Connecticut. Supreme Court of Errors.

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the maker did not, would not dispense with notice of dis-
honor." But we concede that this view is against the
preponderance of legal authority.

Among the ablest opinions in opposition to the above
proposition is that of Judge Loweie, in Barclay v. Weaver^
19 Penn. St., 396, where it was held that a contemporaneous
verbal promise by an indorser to pay the note will dispense
with notice of dishonor. But we think the reasoning in
support of this decision suggests sufficient grounds for
distinguishing the case from the one at bar, so that it does
not essentially impair the strength of our position. The
same judge had decided the other way in the court below,
and when the question came to the Supreme Court for
review, he said : — " My error consisted in the assumption
that the law regards an indorsement as a written contract
to pay on condition that the usual demand be made and
notice given. It is not so. For where the indorser is him-
self the real debtor, as in the case of accommodation notes

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Allen V. Rundle.

and bills, or has taken an assignment of all the property of
the maker as security for his indorsement, or where he can
have no remedy against the maker, or in the case of the
drawer of a bill of exchange where the drawee is, and
during the currency of the bill continues to be, without
funds of the drawer, demand and notice are not necessary.

* * The most therefore that can be said of an indorse-
ment of negotiable paper is, that from it there is implied a
contract to pay on condition of the usual demand and
notice; and that this implication is liable to be changed
on the appearance of circumstances inconsistent with it,
whether those circumstances be shown orally or in writing.
But it may well be questioned whether the condition of
demand and notice is truly part of the contract, or only a
step in the legal remedy upon it." Then, after a very able
argument to sustain this position, the opinion concludes as
follows : — " It seems therefore that the duty of demand and
notice in order to hold an indorser, is not a part of the
contract, but a step in the legal remedy, that may be waived
at any time, in accordance with the maxim, quilibet potest
renuneiare juri pro se introducto. And certainly an indorse-
ment is not regarded as a written contract so far as to pre-
vent oral proof that its terms differ from the ordinary
contract of indorsement."

If the above reasoning is correct, then it is clear that all
the authorities cited by the plaintiffs relative to the waiver
of demand and notice as to indorsers of notes have no force
or pertinency in the case at bar, for the authorities (without
an exception we believe) hold that in a written guaranty
like the one now under consideration, the collectibility of
the note by legal proceedings is not only an essential part
of the contract, but a condition precedent to the right of
recovery ; the only difference being on the question whether
it is possible, without making a new and independent con-
tract, to waive the test of collectibility by actual suit, or
whether the fact of insolvency will excuse the bringing of
the suit. We conclude therefore that the evidence referred
to was not admissible to show a waiver of an essential part
of the written contract.

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MARCH TERM, 1882. 29

Allen V. Bundle.

But it was claimed in the argument that, if not admissible
to show waiver, it would be to estop the defendants from
insisting on the condition. We think however that the
same reasoning applies to the latter as to the former, and
with equal strength. And in lieu of a more particular dis-
cussion of the doctrine of estoppel as applicable to such a
case, we cite, as furnishing strong confirmation of our posi-
tion, the case of Insurance Co. v. Mowry^ 96 U. S. Reps.,
644, where it was held (Mr. Justice Field giving the
opinion,) that "promissory representations as to future
action dependent upon a contract to be entered into, do not
create an estoppel. A promise of agents of an insurance
company, that if a party will take out a policy he shall be
notified when to pay the annual premiums before he shall
be required to pay them, will not, although such notice is
not given, estop the company from setting up the forfeiture
which, according to the terms of the policy subsequently
accepted, was incurred on the non-payment of the premium
when due. The policy as issued and accepted must, in a
court of law, be taken as expressing the final agreement of
the parties, and as merging all previous verbal stipulations.
For compliance with arrangements respecting future trans-
actions, parties must provide by stipulations in their agree-
ments when reduced to writing. The doctrine carried to
the extent for which the assured contends would subvert
the salutary rule, that the written contract must prevail
over previous verbal arrangements, and open the door to all
the evils which that rule was intended to prevent." Citing
White V. Ashton^ 61 N. York, 280, which is in point, and
other authorities.

The other reason given by the plaintiffs for not attempt-
ing to collect the note out of Benedict was, that the
attempt would be vain by reason of insolvency, and this
fact they offered evidence to prove. On the contrary, as
the motion states, " the defendants offered evidence to prove
that Benedict, at the time he signed the note, was of abun-
dant pecuniary ability to pay the same ; that from that time
continuously until April 28th, 1873, more than $30,000

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Allen e. Bundle.

worth of property in Danbury stood in Benedict's name and
belonged to him ; that on that day he transferred all of his
property to his wife, who still holds possession of more
than $25,000 worth of it ; that the only consideration for
this transfer was the purchase by Mrs. Benedict, in 1868, of
certain debts amounting to $23,000 in favor of certain
creditors against her husband for fifteen per cent, of the
face value of the same, and a debt of $4,500 due from
Benedict to Mrs. Benedict's father and which had been set
out to Mrs. Benedict upon the distribution of her father's
estate ; that Mr. and Mrs. Benedict were married in 1828,
and that the money with which she purchased the debts
was the proceeds of property given to her by her husband
at a time when he was not indebted ; that the transfer was
made because one Burr had three days previously brought
a suit against Benedict for the claimed illegal use of a
patent right, and that Mr. Taylor, one of the plaintiffs,
drew, witnessed and took the acknowledgment of the deed.
It was conceded that the plain tiflfe had been the holders of
the note continuously since its inception, and that Mr.
Taylor had advised Benedict not to pay it as it would be
unfair and unjust."

Upon the evidence in the case the defendants claimed,
and asked the court to charge the jury, that if they found
the facts concerning the transfer from Benedict to his wife
as claimed by the defendants, such transfer was void as to
the plaintiffis ; that the plaintiffs could still have collected
the note in suit out of the property, and that it was their
duty to have done so ; that if the jury found the facts as
claimed by the defendants, then Benedict was still solvent
when the present suit was brought, so far as the plaintiffs
were concerned ; and that, if this was not so, the plaintiffs
had by their own fraudulent co-operation with Benedict in
the transfer, rendered him insolvent, and therefore could
not recover of the defendants. The court refused so to
charge, but charged as follows : — " It is a question of fact
for you to decide, whether or not Benedict was insolvent
when this suit was brought. The defendants claim that he

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MARCH TERM, 1882. 81

Allen V. Bundle.

was not insolvent, because the transfer of April 28tli, 1878,
was fraudulent and void. If you find the transfer was
made to defraud Burr, it would be void as to that claim,
but our statute prevents it from being void as to any one
except him whose debt was sought to be avoided. It is
claimed that the transfer is void for inadequacy of price, as
to creditors. I don't understand that any creditors are here
asking to be heard. I think that the transfer should be
treated, so far as this suit goes, as a valid transfer.'^

The court also, in charging the jury in reference to the
fourth, sixth and tenth written requests of the defendants,
in different forms of expression re-iterated and emphasized
the idea that under our statute no transfer of property
would be invalid against any existing creditor unless it was
made with the specific intent to defraud such creditor.
And the jury must have understood that though they
should find that Benedict conveyed his property to his
wife with the fraudulent intent to avoid the Burr claim,
yet the plaintiffs, though then his creditors, could not
attach and hold the property in a suit upon the note in

Is this correct? The statute (Revision of 1875, p. 845,
sec. 1,) is as follows : — " All fraudulent conveyances, suits,
judgments, executions, or contracts, made or contrived
with intent to avoid any debt or duty belonging to others,
shall, notwithstanding any pretended consideration therefor,
be void as against those persons only, their heirs, executors,
administrators or assigns, to whom such debt or duty

It was held in Benton v. Jones^ 8 Conn., 186, that this
statute was substantially copied from that of the 13 Eliz.,
c. 5, and must receive a similar construction. And in
regard to the latter, and to similar statutes in other states,
it is well settled that " it is not necessary to establish a
specific design to delay, hinder or defraud the particular
creditor who assails the transfer, for the intent to delay,
hinder or defraud one particular creditor, renders the trans-
fer void as to all." Bump on Fraudulent Conveyances, 28 ;

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Allen V, Rundle.

Miner v. Warner^ 2 Grant, 448 ; Hoke v. Henderson^ 3 Dev.,
(N. C) 12 ; Gruder v. Boyles, 1 Brevard, (S. C.,) 266 ;
Warner v. Percy^ 22 Verm., 155; Tubervill v. Tipper^
Palmer, 415, (note)'; ifex v. Nottingham^ Lane, 42.

But our attention has been called to the difference of
phraseology between our statute and that of 13 Eliz.
While conceding that the difference gives some color for a
different construction and that a strict and literal rendering
of our statute might justify the charge of the court below,
yet the following considerations will show that the con-
struction given was not the proper one.

1. As the statute was enacted " for the suppression of
fraud, the advancement of justice and the promotion of the
public good," it should be liberally and beneficially con-
strued " to suppress the fraud, abridge the mischief and
enlarge the remedy." Twyne^B Case^ 3 Coke, 80 ; Bump on
Fraudulent Conveyances, 12.

2. The only difficulty in our statute is that it seems to
restrict the remedy to that creditor only whose debt was
intended to be avoided. But it should be borne in mind
that every person is conclusively presumed to intend the
natural and necessary consequences of his acts. If there-
fore A is indebted to jB, and also to (7, and makes a fraudu-
lent conveyance with the specific intent to avoid the debt
to jB, the necessary effect is (and he knows it,) to avoid also
the debt to O ; and so by simply applying the proper rule
of evidence, both debts may be brought not only within the
meaning but within the very words of the act.

3. The statute is declaratory of the common law, which
is still in force and which "supplements the statute to the
end that justice may be done." Bump on Fraudulent Con-
veyances, 11 ; Fox V. Hilh^ 1 Conn., 295 ; Benton v. Jone%^
8 Conn., 186; Hall v. Sand^ 52 Maine, 858; 2 Swift's
Digest, (Rev. ed.,) 260.

As to the thirteenth written request, relative to the effect
of a subsequent promise by the guarantors after laches on
the part of the guarantee, it was obviously founded on the
New York rule and other decisions to which we have re-

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MARCH TERM, 1882. 83

Allen V. Bundle.

ferred, but which we have not adopted to the extent that is
assumed in the proposition referred to. We deem it un-
necessary to c^iscuss the matter further; only we would
suggest, by way of criticism, that the proposition was an
abstract one, and was not in form based upon specific facts
claimed to have been proved, but, assuming that facts might
exist whereby the remedy was lost, the court was asked to
rule as matter of law that a subsequent promise could have
no effect. No facts were conceded upon which the court
could say that the plaintiffis' remedy was lost; and it would
have been unjust to the plaintiffs so to have assumed in
giving instructions to the jury, without making the neces-
sary qualifications.

As there are other grounds for a new trial, it will not be
necessary to consider particularly the neglect of the court
to comply with the statute (Revision of 1875, p. 442,
sec. 2,) which requires a written charge upon written
requests. To avoid, however, giving encouragement to
such omissions, we will merely say that it would undoubt-
edly be ground for granting a new trial unless waived by
the party making the requests, or unless it appeared that it
occasioned no injury.

We have had no occasion for considering the peculiar
character of the guarailty, as one of the collectibility of the
note " till paid," since the present suit was brought before
any proceedings had been instituted for the collection of
the note out of the maker.

A new trial is advised.

In this opinion the other judges concurred.
Vol. l.— 3

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Quintard v. Corcoran.

Walter C. Quintard, Treasurer, vs. Patrick Cor-
coran AND others.

A person licensed by the county commissioners to sell intoxicating liquors
in a certain town, gave a bond to the treasurer of the town with sureties,
as required by law, in the sum of $1,000, the condition of which was
that if he ** should duly observe all laws relating to intoxicating liquors ''
it should be void. Held—

1. That the keeping open a place on Sunday where intoxicating liquors
were exposed to sale was a breach of the bond, although the act was
forbidden by a statute with regard to Sunday and not by that relating
to intoxicating liquors.

2. That it was not necessary that the bond should prcl^ide in terms that
its amount was to be forfeited upon a breach, that being necessarily

3. That it was not necessary that the act constituting a breach of the
bond should be merely an abuse of a privilege granted by the license.

4. That it was not necessary that the plaintiff should have sustained any
damage by reason of the breach of the bond.

5. That the $1,000 was the measure of damages.

It is admissible to prove the time when a certain occurrence, foreign to Uie
case, took place, for the purpose of fixing by it the time when a certain
act, within the case, was done.

Civil action on a bond given by the defendants to the
plaintiff as treasurer of the town of Norwalk, for the obser-
vance of all laws relating to intoxicating liquors by the
defendant Corcoran, who had been licensed by the county
commissioners to sell liquors in said town ; brought to the
Superior Court, and tried to the jury before Hitchcock^ J.
Verdict for the plaintiff, and motions in error and for a new
trial by the defendants. The case is sufficiently stated in
the opinion.

(?. Stoddard and J. S. Seymour^ in support of the motions.

L. D. Brewster^ and R. B. Scott^ contra.

Park, C. J. This is a suit on a bond of one thousand
dollars given to the treasurer of the county of Fairfield, to


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MARCH TERM, 1882. 36

Quintard v. Corcoran.

which was attached the following condition : — " The condi-
tion of this obligation is such, that whereas the above
bounden Patrick Corcoran has this day been licensed by
the board of county commissioners of the county of Fair-
field to sell intoxicating liquors in the town of Norwalk in
said county — now if the said Patrick Corcoran shall duly
observe all laws relating to intoxicating liquors during the
time covered by said license, and also shall pay all damages
arising from sales of intoxicating liquors made by him
during said time, and which shall be recovered from him
under and pursuant to the provisions of part 1, chap. 14,
title 16, of the General Statutes of this state, then this
bond is to be ¥oid, otherwise of full force in the law."

On the trial of the case in the court below the defendants
demurred to the complaint for the following reasons : —

1. Because the complaint and the matters therein con-
tained do not show that the defendant Corcoran has not
duly observed all laws relating to intoxicating liquors, within
the meaning of the statute in such case provided.

2. Because the facts alleged in the complaint and
assigned as a breach of the condition of said bond do not
constitute a breach of said condition.

8. Because said bond is void for uncertainty.

4. Because the acts of said Corcoran alleged to be a
breach of the condition of said bond, and a breach of said
law relating to intoxicating liquors, do not constitute an
abuse of any privilege conferred on him by the license
recited in the condition of said bond.

The court below adjudged the complaint to be sufficient,
and the case comes here for a review of that decision, as
well as for a revision of other rulings of the court in the
trial of the cause upon its merits.

The first, second and fourth grounds of demurrer seem to
be based upon the claim that the offense charged in the
complaint is not one relating to intoxicating liquoi'S, and
that therefore no breach of the condition of the bond has
been alleged. But the case of The State v. Wolfarthy 42
Conn., 155, fully decides this question, and adversely to the

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Quintard v. Corcoran.

claim of the defendants. One of the questions in that case
was whether a prosecuting agent appointed by the county
commissioners could lawfully prosecute for a breach of the
statute prohibiting the keeping open on Sunday of any place
in which it was reputed that intoxicating liquors were kept
for sale. Prosecuting agents had no authority to prosecute
other breaches of the criminal law than those pertaining to
intoxicating liquors. The statute on this subject is as
follows : — " The county commissioners of each county shall
appoint one or more persons residing therein to be prose-
cuting agents, who shall diligently inquire into and prosecute
all violations of the laws relating to the sale of intoxicating
liquors,*' &c. The court held that the statute there in
question was a statute relating to the sale of intoxicating
liquors, and that therefore the prosecuting agent had
authority to prosecute the complaint.

The distinction attempted to be made between the case
cited and the one under consideration is, that that case did
not require a strict construction of the statute, while the
present one does; that in that case it was a matter of
indifference to offenders who the prosecutor was — ^whether
the proceeding was instituted by a prosecuting agent ap-
pointed by the county commissioners, or by a grandjuror

I elected by the town.

We fail to see the force of this claim. The prosecuting
agent either had full authority to institute the proceeding

' in that case or he had none whatever ; and if he had none,
then the proceeding was coran non judice^ and was wholly
void. Neither can it be said that it is a matter of indiffer-
ence, either to the law or to the offenders themselves,
(whether or not they are prosecuted according to law. It is
(the endeavor of all courts that if offenders are found
guilty they shall be found so in conformity to the strict law
. of the land. It often occurs that judgments are reversed

: and new trials ordered on technical points which could not

. have done the accused any harm.

Again, the defendants claim that the statute, which pro-

• vides that "before any person shall receive a license he

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MARCH TERM, 1882. 37

Quintard v. Corcoran.

shall file with said commissioners a joint and several bond
to said county in one thousand dollars, with sufficient
surety, for the due observance of all laws relating to intox-
icating liquors," is not sufficient of itself to warrant the
conclusion that if such person does not duly observe such
laws he shall forfeit the sum named in the bond, or any part
thereof; that it is necessary that the statute should go
further and expressly declare that such shall be the conse-
quence if the licensed person shall not duly observe all
laws relating to intoxicating liquors; that penal statutes
must be construed strictly, and that nothing can be inferred
beyond the strict letter of the act.

We think there is nothing in this claim. The statutory
requirement, that before any person shall receive a license
he shall give a bond to the county with sufficient surety for
the due observance of all laws relating to intoxicating
liquors, means that he shall give a bond in the usual form,
with a condition annexed thereto that if he duly observes
all laws relating to intoxicating liquors the bond shall be
void, but shall remain in full force against him if he violates
any one of those statutes. Wherever the statute requires
a bond to be given for the faithful performance of some
trust or duty, nothing more is said in relation to it than is
said in this case. It is never provided in express terms
that if the trust or duty is not faithfully performed the
bond shall be broken. This is necessarily involved in the
requirement that a bond shall be given for such faithful

Again, it is said that the bond is void for uncertainty, so
far as it refers to laws relating to intoxicating liquors.
Those laws are matters of statute, and the defendants could
have easily ascertained what they required of them. Indeed
they were bound to inform themselves in order to know
what acts their license gave them the right to do. There is
no force in this claim.

Again, it is said that the bond was given on taking out a
license, and its condition therefore can only be broken by
the abuse of some privilege conferred by the license ; and

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Quintard v. Corcoran.

that in respect to the acts claimed to be a breach of the
bond the licensed and the unlicensed stand upon the same
ground. According to this claim it is diflBcult to see how
the bond could be broken ; for a breach of the bond must
necessarily be the doing of some act that the license gave
the licensee no right to do. So far as the abuse of some
privilege conferred by the license is concerned, what is the
difference between selling intoxicating liquors to a minor,
and keeping open a place on Sunday for the sale of such
liquors? If it be said that in the one case the licensee has
the right to sell such liquors to certain persons, which act
the unlicensed has no right to do, and that therefore selling
to a minor is the mere abuse of his privilege to sell such
liquors, then it might be said in the other case, with equal
propriety', that the licensee has the right to keep open his
' place for the sale of liquors during six days of the week,
which act the unlicensed has no right to do, and that there-
fore keeping open his establishment during the remaining
day of the week is a mere abuse of the privilege granted
by his license. We think this distinction is not well taken.

The first objection to the evidence offered by the plain-
tiff on the trial has already been considered, and needs no
further comment.

During the trial the plaintiff offered a witness to prove
the allegations of the complaint, that the defendant Corco-
ran kept open his establishment on Sunday. The witness
testified to the fact but was unable to state when it
occurred. He knew it took place on the Sunday before a
certain trial was had. To prove the date of the trial, and
thus to prove when the act was done, the plaintiff offered
in evidence the record of the trial. The defendant objected
to the evidence, but the court received it for the sole
purpose of fixing the date when the trial occurred, and
thereby proving, in connection with the testimony of the
witness, when Corcoran kept open his establishment. We
think the ruling of the court was strictly correct. Nothing

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 3 of 61)