Connecticut. Supreme Court of Errors.

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commissioners to find it. Tliere can be no doubt that, in
effect, the latter case overrules the former one. We accept
the rule as adopted in the latter case because it is the later
one, and because it is of vital importance that it should be
settled, and not very important which tribunal finds the facts.

But while we thus, for the reasons stated, assent to the
principle that the court of probate may go behind the com-
missioners' report, in marshaling the assets, we are by no
means satisfied with other views and the reasoning adopted
in the case, and the condition in which it leaves the law.

The judge of the court of probate is not a chancellor. He
possesses chancery powers, but they are only such as are inci-
dental, connected with the settlement of a particular estate,
and necessary for the adjustment of equitable rights ; and
not to find and enforce equities, in the ordinary and loose
sense in which that term has come to be used in the law. If
there are trusts connected with the property, or liens upon it,
or priorities enforceable in equity, — if through fraud, accident
or mistake, a class of creditors or beneficiaiies are entitled
of right to relief as against other creditors or beneficiaries,
he may marshal or distribute the assets so as to enforce or
satisfy the right. But it must be a right — one which a court
of equity would take cognizance of and enforce, if applica-
tion could be made to such a court. In Hotchkiss v. Beach
there was a then supposed equitable right of priority. A like
right existed in Peck v. HarriBon^ (23 Conn., 118) in favor
of other creditors, one being satisfied by a lien.

It is not easy to discover what right existed on which a
priority in favor of one class of creditors against the Grove
Car Works could be founded. The court of probate did not
find any precise right and seems to have been governed by a
general sense of equity. The facts of the case so far as they

Digitized by VjOOQIC


Tail's Appeal from Probate.

appear in Waterman^a Appeal and A%hmead^B Appeal^ do not
show such right ; nor is it easy to discoTcr what precise right
the Supreme Court found in AshmeacCa Appeal. The judge
who gave the opinion in that case, says : *' A reference to the
fa(5ts as they stand on the record is sufficient to show that
^ there is a clear and undoubted equity in the appellees' favor.
They became creditors after the company was formed under
the statute, by supjjying it from time to time with goods, as
it needed them to carry on its regular business upon a pro-
fessed capital of $200,000. But the appellants stand in no
such position. They had large claims against Fales & Gray
which they wished to make more safe and secure, and to that
end formed a joint stock company, a sort of partnership with
Fales & Gray, with a clear, unincumbered capital of $200,000,
and the company at once assumed the debts. The company
went on a short time, then failed and assigned, but not until
they had received from the appellees and the class of creditors
to which they belong, property to the amount of $23,000.
Their capital, as we have said, was to be $200,000, but it
turned out in fact to be but a small part of that sum, for
there is but about $20,000 in the whole for distribution. We
think that of this the appellants are not entitled to receive
any part until the appelleefi-are first paid in full. Tliey them-
selves declared to the appellees and to all others by their
public proceedings, and especially their certificates left with
the secretary of the state and with the town clerk, that the
company had a clear capital of $200,000. After this we
think they cannot deny it or come in to carry off* any portion
of the capital to the prejudice of bond fide creditors. Tlie
injustice of such a course will be most apparent if we lay
the stock company out of view and regard the appellants as
partners assuming a corporate organization for their greater
convenience. This we may do, and we think ought to do, in
furtherance of justice and equity." * * * *'But here is a
fund of some $20,000 subject to distribution by (he order of
the court, and how shall distribution be made ? Shall it be
according to justice and equity and with reference to the
liens and trusts which adhere to it, or shall no regard be had

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AUGUST TERM, 1870. 19T

Tdl'8 Appeal fh>m Probate.

to soch equities ?'' • • « Thig court held in the late case
of Peck V. Harrisony (28 Conn., 118,) that although a debt is
reported by commissioners to be due, yet if it is afterwards
paid, it may be expunged from the report by the judge of
probate, so that in this instance the report was not the only
and absolute rule of apportionment. Why then ought it to
be in the administration of a fund subject to equitable liens
and trusts ? If the law permits it, and equity and justice
demand it, why cannot the judge discriminate between classes
of creditors as to specific fVmds T We think he may."

It is not clear from these extracts from the opinion of the
court, (and they are all that bear upon the point,) what kind
of equity they found in favor of the creditors preferred, nor
on what precise ground they intended to place the decision, —
whether on the ground of estoppel, or fraud, or upon the
ground that looking through the corporate shell they could
see that the creditors whose debts were assumed were part-
ners and therefore debtors in eflTect in their relation to the
other creditors, or upon " trusts or liens adhering to the
estate," or upon a mere general impression of justice and
equity — for all are alluded to and apparently relied upon in
the opinion. And by reference to Waterman^s Appeal it ap-
pears that the facts were not fully comprehended, for the
corporation received $340,000 in property as capital and fifty
per cent, of the amount of their debts in cash for stock of the
creditors, and did not assume the debts without any equivalent
beyond the capital.

We have thought it our duty to be thus critical in relation
to that case because it is apparent that counsel and the court
of probate were misled by it in this case, and that it is calcu-
lated to mislead other judges of those courts and the pro-

Judges of probate should understand that they are not to
decree priorities between classes of creditors whose claims
are allowed by commissioners, nor in any case, on any loose
impressions of "justice and equity," nor unless such priority
is founded on a clear, definable and specific equitable righty
recognized as such in equity jurisprudence, and one which a

, Digitized by VjOOQIC


Tail's Appeal from Probate.

court of equity could and would protect and enforce, if appli-
cation could be lawfully made to such court therefor.

In this case the supposed equitable right on which the
decree of the court of probate was founded, was a trust in
Charles B. Coe, in favor of the creditors of S. W. Coe & Son.
The property assigned by Charles B. Coe, the avails of which
are now in the possession of Dickinson, was mainly derived
from S. W. Coe & Son, and the court of probate found that
the conveyance was not an absolute sale but a trust, and that
the property purchased afterward by Charles B. Coe was also
trust property pm'chased with trust money in furtherance of
the trust. If that was so, what claim had S. W. Coe & Son
upon it as creditors^ or how can they be creditors of the
estate ? They are not the cestui que trusts. The creditors
of S. W. Coe & Son sustain that relation to the fund. They
have not paid the cestui que trusts — the creditors of S. W. Coe
& Sou, and become subrogated to tlieir rights. Nor was it
competent . for them to present a claim as creditors in behalf
of the creditors of S. W. Coe & Son. If therefore, in point
of fact, the conveyance from S. W. Coe & Son to Charles B.
Coe was not a sale, but was a trust — in relation to which we
express no opinion — S. W. Coe & Son did not become cred-
itors of Charles B. Coe unless for a balance after the cestui
que trusts were paid, nor was the properly assigned by Charles
B. Coe estate which could be assigned, except as subject to
the trust in favor of the creditors of S. W. Coe & Son.

We do not doubt the admissibility of parol evidence to
prove an express trust in relation to personal estate, although
the rule is otherwise in relation to real estate, and we have
looked carefully at the finding of the Superior Court to see
if the decree could be sustained on the ground tliat justice
had been done. But the Superior Court has not found a trust
in terms, nor such incontrovertible facts as would justify us
in assuming that the claimed tinist existed and must necessa-
rily be found whenever and however the question should be
tried. We are not at liberty therefore to sustain the decree
on that ground.

Without therefore determining the question whether the

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AUGUST TERM, 1870. 199

Bronson v. Town of Soathbuiy.

conveyance from S. W. Coe & Son to Charles B. Coe was, or
was not, a trust, we arrive at the conclusion that if it was
such, the decree of tlic courtof probate, giving a priority to
S. W. Coe & Son as creditors, founded on the supposed trust,
is not sustainal3le, and that the decree of the Superior Court
must be reversed.

In this opinion the other judges concurred ; except Sby-
MoiTR, J., who having been counsel in the case when at the
bar, did not sit.

• ♦•

EuzABBTH Bbonson VS. Thb Town op Southbury.

The plaintiff sent her son, between eleven and tweWe yean old, with a hone and
wagon, on business, a distance of six miles, the road crossing a narrow bnt
rapid stream which was subject to sudden oyerflows in heavy rains. The boy
was a good driver and acquainted with the road. A sudden freshet in the
river had raised the water so that it flowed over the bridge, and for a little dis-
tance over the approaches to it, to the depth of about a foot The bridge was
low, and both the bridge and the approaches to it were without a railing, and
the road near the bridge was narrow and difficult to turn in. In attempting
. to cross, the boy in some manner got into the river with the horse nnd wagon,
and both the boy and the horse were drowned and the wagon broken. In a
suit against the town to which the bridge belonged for the damage to the horse
and wagon, it was held — 1. That the town was guilty of gross negligence in
leaving the bridge and the approaches to it unprotected by a railing. 2. That
the plaintiff was not guilty of want of ordinary care in sending such a boy in
charge of the horse and wagon upon such a road. 3. That it was enough if
the boy exercised reasonable care according to his age and capacity, although
he might not have exercised the judgment of a person of mature age.

Held also that the defendants were not excused from keeping the bridge in proper
condition as to height and railing, by reason of the fact that if higher and with
a railinp: it would be in greater danger of being swept away by the ice in
spring frc8hi!ts.

AcnoN on the statute concerning highways and bridges, to
recover damages for the loss of the plaintiff's horse and in-

37 190

63 »r,

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Bronion v. Town of Sonthbury.

jury to ber wagon, by reason of tbe negligence of the defend-
ants in not maintaining a railing upon a bridge and tbe bigh-
way adjacent to it, wbicb were a part of a public highway of
tbe town. Tbe case is sufficiently stated in tbe opinion. Tbe
jury returned a verdict for tbe plaintiff, and tbe defendants
moved for a new trial on tbe ground that tbe verdict was
against tbe evidence.

Cf^. 0. Woodruff and JST. B. Munsony in support of the

Graves and U. W. Seymour j with whom was McMdhon^

Foster, J. On the 14th of May, 1867, the plaintiff, who
resides in Bridge^ater, left her home accompanied by her
son with a horse and wagon, and drove to Roxbury. Here
she stopped at tbe bouse of an acquaintance, and sent her son
with tlie horse and wagon to Southbury to carry some clothes
to another son of hers residing in that town. To accomplish
that object it became necessary to cross tbe Pomperaug river,
a rapid stream, peculiarly subject to freshets, very much and
very quickly affected by a fall of rain. In crossing or in at-
tempting to cross a bridge over this river, this son of tbe
plaintiff was drowned, tbe horse was drowned, and the wagon
was broken. This suit is brought to recover tbe damages sus-
tained by tbe loss of tbe horse and wagon, it being claimed .
by tbe plaintiff tliat her loss was chargeable to defects in the
bridge and in tbe approaches to it, which it was by law the
duty of the town to build and maintain in fit and proper con-
dition. Tbe first count in tbe declaration charges tbe loss to
defects in tbe bridge, tbe absence of railing, Ac. ; and the
second count to tbe defective condition and tbe insufficiency
of the highway near tbe bridge and river.

In tbe court below tbe jury rendered a verdict for tbe
plaintiff, and tbe motion for a new trial was based on the
misdirection of tbe judge, and for a verdict against evidence.
Tbe former claim is now abandoned, and a new trial is sought
only for tbe reason that tbe verdict is against tbe evidence.

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AUGUST TERM, 1870. 201

Brooton v. Town of Sonthbury.

The principles of law which ore applicable to, and which
ooBtarol this class of cases, have been so frequently and so re-
cently considered by this court that it is quite unnecessary to
discuss or even to repeat and reaffirm them. It becomes our
duty to examine the evidence detailed in the motion, in order
to determine whether, in view of legal rules and principles
now well established, this verdict should stand or be set aside
and a new trial ordered.

The width of the river a little above the bridge in question
is about five rods ; a little below, it is a trifle wider. The
space between the abutments on which the bridge rests is
about twenty-four feet — the length of the bridge ; its width
about twelve feet. It is a low bridge, not much raised above
the water at its ordinary stage, and in time of freshets the
water flows entirely over it, and over tiie highway on each of
the approaches to it. On the day in question the water was
highest about noon, when it was about a foot deep on the
bridge. At two o'clock in the afternoon it had fallen a trifle,
and then set back, according to the testimony of those on the
ground, about a rod on the South Britain side of the river.
According to the measurements and levels taken by the de-
fendant's engineer sometime after the accident, it does not
aj^ar how long after, if the water was a foot deep on the
bridge, much more of the highway would be submerged than
is described by the witnesses as being in that condition.
There was no railing on either side of the bridge, nor on
any portion of the highway on either side of the river leading
to it. The bridge was not at right angles with the river, and
there was a curve in the road at each end of the bridge. On
the South Britain side, for some ten or twelve feet before
reaching the abutment, there was a cut in the road which
made it so narrow that it was difficult, if not impossible, to
turn a wagon round in it.

In this state of facts we feel bound to say that here was
gross and culpable negligence on the part of the town whose
duty it was to maintain this highway and bridge. Life and
property were both put in peril by an attempt to pass this
place at a high stage of water in the river. We cannot recog-
VoL xxxvn. — 26

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Bronson v. Town of Soathbary.

nize the claim made in behalf of the defendants, that this
bridge, if built higher, and provided with a railing, would
certainly be destroyed or carried away by ice, Ac, in the time
of spring freshets, and therefore it was proper to leave it as
it was, and as it had been for years. We believe it is fea-
sible, witliout great expense, to erect a proper structure there,
with proper guards and protections, which would be reason-
ably permanent. But should it prove otherwise, should
parts or the whole of the work be carried away, and that
frequently, while the law remains as it is we think the town
is bound to restore it as often as it becomes necessary. Obli-
gation to the traveling public, the protection of life and prop-
erty, imperatively demand it. But while we thus entertain
no doubt of the negligence, we might say of the criminal
negligence, of the town in the matter of this bridge and high-
way, there is another question of importance involved in the
case not wholly free from doubt and difficulty : has the plain-
tift shown that she conducted with ordinary care and pru-
dence, and that her own negligence did not contribute towards
the injury of which she complains ?

Her son Charles, with whom she entrusted the horse and
wagon to take a parcel to his brother in Southbury, while she
stopped in Roxbury, was a lad a little less than twelve years
of age ; the horse was a quiet and gentle one ; it was a little
over six miles to the bridge ; he had been over the same
ground some five or six weeks before ; he was a stout boy,
large of his age and a good driver ; had driven this horse
almost daily for two years ; could harness and unharness him,
and never had any trouble with him. We are not prepared
to say that this plaintifiF, the mother of this boy, showed any
want of ordinary care and prudence in sending him under
the circumstances we have detailed on this errand. We
think he was competent to perform the service required of
him, and that the plaintiff in this regard exercised ordinary
discretion. The lad started about eleven o'clock in the fore-
noon, and though there is some testimony that he whipped
the horse and was driving rapidly a portion of the way, yet
as he did not reach the river till afternoon, the distance being

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AUGUST TERM, 1870. 208

Bronflon v. Town of Soathbiiry.

but little over six miles, he probably drove at a reasonable
rate. No one saw him as he attempted to cross the river,
and exactly how the accident occurred is therefore unknown.
The cushion of the wagon was found below the bridge between
twelve and one o'clock, and parts of the wagon came over the
dam below between one and two o'clock. About two o'clock
several persons came to the bridge to make a search on ac-
count of the accident. The water then set back about fifteen
feet across the road on the South Britain side of the river^
and in the judgment of some of the witnesses was about
eight inches deep on the bridge. Others thouglit it deeper.
They traced the marks of the wagon into the water some ten,
twelve, or thirteen feet from the bridge on the South Britain
side, and that is all the evidence there is as to where or how
the accident occurred.

The defendants insist that, from the levels taken by their
engineer, the water must have set back much farther than
fifteen feet across the highway on the South Britain side of
the river, and that there was much deep water to be passed
through before getting within fifteen feet of the bridge, and
that no one exercising ordinary prudence would have contin-
ued driving towards the bridge through such a depth of
water ; and the case of Fox v. GlaBteribury^ 29 Conn., 204, is
pressed upon us as an authority decisive against the plaintiflF's
right to recover.

Whether the jury considered that great changes might and
probably did occur in this highway from heavy rains and
fireshets, happening after this accident, and before these
levels were taken, or whether they chose to rely on the posi-
tive testimony of witnesses as to the extent of water over the
highway, it is not our province to determine. If there was
no water to obstruct the travel, till one arrived within fifteen
feet of the bridge, there would be no want of ordinary care
in driving to that point. When there, (and to this point, and
beyond, this young lad was apparently traced by the marks
of the wagon,) he must either have attempted to turn round,
which was so difficult from the narrowness of the way that
he £uled to accomplish it and was swept ofT by the current^

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Bronaon v. Tinm of Soiuhbofy.

or he kept on and reached the bridge, or a poiht near the
bridge, and there, for want of a sufficient railing, met Ihe
like melancholy, fate.

The facts in the case of Fox y. Gloitenbuiy, which was
well considered, and with the principles of which we are en-
tirely satisfied, differ essentially from the case at bar. There,
the persons who drove across the causeway lived in the neigh-
borhood and were well acquainted with the way. This boj
bad never been here but once before, and Kved at a distance.
Knowing of the difficulty in the crossing at Glastonbury, the
parties stopped and asked advice as to proceeding. They
were told it would be dangerous unless they had a very gentle
horse. This lad suspected no danger, no friendly voice gave
him warning ; and though one of the selectmen of the town
lived on the road near the bridge, no obstruction was placed
across the road to stop travelers. The parties at Glastonbury
reached the bridge near the center of the causeway in safety ;
and here they could have safely stopped until assistance,
which was within call, came if any was needed to enable
them to go back, the residue of the causeway being so entirely
submerged that the line of the road was not visible. Still
they went on, and as the danger increased and their horse
stopped, instead of allowing him to do so and calling for
help, which was still near at hand, they urged him on, and
the result was the accident. For this unfortunate lad there
was no safe stopping place when once in the danger, no ear
to bear his cry for help, no opportunity from the character of
the road to turn round and go back. That he exercised all
the discretion and judgment of an adult is not to be pre-
sumed ; his age forbids it. But we have already said that
we find no want of ordinary care and prudence on the part
of the plaintiff in sending him to perform this service, for we
deem him competent for its performance.

Our conclusion therefore is, that as these defendants have
been negligent in the dischai^ of a duty imposed on them
by law, in consequence of which an injury has resulted to
this plaintiff, there being no want of ordinary care on her
part, no imprudence which has contribi^d to the injury, she

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AUGUST 1?KIIM, nn. 206

Roberts 9. Hiiat.

18 entitled to the yerdict rendered in her faror, and a new
trial ia denied.

In this opinion the other judges concurred, except Sey-
mour, J., who having been counsel in the case when at the
bar, did not sit.

Edward S. Roberts vs. Wilder Hall.

A held the promissory note of the defendant, obtained of him hv frand, and
which Ae defendant had demanded back immediately on discovering the fraud.
The note was payable to A*8 order and on time, and before due A indorsed it
to the plaintiff in trust in part for certain creditors and the balance for A*b
wife the plaintiff having no knowledge of the infirmity of the note. The
creditors accepted the transfer and directed the plaintiff to bring suit on the
note when due. Held^l . That so far as the trust for A*a wife was concerned
.the plaintiff took the note as agent of A and therefore with its infirmity. 2.
That the entire transaction by which the note was transferred to the plaintiff
was out of the n-gular course of business, and that the note therefore remained
open to the defense of fraud.

The wife of A was living apart from lum, Imt was not divorced. Held not to
aflect the case.

The taking of negotiable paper as a security for, or payment of, a pre-existing
debt, is not out of the regular course of business.

The question whether negotiable paper was taken in the regular course of busi-
ness resolves itself into the inquiry whether mercantile paper is ordinarily used
in the manner in which the paper in question was used, and whether a business
man would ordinarily have received the paper in the circumstances in which
it was offered and have parted with his property for it.

AasuMPsrr upon a promissory note of the defendant, by the
plaintiff as indorsee ; brought to the Superior Court in Litch-
field county. The following facts were found by an auditor
to whom the case was referred.

On the Ist day of August, 1865, one Frederick A. Tale

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