri passu, and show the actual earnings for the current time; whereas, when the whole bonus is prepaid, it runs forward and laps on to subsequent years, and is incapable of an equitable division, as affecting incoming subscribers to stock.
    III. Public policy, the safety and security of a very large amount of invested capital, and the pecuniary interests of thousands of the citizens of this state, demand that the monthly bonus system shall be sustained, and this reason ought to be regarded, unless a monthly bonus is clearly contrary to law.
    IV. The loan was properly made, and subsequent incumbrancers had notice of the plaintiff’s mortgage, and have no greater equities than the mortgagor.
    V. The bonus ought to be paid up to the time of the payment of the principal. This is done only because the contract, in such cases, is to pay interest. When interest is allowed, in any case, it is either because the parties have expressly or impliedly agreed it shall be paid, or it is given as damages. The contract governs in decrees of foreclosure, and the agreement to pay the bonus is as legally and equitably binding, as the agreement to pay the principal. It continues till the principal is paid, and it is only by impeaching the contract itself that it can be avoided.
    VI. Usury is the creature of the statute. Fifteen per cent, is no more usurious than six, if authorized by law. In well-managed building associations, it makes no difference with the borrower, whether he pays little or much, provided that while he is a stockholder, the funds are all loaned at an equally high rate; what he pays on his loan, he receives back on his stock.
    The note was dated back, as a matter of convenience, to make the payments upon it correspond in time with the regular meetings, but the interest and bonus were computed and taken only from the time the money was paid. Wilcox, however, participated in the profits of the institution from the time his stock was taken. Notes take effect from the time of their delivery; and in this case, there was nothing paid, or at the time intended to be paid, for the use of the money before it was received.
    Baldwin, Dutton Sf Munson, Beach, Cowdry and Peck, for the defendants.

      First: The act of 1850, authorizes the taking of a bonus only from members of the association. 1. Wilcox was not a bona fide member. The only object of the parties, in his becoming such, was to enable him to make the loan. 2. Jt was part of the agreement, in borrowing the money, that he should sign the constitution, as well as the note.

      Secondly. If Wilcox bad been a bona fide member, the contract was one not authorized by the act of incorporation.
    The act authorizes the association “ to receive for such loan or loans, in addition to the legal rate of interest, such a bonus as the parties in each case may agree upon.”
    I. That which in this contract is called bonus, is, in fact, interest. 1. When the amount agreed to be paid for the use of money is dependent upon the duration of the loan, and becomes, due from time to time, in consequence of the continuance of the loan, the amount so accruing is interest, whether called by that name or any other. 2. A bonus is a sum agreed to be paid, for some privilege or favor granted, at the time of the agreement. It is a fixed and definite sum, the amount of which is dependent upon considerations, which exist at the time it is agreed to be paid, and is not affected by any contingencies which may subsequently arise.
    II. In authorizing them to “ receive such a bonus,” as the parties may agree upon, the legislature contemplated a sum to be received at the time of the loan, and not the power to impose conditions, by virtue of which, future payments could be enforced. But this contract calls for divers bonuses, and they are spread over the entire duration of the loan, in the proportion of twelve distinct bonuses to each year of its continuance.
    If they had intended that the association should, by a general regulation, prescribe a “rate of bonus” to be paid on all loans, they would have used language more appropriate to express their meaning.

      Thirdly. The plaintiffs made the contract, with full knowledge that it was not authorized by their charter. Its original constitution recognizes a bonus, as a sum of money bid for the privilege of makiñ.g a loan.
    This section was abolished in 1852, and, in lieu thereof, it was provided that “ the ‘ fate of bonus’ on permanent loans” shall not exceed “ three-quarters of one per cent, a month.”
    But the very nature of a bonus is such, that to prefix to it the term “ rate of,” destroys its meaning, because its attempts to unite two things which can not co-exist, to wit, a payment in advance, and a payment which shall be the same payment- and yet not in advance.

      Fourthly. It is said that the system of imposing a per cent-age, during the continuance of the loan, is equivalent to taking a bonus at the commencement of the loan, because, in both cases, the borrower pays an excess over the legal rate of interest. It is not true that the imposing a per centage, to accrue from time to time, amounts to the same thing as receiving a bonus.
    The imposition of accruing bonuses has been adopted. 1. From the knowledge that a borrower will readily agree to pay, in the future, a per centage in addition to the legal rate of interest, which, if condensed into a sum payable in advance, would startle him from the project. 2. Because if a bonus is paid, the most illiterate can appreciate the amount he is to pay for the privilege of the loan; while under the other system, few borrowers are expert enough to discover the enormous sum, hidden under the phrase “one-quarter of one per cent, a month.”
    IV. There is a wide difference between the two systems, as it respects third persons. If a borrower pays a bonus in advance, the burden falls where it belongs, upon the man who has agreed to submit to the extortion. But if accruing bonuses are imposed, and security taken for their payment, subsequent incumbrancers, who were no parties to the contract, are compelled to become sufferers by the extortion.
    V. This contract, being unauthorized by the act of 1850, is void, and the mortgage, being part of the same transaction, is also void. Philadelphia Loan Co. v. Towner, 13 Conn. R., 249. Bank of U. S, v. Owens, &c., 2 Pet., 527.
    VI. If the contract is not void, it is clearly usurious, and the plaintiffs are entitled to a decree for the amount originally lent only, deducting the amounts paid on the contract. Rev. Stat., 867.
   "Waite, C. J.

The loan, made by the plaintiffs to the defendant, Wilcox, in the present case, aside from the statute, “ authorizing the establishment of savings and building associations,” was unquestionably made upon an usurious contract, and in violation of the statutes made “ to restrain the taking of usury.” For although one portion of the sum to be paid for the use of the money is called interest, and another portion a bonus, yet in truth, and in fact, it was nothing more nor less, than a contract to pay fifteen percent, for such use.

The only question therefore is, whether the former statute authorized the making of the contract in question. If it did, then the contract is valid, and Wilcox is bound to perform it; if it did not, then it falls within the operation of the statutes, prohibiting the taking of usury.

The former statute, so far as it is applicable to the case under consideration, provides that every association, formed in accordance with the provisions of this act, shall be a body corporate, and politic, with power to loan money to its members, upon real or personal security, or upon the pledge of the borrower’s stock in said association; to receive interest for money so loaned, monthly, quarterly, semi-annually or in advance; to receive for such loan or loans, in addition to the legal rate of interest, paid as aforesaid, such a bonus as the parties, in each case, may agree upon; to loan money to persons, not members of said association, at the legal rate of interest, provided no member of said association, who can furnish good and sufficient security therefor, applies for it.” Statutes, 1854, 218.

It is apparent, from that provision, that the legislature intended to authorize an association, formed under the statute, to receive a compensation, in addition to the legal rate of interest, for a loan of money made to one.of their members. But did they intend to exonerate all contracts, made with their members, from the operation of the usury laws ? We think not.

Had they so intended, they would have used language more appropriate for such purpose. They naturally would have said, that such associations might loan money to their members, at such rates of interest, or upon such terms, as the parties might agree. This language would have been plain, intelligible, and liable to no misconstruction.

But they have simply authorized th.e receipt of a bonus for the lpan, in addition to the legal interest. By that expression, we think that they meant something definite; something distinct, and independent of the interest, in the ordinary acceptation of that term-; a definite sum for a loan for a specified time, and not anything which the parties, in their contract, might choose to denominate a bonus.

But even this extra compensation can be received only from a member of the association. No loan can be made to any other person, at more than legal interest, and not even at that rate, provided any member of the association, who can give sufficient security, applies for the loan.

Again, the statute authorizes the receipt of the interest monthly, quarterly, semi-annually, or in advance, but confers no authority to receive the bonus in that manner; implying that the latter is to be paid in a different mode. It merely authorizes the receipt of a bonus, in addition to the interest^ which might be received in a specified form.

Had the legislature intended to sanction the payment of the bonus, in the manner in which the interest might be received, why did they not' say that the association might receive the interest on the money loaned, and the bonus agreed upon by the parties, monthly, quarterly, semi-annually, or in advance ?

But they have not so said, and, as we think, for a very good reason; they did not intend to authorize contracts of so ruinous á character, as the one under consideration. Their design was to benefit a class of borrowers, who might not be able to obtain loans in other modes.

The name of the present plaintiffs implies, that one object of their association was to accommodate mechanics and working-men with loans, and they say, in the preamble to their constitution, that they are desirous of enabling each member, to procure, for himself, a dwelling-house, and thus become the proprietor of his own home.

Such men can generally understand the effect of a contract for a loan, at the legal rate of interest, although a specific sum may.be required to be paid for the accommodation, for a given period of time. . If the borrower fails to pay at the end of that time, his debt is subject only to lawful interest. And how much he can afford to pay, for that accommodation, is a matter within his judgment.

But such men may not all be able to foresee the consequences of a contract like the one under consideration; a contract, by which the borrower is bound to pay fifteen per cent, per cmrmm, for the loan, so long as it continues, and from an accumulation of the debt, at that rate of interest, he has no means of extricating himself, except by a re-payment of the debt, with the accumulated interest.

This he may not, at all times, be able to do. Sickness, scarcity of money, misfortune in business, and various other causes, may prevent. And if he has mortgaged his dwelling-house for the security of the loan, he may find that the loan, instead of enabling him to become the proprietor of his own home, is sweeping it from under him, with all his other earnings, therein invested. His condition, upon a failure to pay, is very different from that of a member, who has borrowed at lawful interest, and a stipulated bonus.

The latter, under no circumstances, can be compelled to pay, in addition to a specific bonus, more than the debt, and the lawful interest, however long the debt may remain. But the debt of the former may go on accumulating, at a rate, which, if the debt be large, few men can bear, for any great length of time, without becoming ruined.

We have been referred to the statute, passed at the last session of the general assembly, providing that the bonus on certain loans made to stockholders, shall, in no case, exceed twenty-five per cent, on the amount loaned, when taken for the whole time for which the loan is made, and one-half of one per cent, per month, when taken monthly. Rev. Stat., 19. Hence it is claimed that the statute, limiting the monthly payments óf a bonus, impliedly admits the legality of such contracts under the previous statute.

That statute was passed subsequent to the making of the contract in the present case, and by an express provision, does not go into operation until the first of January, 1856. What the true construction of the statute is, is not a question properly before us, and any opinion, which we might express upon the subject, would be but an obiter dictum, not legitimately binding in any subsequent case.

It is obvious, however, that it can have no effect upon the contract under consideration, the construction of which must be governed by the law in force, when it was made. We are not to be understood as saying that the legislature had no power to authorize the making of such a contract. All we mean to say is, that, in our opinion, when it was made, there was no law in force, making it a legal contract.

It is said, by the defendants, that the contract was not merely usurious, but void, as one which the plaintiffs, by the statute empo' vering them to act, had no authority to make. And the cases of the Philadelphia Loan Company v. Towner, 13 Conn. R., 249, and The Bank of the United States v. Owens and others, 2 Pet., 527, are cited in support of the claim.

But the former ease is an authority against the defendants. Williams, C. J. there says: “In this state most, if not all, the bank charters prohibit the taking of more than six per cent., and leave the effect to be determined by the general law. It has never been claimed that a construction was to be given to such contracts, different from that given to a similar one, made by an individual.” And Judge Sherman, who differed from the other judges in that case, placed his dissent upon the ground, that the plaintiff’s charter prohibited the taking of more than six per cent, interest.

In the case in Peters’ Reports, the charter of the bank contained an express provision to the same effect.

. In the present case, the statute authorizes the company to loan money, and contains no express provision, prohibiting them from taking more than legal interest. In the language of the court in the former case, the contract must be considered in the same manner as if the loan had been made by an individual. In such case it would be merely usurious, and not entirely void.

Another question has been made, and that is, whether the payments, which have been voluntarily made on account of the bonus, are not valid. The statute, it is said, expressly authorizes the taking of a bonus, and if it does not sanction a contract, made in the form adopted in the present case, yet if, under it, a payment has been voluntarily made, it amounts to a waiver of objection to the form, and is therefore good.

In this respect, it is claimed, that the contract is like one for the payment of compound interest, which the law will not generally enforce, yet if the debtor voluntarily pays it, or embraces it in a new note, he can neither recover the money paid, in the one case, nor invalidate the note in the other. Camp v. Bates, 11 Conn. R., 487.

But a majority of the court are of opinion, that the contract, in its inception, was' usurious, and that the statutes, relating to usury, apply as well to that part denominated a bonus, as to the interest, both being of the same character. The payments, on both accounts, were made for the forbearance of the money loaned.

Another question relates to the payments, made by Wilcox to the plaintiffs, upon his subscription for stock. It is found that the subscription and payments were made, for the purpose of enabling him to obtain the loan.

But as he had a perfect right to become such stockholder, and in consequence obtained the loan, we think that the mere circumstance, that he is not liable to the full extent of his contract, does not affect his rights, or his liability, as a stockholder.

We therefore advise the superior court to ascertain the amount due upon the note, in conformity with the provisions contained in the statutes relating to usury, and pass a decree in favor of the plaintiffs accordingly.

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

Decree accordingly.


text:
    The Mechanics and Working Men’s Mutual Savings Bank and Building Association of New Haven vs. The Meriden Agency Company.
    A joint stock corporation, organized, as expressed in their articles of association, “ to do a general insurance agency, commission and brokerage business, and such other things as are incidental to, and necessary in, the management of that business,” has no power to subscribe to the stock of a savings bank and building association.
    A joint stock corporation, organized as aforesaid, in order to effect a loan of the plaintiffs, who were a savings bank and building association, subscribed for fifty shares of the stock of said association, who paid such corporation one-half of the amount of such loan, after reserving therefrom one month’s interest, and one month’s bonus of three-fourths of one per cent, on the amount of the loan, and one installment on the stock. The plaintiffs afterward advanced said corporation $5,000, the remainder of the loan, and said corporation paid the plaintiffs another month’s interest and $125 bonus, and executed their promissory note for $10,000, payable on demand, with inter- ' est, and with a bonus of three-fourths of one per cent, per month, in addition to the interest, both interest and bonus payable monthly, in advance, and to secure the payment of such note, mortgaged certain real estate to the plaintiffs. On a bill brought to foreclose said mortgage, it was held; 1. That such subscription for stock was void, and that so much of said note, as embraced the money retained for the installment paid on said stock, was without consideration. 2. That, as said loan was made to a party, who was not a member o"f said association, at a rate of interest exceeding six per cent, per annum, the contract was usurious. 3. That the amount of all the payments, made as aforesaid by the' defendants to the plaintiffs, should be deducted from the principal sum specified in said note, and a decree of foreclosure be passed, in favor of the plaintiffs, for the remainder.

      This was a bill to foreclose mortgaged premises. The cause came on for hearing before the superior court for New Haven county, at the October term, 1854, when that court made a finding of the facts, and reserved the case for the advice of this court.
    The material facts, upon which the opinion of the court is founded, are the following.
    The plaintiffs were organized in the manner, and with the powers, stated in the preceding case, in their favor, against Wilcox and others. The defendants were a joint stock corporation, organized under, and pursuant to, the statutes relating to such corporations, and were located at Meriden, in New Haven county. By their articles of association, they were to do business as insurance agents, commission merchants, and brokers ; to do a general insurance agency, commission and brokerage business; to buy, sell and deal in all articles, necessary and convenient for the prosecution of said business, and generally to do all things incidental to said business, and necessary to the management of the same.
    The agency company, by Curtis L. North, their president, professing to act for, and in behalf of the company, on or about September 15,1853, negotiated a loan of the plaintiffs of ten thousand dollars, and, in order to effectuate the loan, subscribed for fifty shares of the plaintiffs’ stock, in order to become a stockholder of the association, such subscription being required as a condition for granting the loan. The loan was bid off by the defendants,- in accordance with the constitution and by-laws of the association, and between the fifth and tenth of October, the plaintiffs paid the defendants one half of the loan, reserving
    $25.00 one month’s interest in advance.
    37.50 one month’s bonus, three fourths of one per cent.
    50.00 one month’s installment on stock subscribed.
    .75 for mortgage, procured to be drawn by plaintiffs.
    $113.25 leaving $4,886.75 net proceeds. The balance of the loan, §5,000, was paid to the -defendants on the 19th of October, making the whole amount paid, §9,886.75. The defendants afterward paid to the plaintiffs, one month’s interest, and bonus of §125, and nothing more.
    For the loan thus obtained, the agency company gave the plaintiffs their note, dated September 15th, 1853, for the sum of ten thousand dollars, payable on demand, with interest, and a bonus of three fourths of one per cent, per month, in addition to the interest, both interest and bonus payable monthly, in advance, at the banking-house of the association; and to secure the payment of the note, with its interest and bonus, a mortgage deed of certain real estate was executed and delivered to the plaintiffs. The value of the real estate mortgaged, at the time of the loan was §4,500, and at the time of the hearing, §4,000.
    The agency company, at the time of the loan, was insolvent, and became openly so, on the 19th of November following ; but there was no evidence that the plaintiffs had any knowledge of the condition of the company, at the time of the loan. All the money thus obtained was, by the proper officers, applied to the use of the company.
    There were other facts embraced in the finding, having reference to other parts of the case, and, in particular, relative to the validity of the mortgage deed, and the admissibility of a deposition offered by the plaintiffs, but as those matters were not deemed material in the final disposition of the case, and no opinion upon them was expressed by the court, a detailed statement becomes unnecessary.

      G. Ives and Blackmcm, for the plaintiffs.
    1. - The defendants were competent to borrow the money and to give their note therefor. Angelí and Ames, on Corporations, 234, and numerous authorities there cited in note 3.
    2. The loan was rightfully made on the part of the defendants, and the security given by the authority of, and under the direction of, the directors of the agency company. Rev. Stat., 227, § 200.
    Baldwin, Platt, Wright and Doolittle, for the defendants.
    I. Neither the plaintiffs nor the defendants had power to make this contract, and hence it is void.
    The association had not the power. The preamble to the constitution of this association declares the objects and purposes of its formation, and it is manifest that the association did not contemplate another corporation becoming a member thereof. Their constitution, Art. II., provides that “ any person, being twenty-one years of age, may become a member by subscribing the constitution with his signature,” &c. This means natural and not artificial persons. It contemplates savings, by a combination of labor with capital, being applicable to a natural person only. The act of 1850, authorizing the formation of the association, did not authorize a joinder of stocks or consolidation of funds, with another corporation. New York and Sharon &c. Canal Co. v. Fulton Bank, 7 Wend., 412.
    It was necessary that the Meriden agency company should become a member, in order to effect a loan with bonus. There was no authority, by any vote either of the stockholders, or of the directors of the Meriden agency company, given to their president, to sign the constitution and make the loan. If their president had no authority to bind the agency company by his subscription, thereby becoming a member, or if the association had • no authority to receive the subscription of another corporation, the contract making a loan with a bonus is void.
    II. The Meriden agency company had no power to make this contract. The Rev. Stat., 226, prescribes that a joint stock corporation shall not direct its operations, or appropriate its funds to any other purpose, than that distinctly specified by the stockholders in their articles of association.
    This corporation had no powers except those specified in its articles of association. It was organized with a capital of $100,000, to do an agency business, to act as the agents of other parties as insurance agents, commission merchants and brokers.
    Their articles of association did not contemplate the employment of the capital stock in advancing funds as insurance agents, commission merchants or brokers, as being the purposes to which the statute confines their operations. The subscription to the capital stock of another corporation, for the purpose of receiving profits on the stock, or for the purpose of borrowing money at the ruinous bonus of forty-three per cent, discount, was an “ operation,” not contemplated, or authorized, by the stockholders, in their articles of association.
    III. The contract, as it provides fot the payment of a bonus with a continuando, is in violation of the statute; is unauthorized, and therefore void. Philadelphia Loan Co. v. Towner, 13 Conn. R., 249.
   Waite, C. J.

The contract, in the present case, is substantially the same as that in the preceding one, in favor of these plaintiffs against Wilcox and others, and, for the reasons there assigned, was unauthorized by the statute, under which the plaintiffs were organized and acted, and consequently usurious. The decision in that case governs the present, so far as the power of the plaintiffs to contract is concerned. But there are other questions involved in this case, not embraced in the other, which require a brief consideration.

The first is, whether the defendants, being a joint stock corporation, organized for a specific purpose, had power to become a stockholder in the association of the plaintiffs. The purpose for which the agency company united, as expressed in their articles of association, was to do a general insurance agency, commission, and brokerage business, and such other things as were incidental to, and necessary in the management of that business. So far as that business was concerned, the proper officers of the company had power to act, and bind the company. But if they departed from that business, and entered into contracts not authorized by the company, such contracts would not be binding.

A subscription to the stock of a building association, has no legitimate connection with the business of an insurance agent, commission merchant, or broker, and was not therefore authorized by the defendants’ articles of association. It is said that the defendants had power to borrow money, mortgage their real estate for its security, and, if necessary, to obtain a loan, as in this case, become a stockholder in a building association. We are not disposed to question the right of the defendants to borrow money, and mortgage their real estate for its security. This may be one of the powers incidental to, and necessary in, the prosecution of their business, and the successful management of the same. We are inclined to think the power is implied in their articles of association.

But when the directors of the company subscribed for stock in a building association, whatever may have.been their motive, whether to obtain a loan of money, or for purposes of speculation, they transcended the powers conferred upon them, and departed from the legitimate business of the company, as much so, as if they had subscribed for stock in a manufacturing or steamboat company. Such subscription, in our opinion, is not binding upon the defendants, and any payments, made upon it to the plaintiffs, would be money received by them without consideration.

In the present case, however, no money has been paid by the defendants upon such subscription. The amount of one month’s installment was, by the plaintiffs, retained out of the loan made to the defendants. That part of the note, which embraced the money so retained, is without consideration.

If the subscription for stock was void, as we are of opinion that it was, then the defendants never legally became stockholders of the association, and consequently the plaintiffs had no power to make a loan to them, for any bonus whatever. The statute authorizes the receipt of a bonus, only upon a loan to a member of the association. No more than legal interest can be taken upon a loan to any other person. As the loan in this case was made upon an agreement to pay fifteen per cent, per annum, for the use of it, it is clearly usurious, if made to a party, not a member of the association.

Our advice, therefore, to the superior court is, that they deduct from the amount, actually received from the plaintiffs by the defendants, the sum by them paid upon the note, and pass a decree in favor of the plaintiffs, for the balance only, without interest.

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

Decree accordingly.


text:
    Edwards et ux. vs. Sheridan.
    The recent statutes of this state, relating to the estates of married -women, have not changed the common law rule of declaring upon dioses in action, accruing to the wife during coverture.
    In an action, by husband and wife, upon a chose in action, accruing to her during coverture, her interest in the suit must be explicitly stated in the declaration.
    Where, in an action, brought in the names of the husband and wife, upon a promissory note given, and made payable to her, during coverture, the plaintiffs obtained a verdict; it was held, that it was sufficient ground of arrest of judgment, that it did not appear, from the declaration, that the wife had such an interest in the note, as entitled her to unite with her husband in such action.

      This was an action upon a promissory note, payable to Maria Edwards, the wife of the plaintiff, Lewis B. Edwards, and given to her while a married woman.
    The suit was brought in the joint names of the husband and wife, to the county court for New Haven county, where the plaintiffs obtained a verdict. The defendant then moved in arrest of judgment, and his motion was sustained by that court. The plaintiffs thereupon, by motion in error, removed the case to the superior court, where it was reserved for the advice of this court.

      Baldwin and Webster, in support of the motion.
    1. When the right of action would survive to the wife, the husband can not sue alone, but must join with the wife. Gould on Plead., chap. 4, § 55. Reeve’s Dom. Rel., 126. 10 Pick., 463. 1 Chit. PL, 35.
    2. The wife may join her husband in a suit, where she has a beneficial interest, or is the meritorious cause of action. 1 Chit. PL, 33. 21 Conn. R., 573. 21 Wend., 202.
    3. A married woman, under certain circumstances, may have separate estate, over which the husband has no control, and which survives to her. Stat., 377. Fuller and Wife v. N. R. R. Co., 21 Conn. R., 573.
    4. This declaration sufficiently discloses the wife’s interest, to justify the use of her name as co-plaintiff; the promise is made to her, and the consideration will be presumed to move from her. 21 Conn. R., 573. 1 Chit. PL, 34, 713.
    5. The court is bound, after verdict, to presume the facts to have been proved, to constitute a right of recovery in the wife. 1 Chit. Pl., 712, 713. 1 Steph. Nisi Prius, 743, 744. 21 Conn. R., 593. Gould’s Plead., ch. 10, § 12,13. 6 Eng. Law & Eq. R., 7. 22 E. C. L. R., 498, 500. 6 Cush., 23. 6 M. & N., 423.

      N. J. Sf T. S. Buel, against the motion.
    I. It has been settled, as the common law of Connecticut, by a long course of judicial decisions, that a chose in action, accruing to the wife during coverture, vests absolutely in the husband, and does not survive t(? the wife. Griswold v. Penniman, 2 Conn. R., 564. Cornwall v. Hoyt, 7 Conn. R., 420. Whittlesey v. McMahon, 10 Conn. R., 137. Morgan v. Thames Bank, 14 Conn. R., 99. Ecc. Soc. Middletown v. Mather, 15 Conn. R., 587. Hawley v. Burgess, 22 Conn. R., 284.
    II. A note, payable to a married woman during coverture, is payable to the husband, and can be sued on only in his name, or that of his representatives. Cornwall v. Hoyt, 7 Conn. R., 420. Ecc. Soc. Middletown v. Mather, 15 Conn. R., 587. 1 Sw. Dig.
    III. The statute laws of this state, securing to married women their property, have not changed or altered the law, as to the proper plaintiff in an action at law, on a note made payable to a married woman during coverture. They have only varied the common law so far as this; that a chose in action, accruing to the wife during coverture, instead of vesting in the husband absolutely, vests in him as trustee during his life, for the use of the wife, and at his death, vests in the wife, or her representatives. Rev. Stat., 376, 377. 1. The object of these several statutes was two-fold. To protect the wife’s property from being taken for the husband’s debts; and that upon his death, it shall vest in the wife, or her representatives, instead of the representatives of the husband. 2. In doing this, the legislature have carefully guarded •against interfering with the legal rights of the husband, as to the care, use and control of the property of the wife, and have vested in him, as trustee, during his life, for the use of the wife, the entire legal title and interest of her personal property. 3. Upon the death of the husband, the wife does not become invested with the title to her personal property, or dioses in action, by survivorship, but by virtue of the express provisions of the statute.
    IY. The husband being the trustee of the wife’s personal property, and of the note in suit, and having the sole legal interest in it as such trustee, the suit upon it must be in the name of the husband, and the wife can not join. 1 Sw. Dig., 618. 14 Conn. R., 445. 1 Chit. PL, 2, 3.
    V. The act of 1850, ch. 33, does not give to the wife, during coverture, the legal title to property, acquired by her, during an abandonment of her husband, &c., but only the sole and separate use; and this is evident, from the provision in the same act, that after the termination of the coverture, it shall belong to her as a femme sole.

    VI. No intendment that the court can make will cure the misjoinder of plaintiffs. The wife could in no event join, without allegations showing her title, and right to join. There being no such allegations, evidence to prove the same would not have been admissible. This is not a case of defective statement, but of no statement at all. It is a misjoinder of plaintiffs, that can not be helped out by intendment. 1 Sw. Dig., 805.
   Waite, C. J.

By a uniform course of judicial decisions, for nearly forty years past, it has become the established common law in this state, that choses in action, accruing to the wife, during the coverture, vest absolutely in the husband, and do not, upon his decease, survive to her. Consequently suits, for the recovery of the moneys due upon them, must be brought in his name, and not in their joint names. And even if it be shown that a promissory note was given to a wife, upon the sale of her land, the note and the avails of it, aside from the provisions of any statute, vest absolutely in the husband, without any reference to the circumstances connected with the consideration.

This doctrine has been so often recognized and repeated by our courts, that a review of the decisions becomes unnecessary. It is enough merely to refer to them. Griswold v. Penniman, 2 Conn. R., 564. Cornwall v. Hoyt, 7 Conn. R., 420. Whittlesey v. McMahon, 10 Conn. R., 137. Morgan v. Thames Bank, 14 Conn. R., 99. Ecc. Soc. Middletown v. Mather, 15 Conn. R., 587. Hawley v. Burgess, 22 Conn. R. 284.

It is said that the rule of our common law, upon this subject, has been varied by several recent statutes; that one provides that all personal property accruing, during coverture, to any married man, in right of his wife, by virtue of a bequest or distribution, and all property derived from the sale, or re-investment thereof, shall vest in him, in trust for the use of the wife, and upon Jiis decease will'survive to her or her legal representatives. Stat., 1849. In another, it is provided, that, in every case when the real estate of a married woman is sold, and the price, or avails, invested in her name, the same shall, in equity, be deemed to belong to her. Stat.,' 1850.

Hence it is claimed, that, as these statutory provisions, and others of a similar character, have made such material alterations in our system, the whole ought to be considered as changed, and in conformity with the principles established by those statutes. But we can not yield our assent to this claim.

So far as changes in our law have been made by the legislature, their acts must govern. If further alterations are necessary, it is for the legislature, and not for the courts, to make them. In the former case, the alterations will be prospective in their operation, and not, as in the. latter case, breaking up titles, that have been considered as vested under existing laws.

As the case under consideration falls clearly within the general rule, as established in this state, and not within any of the provisions created by statute, the rule must govern.

Finally, it is said, that under a motion in arrest, the court ought to presume that the note in question was given for property óf the wife, which, by statute, she was entitled to hold as her own, and that consequently the right of action upon it would survive to her, and therefore she may unite with her husband, in a suit to recover the money due upon it.

If the fact were so, that she had such an interest in the note, as entitled her to unite with her husband, in a suit upon it, that fact ought to be made to appear upon the face of the declaration. The mere circumstance, that the note was made payable to her, in our opinion, is not sufficient for that purpose. It might, or it might not, have been given for her property,- depending upon other facts not stated in the declaration.

The alterations, made by the statutes, constitute exceptions to the general rule, founded upon particular circumstances. To relieve the case, therefore, from the operation of the general rule, the declaration ought to contain such allegations, as will show that the case is brought within one of those exceptions. That not having been done, we are of opinion that the county court was justified in arresting judgment, and we so advise the superior court.

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

Judgment affirmed.


author: Stokrs, J.

text:
    French and others vs. White.
    The statute, relating to the draining of lands, passed in 1853, (Rev. Stat., tit. 47,) does not authorize the county court to empower the owners of lands to drain them, in such a manner that the water will be discharged from them, and he deposited, and remain, on the land of adjoining proprietors, but only to drain them across such adjoining lands.

      Therefore, where, upon an application to the county court for power to drain the petitioner’s land, “ on to the premises of the respondents,” freeholders were appointed, according to the provisions of said act, to prescribe the best mode of doing this, who, in their report, ordered that the petitioner have the right to drain his land “ on to and upon the land of the respondent,” and that the petitioner have “ leave and license to construct, and repair, a drain, terminating at a point on the respondent’s land, and it was not shown that the water, in such drain, would be thence conveyed from the respondent’s land, the court accepted such report, and passed a decree pursuant thereto ; it was held, that the court and freeholders had exceeded the powers conferred upon them by said act.
    This was a petition, brought to the county court for New-Haven county, by Isaac White, against Alfred French and others. Said petition alleged substantially, that the petitioner was the owner of a tract of land, with a dwelling-house and barn thereon, which land, in the spring of the year, and in all wet and rainy seasons, is to a great extent overflowed with water to a considerable depth, and that said water frequently overflows a portion of .the yard next adjoining the barn on said premises, so as greatly to incommode him in the use of said barn, and the yard thereto adjoining. And that the ground, so overflowed by such water, is greatly injured and deteriorated in value, and rendered nearly useless; and that a large pond of water is made to collect and stand upon said ground, greatly to the damage and annoyance of the petitioner, and to all persons living in the immediate vicinity of said premises; that, situated westerly from said premises, and adjacent thereto, on the westerly side of the road, bounding said premises on the west, there is a piece of low, marshy land, owned by the respondents; that a portion of said last described premises is low, swampy and marshy land as aforesaid, through which there is a brook running from said premises to convey the water off the same, and that said premises, last described, are next adjoining the premises of the petitioner, divided only by a traveled highway between the same; that, by aid of a drain from the premises of the petitioner, under said traveled highway to the last-described premises, said water has bee.n accustomed to flow for a period of some nineteen years uninterrupted, and causing no damage or injury to said last-described premises, and thereby draining the premises of the petitioner from said waters so collected, and that Alfred French, one of said proprietors, and the occupant of said last-described premises, contriving and intending to injure the petitioner, has stopped up said drain, and prevented the draining of the premises of the petitioner, as it has formerly been done; that the natural course to drain the premises of the petitioner is, to allow the water to run westerly under said road, and on to the premises belonging to the heirs of Nancy French, deceased, as herein before described, and that he is unable to agree with said proprietors of said adjacent lands as to the mode of draining the petitioner’s land on to the land of the respondents, and the amount of the damages consequent thereon; praying the court to empower him to drain his premises on to the premises of said respondents, in such manner, and on such terms:' and conditions, as are prescribed in a certain statute law of this state, entitled, “An act to enable the owners of lands to drain the same,” passed May session, 1854.
    At the term of said county court, holden in December, 1854, a committee of freeholders of the town, within which said lands were situated, was appointed to prescribe the best-mode of draining said land, and to assess the damages which would thereby accrue to the respondents, and to be clothed with all the powers, and to proceed according to the provisions of the act aforesaid.
    At the same term of said court, said committee made their report, stating, that having heard the parties, pursuant to the order of said court, they were of opinion, and did adjudge, that the lands of the petitioner were flooded as described in said petition, and required to be drained, and that the best mode of draining the same was by a canal, or drain, running westerly from the land of the petitioner under said highway, and on to said lands of the respondents; and did therefore order, and adjudge, that the petitioner shall have the right and privilege to drain his land on to, and upon, the said land of the respondents, and that said petitioner have leave and license to build, open, construct, or repair a canal, or drain, from a point in the land of the petitioner, “ through, and on to, the land of the respondents,” in a manner described in said report, and to terminate at a point on the land of the respondents: the said petitioner to be clothed with full power to construct a drain, or ditch, or gutter, of such size and dimensions, as shall be able to convey all water from his said premises, in as full and ample manner'as he shall desire; with full power to enter upon said land of said respondents, by himself or servants, with all necessary implements and teams, for the construction or repairs of said drain, within such reasonable time as shall be designated and appointed, with full power of repairs and inspection, at any and all times hereafter, without liability to account therefor.
    Against the acceptance of this report, the respondents remonstrated. But the court accepted the same, and decreed that the petitioner, by himself, and his servants and teams, should have full power and authority to enter into and upon said premises of said respondents, pursuant to said report thereto annexed, and should be clothed with all the powers and privileges given by said statute and said report, to construct, erect and make said drain, and repair the same, thereby affirming and decreeing all that said freeholders, in their said report, had adjudged and done.
    The respondents thereupon, by motion in error, brought the record before this court, for revision.

      H. B. Munson, in support of the motion.
    I. The petition is insufficient. It asks for liberty, or power, to drain upon, instead of across, the respondent’s land. Draining water upon land, and then. leaving it, is very different from draining or conducting it across. The statute contemplates conducting the water across the land in a ditch ór aqueduct.
    2. The decree is erroneous, for it decrees a right which the statute does not authorize, viz., “to drain on and upon the land of the respondents,” instead of across it.
    3. This statute being in derogation of . the rights of the citizen, should at least be strictly construed. Strong v. Burchard, 5 Conn. R., 357.

      Wooster, contra.
    As the petitioner prays for the right to drain his premises on to the premises of the respondents, in such manner and on such terms and conditions as are prescribed in the statute entitled “ An act to enable the owners of land to drain the same,” he prays for the right to drain across said premises.
    The right to drain across includes the right to drain on to, as the greater includes the less.
   Stokrs, J.

We are of opinion that the county court, and the freeholders, appointed by it to prescribe the best mode of draining the land of the petitioner, clearly exceeded, in their proceedings in this case, the powers given to them by the act on' which they were founded. The freeholders, in their report, state that they are of opinion that the premises of the petitioner, described in the petition, require to be drained, and that they adjudge that the best mode of draining them is by a drain, running westerly from said premises, “ on to ” the adjoining lands of the respondents ; and that they therefore order that the petitioner shall have the right and privilege to drain his land “ on to and upon the said land of the respondents,” and that he have leave and license to build, open, construct and repair a drain, commencing at a well, standing upon said land of the petitioner, and terminating at a point on the land of the respondents, (the line, course and termination of which are particularly described,) of such size and dimensions, that it shall be able to convey all the water, from the premises of the petitioner, in as full and ample a manner as he shall desire, and to enter upon said land of the respondents, for the construction of such drain, within such time as the court shall designate, and to repair and inspect the same, at any and all times thereafter. It appears, by the description of the said drain in this report, that it would terminate on the respondents’ land, and not extend across it; and nothing is stated in it, by which it is shown, or can be inferred, that the water in the drain would be thence conveyed from it. The court accepted the report, and affirmed, and decreed “ the matters therein contained,” and “ all that the said freeholders had therein said, adjudged and done;” and gave “ full power and authority to the petitioner,” on and after a day designated, “ to enter in and upon said premises of the respondents, pursuant to said report,” and conferred upon the petitioner, “ all the powers and privileges, given by said report, to construct, erect, and make said drain, and repair the same.”

The act, on which this petition was brought, by its terms only authorizes the county court to empower the owners of lands, which require draining, to drain them across the lands of adjoining proprietors. It does not authorize that court to allow them to drain their lands in such a manner, that the water will be discharged from them, and be deposited and remain on the lands of such adjoining owners. There is no principle by which the power, thus specially conferred- on that court, can be so extended, by construction, that it can authorize the owners of lands to drain them in that mode; and if the strict meaning of the language used in the act, could be departed from, such a construction would be most unreasonable, and plainly contrary to the intention of the legislature. As these proceedings are defective in this particular, the judgment complained of should be reversed.

The disposition of the case, on this point, renders it unnecessary to consider the other questions that have been made.

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

Judgment reversed.


author: Hinman, J.

text:
    Birdsey vs. Vansands.
    Proceedings, instituted, by a creditor, for the purpose of procuring the appointment of a trustee of an insolvent debtor’s estate, pursuant to the provisions of the statute of 1853, relating to the settlement of assigned estates, can not be defeated by a voluntary assignment made by the debtor, subsequent to the commencement of such proceedings.
    This was an appeal from a decree of the court of probate for the district of Meriden.
    On the 10th day of February, 1855, Lot D. Vansands presented a petition to said probate court, alleging that he was an attaching creditor of Edwin Birdsey, and that Birdsey was insolvent, and praying for the appointment of a trustee to take possession of Birdsey’s property, for the benefit of his creditors, under the statute, entitled “ An act for the relief of insolvent debtors, and for the more equal distribution of their effects among their creditors.”
    Upon the hearing of said petition, Birdsey admitted that the allegations in said petition were true, and offered in evidence a voluntary assignment of his estate, made by him, on the 15th day of said Fébruary,to Joel Miller, in trust for the benefit of all his creditors, pursuant to the provisions of the statutes relating to the settlement of insolvent estates assigned for the benefit of creditors. Said assignment, which was, in other respects, in the usual form, contained the following clause. “ And if my said trustee should decline to accept and execute said trust, I hereby reserve to myself the power of appointing another trustee in his stead, and in place of any other trustee, hereafter appointed by me, who may decline said trust.”
    The probate court found that said assignment was in all respects made and executed according to law, and had been duly lodged in the office of said court for record, and ordered that said petition be dismissed.
    Vansands thereupon appealed from said decree to the superior court for the county of New Haven, assigning, among other matters, as reasons for appeal, that on the 16th day of December, 1854, one Charles Parker caused to be attached certain real estate of said Birdsey, in a suit then pending, and which was brought to secure a debt due from said Birdsey to-Parker, of about $1,200 ; that the assignment of Birdsey, lodged for record in the office of said court of probate, on the 15th day of February, 1855, being more than sixty days from the day of the issuing and service of said attachment, was fraudulent and void, as against the creditors of Birdsey, because the same was made by Birdsey, when in failing circumstances, with a view to his insolvency, and during the pendency of the petition of the appellant, and with the intent to prevent the granting of said petition, and to procure the dismissal thereof, and thereby to aid the said Parker in obtaining, by virtue of his attachment, a preference over the appellant, and the other creditors of Birdsey, contrary to the true intent of the statute.
    Said superior court, at the term holden in April, 1855, found the reasons of appeal, assigned by the appellant, to be true, and thereupon reversed the decree of the probate court. Birdsey, by motion in error, then brought the case before this court.

      Wright and Doolittle, in support of the motion.
    I. The right to convey property is inalienable. 1 Sw. Dig., 18. 11 Kent. Com., 820.
    II. A party can be devested of this right, only by the interposition of a positive law, or by a decree of court, when adjudged in default. 6 Conn. R., 281. 9 Conn. R., 181. 7 Conn. R., 46, 48.
    The appellee has not been deprived of this right, by positive law. On the contrary, the statute expressly recognizes “ an assignment for the benefit of all creditors.” Rev. Stat., 512. The statute, §§ 2,4, moreover, contemplates an assignment, for the purpose of arresting proceedings by the debtor, for the benefit of even one creditor. The statute expressly recognizes the right of alienation of property, by the debtor, until the appointment of a trustee.
    III. The appellee has voluntarily done that which ought to be done, and that which he is asked to do, viz., conveyed his property for the benefit of all his creditors. The legal effect is the same, whether the trustee takes an interest by operation of law, or by contract. The lien, created by the attachment of Parker, was vacated by the deed of assignment, and the right to make an assignment, while the application is pending, is recognized by law. Rev. Stat., 514. 1 Kent. Com., 461. Wolcott v. Pond, 19 Conn. R., 597.
    The court dismisses the application of Vansands, because the court has recognized the appointment of a trustee, by the debtor, vacating all previous liens. The argument, that, upon each application, there is an abstract right to have a trustee appointed by the government, proves too much, because any creditor may, under the statute, make his application, and insist upon the appointment of a trustee. The statute expressly recognizes the right to make a general assignment, for the benefit of all creditors, and declares all others fraudulent. It is an impossibility that an assignment, for the benefit of all the creditors, can'be fraudulent.

      Baldwin and Sayles, against the motion.
    1. The petition of the appellant to the court of probate, for the appointment of a trustee, is legal and sufficient; the allegations therein are admitted to be true; and the decision of the superior court, in this case, reversing the decree of the court of probate, by which this petition was dismissed, is sustained by the law of this state. Rev. Stat., 513.
    2. The assignment of the appellee, if a valid instrument, could not, by its operation, defeat the petition, the same being prior to the assignment, and pending before said court of probate, when this assignment was lodged for record, in the office of said court. Rev. Stat., 512, 513.
    3. The dismissal of said petition, because the assignment of the respondent was lodged for record, in the office of the court of probate, prior to the appointment of a trustee, as prayed for, or because the assignment would secure to the petitioner, and the creditors of the assignor, all their legal rights and benefits, is in contravention of the statute before cited; and of one of the rules of construction of statutes, adopted by this court. Rev. Stat., 514. 1 Sw. Dig., 12.
    4. The law does not' provide for the substitution of the debtor’s assignment for the pending application of the creditor, for the appointment of a trustee.
    5. The assignment is fraudulent' and void, as against the creditors of the -assignor, because he intended thereby, to defeat the petition of the appellant, and because he intended to prefer, and did prefer, his creditor, who had attached his estate.
   Hinman, J.

While the plaintiff in error was prosecuting his application for the appointment of a trustee of the estate of the defendant, under the second section of the act of 1853, for the relief of insolvent debtors, and the more equal distribution of their effects among their creditors, Rev. Stat., 513, the defendant made a voluntary assignment of his estate, under the provisions of the same act; and the court of probate, thereupofi, on the defendant’s motion, dismissed the application. We think the probate court erred in thus dismissing the application, and the decision was properly reversed by the superior court. The proceedings on the part of the plaintiff were regular in point of form ; they are expressly authorized by the statute, and, being prior in time to the voluntary assignment,.ought not to be defeated by it, after expense has been incurred in the commencement and prosecution of the application. Besides, if anything more is required on a point of this sort, the finding of the superior court is, that the defendant’s assignment was fraudulently made, with the intent to defeat the plaintiff’s application, and thereby to aid one Charles Parker, who had attached his property, in obtaining a preference over the other creditors. This, being in fraud of the statute, ought not to have been sustained by the court of probate. We, therefore, do not find any error in the judgment of the superior court.

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

Judgment affirmed.


text:
    Vansands vs. Miller.
    The receiving and recording of an assignment, made by an insolvent debtor, pursuant to the provisions of the statute, relating to the settlement of insolvent estates assigned for the benefit of creditors, are ministerial acts.
    The probate court may receive and record a voluntary assignment of the estate of an insolvent debtor, though made during the pendency of a petition, by one of his creditors, for the appointment of a trustee of such debtors* estate, under the statute, entitled “An act for. the relief of insolvent debtors, and for the more equal distribution of their effects among their creditors.”
    A voluntary assignment is not rendered void, by a provision, that if the trustee therein named should decline to accept and execute said trust, the assignor should have the power of appointing another trustee in his stead, and in place of any other trustee, thereafter appointed by said assignor, and who might decline said trust.
    This was an appeal from a decree of the probate court for the district of Meriden, accepting the assignment of Edwin Birdsey to Joel Miller, and ordering the same to be recorded, which is referred to in the preceding case of Birdsey v. Vansands.

    The appellant assigned the following reasons of appeal. 1. That said assignment was fraudulent and void as against, him, and other creditors of Birdsey, because made by him when in “ failing circumstances, with a view to his insolvency,”. and during the pendency of the petition of the appellant before said court of probate, praying for the appointment of a trustee to take possession of the property of Birdsey for the benefit of all his creditors, under the provisions of the statute, entitled, “ An act for the relief of insolvent debtors, and for the more equal distribution of their effects among their creditors;” and that said assignment was so made, and lodged for record, for the purpose of defeating said petition, and of preventing the prayer thereof being carried into effect by appointment of a trustee, as prayed for.
    2. That, on the 16th day of December, 1854, Charles Parker caused to be attached certain real estate of said Birdsey, in a suit brought to secure a claim of about $1,200, due from said Birdsey to Parker, which suit was still pending; and that said assignment was so made and lodged, with the intent to procure the dismissal of said application for the appointment of a trustee by said court of probate, on the said 15th day of February, A. D. 1855, in fraud of the policy of said act, as well as the rights of said appellant, and, sixty days having then elapsed since the making of said attachment, with intent to make effectual the said attachment, to secure in whole, or in part, the said debt of the said Parker, and prevent said appellant from receiving any part of said property so attached, as aforesaid, in satisfaction of his debt, described in his petition for the appointment of a trustee, as by said act, and by virtue of said proceedings, he was entitled to, in common with the other creditors of said Birdsey.
    3. That said assignment was made and lodged in the office of said court of probate, on the said 15th day of February, not only for the purpose of defeating the prayer of said petition, but of aiding the said Parker in obtaining, by. virtue of his attachment, a preference over the appellant, and other creditors of said Birdsey, contrary to the true intent of the statute, in such case provided.
    The superior court found the reasons of appeal true and sufficient, and ordered the decree of the court of probate, appealed from, to be set aside. The appellee thereupon filed his motion in error, and brought the case before this court.

      Baldwin and Bayles, in support of the motion.
    1. The decision of the superior court, reversing the decree of the court of probate, is in accordance with the spirit of the “Act for. the relief of insolvent debtors,” because said decree established-, as valid and sufficient, a void assignment.
    The assignment of Birdsey is void, as against the creditors of the assignor, by the terms and meaning of the statute referred- to, because it was made by the assignor, when “ in failing circumstances, and with a view to his insolvency,” and not m'a'de for the benefit of all his creditors. B.ev. Stat., 512.
    2. Said assignment is fraudulent and void, as against the creditors of the assignor, because he intended to prefer, and did prefer thereby, one of .his creditors.
    3. If the assignment was not fraudulent, it conveyed no estate of the assignor, for all his estate was held by the prior application of the appellant, to the court of probate, for the appointment of a trustee, for the purpose expressed in the statute referred to; and said estate was thereby* prevented from passing by said assignment, to the appellee, as assignee. Rev. Stat., 513.
    4. Whether the assignment was, or was not, fraudulent, if it conveyed nothing, the court of probate ought to have treated it as void; and ought not to have ordered the same to be recorded, to become, as it might, the means of future litigation, or the source of suspicion against the legal title to the property, therein described.'

      Wright and Doolittle, against the motion.
    I. The statute imperatively requires the court of probate, when an assignment is presented, to receive it for record, Rev. Stat., 512, and a mandamus will lie for a refusal to do this.
    II. The act of receiving the assignment for record, was a mere ministerial act, not a judicial act, or judgment, but an act which may be done by the clerk, from which no appeal lies. The clerk is “ to receive for record,” the assignment, that is to say, he is to record it, and enter the date of its reception for record.
    III. It is said that the reception for record threw^ over the title, that the assignee, to be thereafter the court, would thereafter receive and acquit deed of assignment was presented for recos judge, nor clerk, could tell that Vansands wc application, or that any decree would be r^ Birdsey.
   Hinman, J.

We think the court of probate was correct in receiving*and recording the assignment of Edwin Birdsey. It appears, on its face, to have been made with reference to the act of 1853, the first section of which makes it the duty of the judge, or clerk of probate, to enter, on all such assignments, the time when they are received for record, and provides that the record shall bear the same date, and that the assignment shall take effect when so lodged for record. As the same power, in this respectáis given to the clerk as to the judge, and it is made the duty of both to receive for record all documents of this sort, it appears to us that the reception and recording are rather ministerial acts, in which no judicial action is implied. Stat., ed. 1854, p. 512.

Again, we do not see what interest Vansands has in defeating the voluntary assignment. He claims no interest in any property affected by it, and as a mere creditor of Birdsey, his interest is to support it, if there is any property on which it can operate. The suggestion that its reception would throw a cloud over the title, which he was seeking to obtain for the trustee, to be appointed by the court of probate, seems to be rather fanciful than real. A multiplicity of conveyances may sometimes embarrass a title. But this is not a case of that sort. Vansands’ application, if successfully pursued, will effect a transfer of all the property, not exempted by the statute, which Birdsey had at the time; and, if there is no subsequently acquired estate, it will defeat the operation of the voluntary assignment, for the reason that the compulsory process is prior in point of time. On the other hand, if the debtor had subsequently acquired estate, and chose to assign it, it would obviously be for the benefit of all his creditors, of whom Vansands is one.

We do not think the reservation of power to name a subsequent trustee, rendered the assignment void. If it is inoperative, because the power to appoint subsequent trustees is given to the court of probate, we do not think it ought to affect the other parts of the conveyance.

The judgment of the superior court is therefore reversed, and the order of the court of probate affirmed.

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

Judgment reversed.