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ing of mud and other refuse material in certain of the waters of Long Island Sound. Pub. Acts 1882, p. 208, c. 126, § 4; Pub. Acts 1883, p. 309, c. 122, § 1. In 1893 an act, embodied in sections 3234 and 3237 of the General Statutes of 1902, requiring the procuring of a license to use any boat, etc., in taking and gathering oysters from natural oys. ter beds. Pub. Acts 1893, p. 316, c. 171, § 4. In 1893 an act, embodied in section 3236 and section 3237 of the General Statutes of 1902, forbidding the use of any naphtha, steam, or electric engine, in operating dredges on natural oyster beds. Pub. Acts 1893, p. 316, C. 171, $ 4. In 1893 and 1895 acts, embodied in section 3254 of the General Statutes of 1902, forbidding the taking of oysters or shells from certain natural oyster beds and in Housatonic river, etc. Pub. Acts 1893, p. 252, c. 90, § 2; Pub. Acts 1895, p. 483, c. 81, 8 6. In 1899 an act was passed, which is now section 3253 of the General Statutes of 1902, punishing by fine and imprisonment "any person, who shall without permission of the owner of any properly designated oyster ground, tow any oyster dredge or contrivance for taking oysters, under water upon such oyster ground," but imposing no penalty of seizure or forfeiture of the boat or vessel used in violating the provisions of such act. It is in effect the contention of the plaintiff that under the present law, as it appears in the General Statutes of 1902, the jury should have been instructed that they might find that the defendant's boat was "illegally used in dredging” within the meaning of those words as used in said section 3241, upon finding that the boat, while dredging at the time in question, was used in the violation of the provisions of section 3246, punishing the stealing of oysters from private oyster beds, or of section 3247, punishing injuries to any oyster inclosure or the taking of shells therefrom; or of section 3253, above quoted, prohibiting the towing of a dredge over private oyster grounds.

But the defendant is not charged with stealing oysters, nor injuring inclosures or taking shells therefrom. The only charge in the count relied upon is that at the time named "said boat did illegally dredge" upon the described private oyster grounds. It is for the act of dredging only for which the boat can be condemned, and the only section which makes the mere act of dredging upon private grounds illegal is said section 3253, prohibiting the towing of a dredge under water over private oyster grounds. But, assuming that upon the evidence before them the jury might have found that the boat in question was dredging in violation of the provisions of each of said sections 3246, 3247, and 3253, we are satisfied that such dredging upon private grounds in violation of the provisions of either or all of these three sec

66 A.-33

tions was not an illegal dredging within the intention of the language of section 3211, which would subject the defendant's boat to forfeiture. In addition to the fact that these sections are to a considerable extent for the protection of private property, we find no provisions in either of them, either in its present form or in the original act which it embodies, rendering boats, used contrary to its provisions, liable to seizure and forfei. ture. Again, although the language of section 3241, "used in illegal dredging," is broad enough to include dredging upon private grounds contrary to law, we must interpret these words not only in view of our previ. ous legislation upon this subject, but also with reference to other sections of the General Statutes of 1902 which have a direct bearing upon section 3241. In that connection section 3258 is very important. Under the heading of "Seizure," that section provides that "any boat or vessel used in the commission of any offense contrary to any of the provisions of sections 3234, 3235, 3236, 3237, 3242, and 3254, may with its tackle, apparel and furniture, be seized and proceeded against in the form and manner as provided in section 3241." Among the sections here enumerated we find neither of the three, in violation of the provisions of which the plaintiff claims the boat in question was used. All of the sections so enumerated embody legislative acts which, as we have al. ready shown, expressly provided when originally passed, for a forfeiture of the boat, etc., used in violation of their provisions. All of them are applicable to natural oyster beds, and none of them are made applicable to private grounds. That it was not the purpose of section 3258 to extend the provisions of section 3241 to offenses not within the language of the latter section, and not before made punishable by such a penalty, is apparent from the fact that most of the offenses described in the sections enumerated in section 3258 are embraced in that of illegally using boats, etc., “in dredging or depositing or dumping material” described in section 3241, and that all of said offenses were expressly made punishable by such forfeiture of boats, etc., by the original acts embodied in said enumerated sections. As we regard section 3258, it was intended to designate all the sections for a violation of the provisions of which a boat was liable to seizure and sale, under the provisions of section 3241, which contained no express provision for such seizure. By the language of our statutes, the defendant's boat was not liable to such seizure for the offense committed.

This conclusion renders it unnecessary for us to decide the constitutional question raised.

There is no error. The other Judges concurred.

(79 Conn. 693)

LOWNDES et al. V. CITY NAT. BANK. (Supreme Court of Errors of Connecticut. May

1, 1907.) SET-OFF AND COUNTERCLAIM PARTIES

BRINGING IN NEW PARTIES-ENABLING DEFENDANT TO PLEAD SET-OFF.

Where an administrator misappropriated money, which passed into the hands of a bank, and his surety indemnified the estate, and sued the bank in the name of the succeeding administrators at the surety's own expense and for its sole benefit to recover the amount, the bank had no right to have the surety cited in as a party, to enable the bank to set up a claim against the surety for indemnity on another bond given by the administrator as the bank's cashier, since the main controversy could be fully determined without consideration of the bank's claim and without prejudice to either party; the absence of the surety as a party in no way affe- ting the judgment to be rendered, and that a multiplicity of actions might be avoided affording no ground to cite the surety in.

Appeal from Superior Court, Fairfield County; Milton A. Shumway, Judge.

Action by Abbie S. Lowndes and another against the City National Bank; the Ætna Indemnity Company being cited in as codefendant. From orders refusing to cite the company in as coplaintiff and sustaining a demurrer to the motion asking that it be cited in as codefendant, and from a judgment for the company, defendant appeals. No error.

Civil action by the administrators of the estate of Theodore S. Lowndes, deceased, to recover a balance of $58,000 of the moneys of the estate deposited in the defendant's bank. The defendant filed a motion that the plaintiffs be ordered to cite in the Ætna Indemnity Company as a coplaintiff. This motion was denied by the court, and the defendant then filed a motion that the Ætna Indemnity Company be ordered to prosecute the action in its own name or be cited in as a codefendant. It was cited in as codefendant and filed a demurrer to the motion, which was sustained by the court, and judgment was rendered in its favor for costs. The defendant appealed to this court, assigning these rulIngs as error. The facts sufficiently appear in the opinion.

John H. Light and William F. Tammany, for appellant. James H. Webb, for appellee Ætna Indemnity Company.

sons, which the defendant had paid and was then carrying as a part of its cash assets, and for which the estate was in no manner liable or obligated, and received no benefit. Layton was removed as administrator, and the plaintiffs appointed in his place. They demanded said balance of the defendant, and it refused to pay the same or honor their checks drawn therefor. Layton had given an ample probate bond, with the Ætna Indemnity Company as surety, for his faithful discharge of the duties of administrator. The surety, upon demand by the plaintiffs, paid them the amount of said balance, $58,000, and took from them an assignment of all their rights and claims against the defendant. It thereupon instituted this suit in the name of the plaintiffs, and his prosecuting it at its own expense and for its sole benefit. Layton, as cashier, gave the defendant a bond of $10,000, with the Ætna Indemnity Company as surety, for his faithful performance of his duties as cashier. He was unfaithful in the performance of those duties, whereby the defendant lost upwards of $10,000, and has a claim for that amount against the surety. After this action was brought the defendant requested the Ætna Indemnity Company to maintain the action in its own name, and it refused. It thus appears that the defendant has an independent claim against the Ætna Indemnity Company, which is in no way connected with the cause of action set up in the complaint or the transaction out of which it arose. All questions between the parties to the controversy in suit can be fully determined, without consideration of the defendant's claim, and without prejudice to the defendant or any other party. Treating the action as one between the plaintiffs and the defendant, it is too clear for discussion that the indemnity company cannot properly be made a codefendant, to enable the present defendant to litigate with it a claim in no way connected with the matter in suit. State V. Wright, 50 Conn. 583. The court was right, therefore, in sustaining the demurrer to the second motion, so far, at least, as it asked that the indemnity company be cited in as codefendant. The same is true of the court's action in denying the defendant's motion that the Ætna Indemnity Company be cited in as a coplaintiff. Its presence or absence could not in any way affect the judgment to be rendered between the plaintiffs and the defendant, and in such a case, as was said in Carroll, Trustee, y. Weaver, 65 Conn. 76, 84, 31 Atl. 489, the practice act does not permit it to be made a party.

The defendant urges that, by making the indemnity company a coplaintiff or sole plaintiff, a multiplicity of actions may be avoided. While the law encourages, it does not compel, the settlement of all controversies between the same parties by a single action. A plaintiff, therefore, may bring suit upon a single one of several causes of action which

THAYER, J. (after stating the facts). This action was brought to recover a balance of moneys and funds of the estate of Theodore ģ. Lowndes, deceased, deposited in the defendant's bank by one Layton, who was the predecessor of the plaintiffs as administrator of the estate, and was also cashier of the defendant. The motions state that this balance was misappropriated by Layton, and the complaint shows an attempt on his part, with the knowledge and consent of the defendant, to appropriate it to the purpose of taking up worthless and dishonored checks, aotes, and other securities of various per

he may have against the same party, and a 4. SAME-MORTGAGES-FORECLOSURE. defendant may or may not, as he sees it, An infant's mortgage may not be foreclosed

until and unless its status shall have been first plead a set-off or counterclaim which he has

established as that of a conveyance not subagainst such plaintiff. Thus the defendant ject to avoidance at the will of the mortgagor. in the present case, if his motion were to be 5. SAME-JURISDICTION OF EQUITY. granted, could not be compelled to set off his A mortgagee cannot invoke equity to com

pel the present exercise by or for an infant alleged debt against the ludemnity company's

mortgagor of his right to affirm or disaffirm, or demand. It does not follow, therefore, that

to exercise for him the choice, or in any other a multiplicity of suits would be avoided, were way fix the status of the transaction, and thus the defendant's motion to be granted. But

either establish the validity of the note and the indemnity company, as assignee of a

mortgage as a preliminary to a foreclosure, or

in any other way permanently settle the rights chose in action, had an election to bring the of the parties; there being no averment of fraud suit in its own name or in that of the assign or concealment on the infant's part, and it not ors. At common law it must have brought appearing that plaintiff was not fully aware of

the infancy and voluntarily chose to assume the it in the name of the assignors; but now, by risk of dealing with him. section 631 of the General Statutes it may

Appeal from Court of Common Pleas, Fairbring it in its own name by setting forth in

field County; Howard J. Curtis, Judge. the complaint that it is the bona fide owner

Action by David F. Watson against John of the claim, and when and how it acquired

Ruderman. From an order sustaining a deIt. The statute, however, does not super

murrer to the reply, plaintiff appeals. No sede the bringing of actions in the name of

error. the assignor. Saugatuck Bridge Co. v. Town of Westport, 39 Conn. 337, 349. Having elect

The complaint is one framed in the ordied to bring the action in the name of the

nary form of a foreclosure of a mortgage of assignors, and as a full adjudication upon

lands. The defendant is described as the the subject-matter put in controversy can

maker of the note and mortgage. The demanifestly be had without prejudice to the

fendant pleaded infancy, alleging that at the rights of the defendant or any other party,

time the note and mortgage were made by the court cannot deprive it of such election

bim, to wit, January 18, 1906, he was only at the election of the defendant. The court,

19 years of age. The plaintiff in his reply

admitted these allegations of infancy, and therefore, properly sustained the demurrer as a whole upon that ground.

then proceeded under the introduction "by The record discloses that the Ætna Indem

way of equitable relief” to reaffirm by refnity Company was summoned in as code

erence the allegations of the complaint, and

further to allege, in substance, that on said fendant, and that it appeared, answered to

January 18th the plaintiff sold and conveyed the complaint, demurred to the motion, and

to the defendant the equity of redemption in moved for a more specific statement of the

the described premises, in consideration of cause of action set up in a counterclaim,

the assumption by the defendant of the mortwhich was filed by the defendant after the

gage of $600 already upon the property, $150 demurrer was filed. As no question of any

then paid in cash, and a note for $200 then Irregularity in this procedure was raised, if

made and delivered to the plaintiff by the there was such, we deem it to have been

defendant, which note was secured by a mort. waived.

gage of said equity, also then executed and There is no error. The other Judges con

delivered by the defendant, said note and curred.

mortgage being those in suit; that the de

fendant has paid only $26 on account of said (79 Conn. 687)

note, or of the prior assumed incumbrance ;

that there is located upon said premises a WATSON V. RUDERMAN.

building since occupied by the defendant for (Supreme Court of Errors of Connecticut. May the conduct of business; that the use of said 1, 1907.)

property is reasonably worth $10 per month, 1. PLEADINGS-REPLY-OFFICE,

and that the plaintiff is ready and willing A reply may not be used to set up facts

to pay into court for the use of the defendto obtain distinct affirmative relief; and, where

ant so much of the amount the defendanı plaintiff desires relief not prayed for in the complaint, he should amend it.

has paid as the court should find ought equi.. [Ed. Note.-For cases in point, see Cent. Dig. tably to be repaid to him. The plaintiff vol. 39, Pleading, 88 342, 358.]

thereupon claimed the following relief: "(1) A 2. INFANTS_NOTE-VALIDITY.

decree attirming said purchase, payment, An infant's note is voidable, being subject mortgage, and note, and a judgment of foreto his disaffirmance on his reaching majority. closure; or (2) a decree disaffirming said pur. [Ed. Note.-For cases in point, see Cent. Dig.

chase, payment, mortgage, and note; and (3) vol. 27, Infants, &$ 128, 129.]

a judgment fixing the amount which the de8. SAME-MORTGAGE.

fendant is equitably entitled to have paid An infant's mortgage of land is voidable,

into court for his use on account of said payand not subject to disaffirmance before he reachon bis majority.

ment; and (4) a decree or judgment for a (Ed. Note.-For cases in point, see Cent. Dig.

reconveyance of said property to the plainvol. 27, Infants, il 27-30.)

tiff, or otherwise vesting title thereto in

him; (5) such other and further appropriate

which it is to be noticed was not sufficiently relief as to equity may appertain.” The de assigned in the reasons of appeal, must there fendant thereupon demurred to sald prayers fore, for a double reason, fail. for relief, for the reason that the facts stated The plaintiff's argument in support of his did not entitle the plaintiff to the relief second contention, that a foreclosure might sought. This demurrer was sustained, and have been granted, establishes nothing more judgment for the defendant thereafter fol than that a minor may be foreclosed. This lowed in due course.

is, of course, true; but the effort here is, not

only to foreclose a minor, but to do so upon William H. O'Hara, for appellant. Henry a note and mortgage executed by such mi. Greenstein, for appellee.

nor. The coptract embodied in the note and the conveyance of title effectuated by

the mortgage were alike voidable. The PRENTICE, J. (after stating the facts). defendant, by the accepted rule of public The plaintiff contends that the court's action

policy, was entitled to disaffirm them. This in sustaining the demurrer to the reply was

disaffirmance might be exercised after the erroneous for reasons which in the brief of

attainment of majority-a time still in the fucounsel are resolved into three, to wit: First,

tue- and in so far as the mortgage was conbecause, for the purposes of the demurrer,

cerned could not by the current of authority the defendant must be regarded as having waived the defense of infancy, since it was

be sooner exercised. Kline v. Beebe, 6 Conn. not therein specifically appealed to; second, 481, 483; Bestor v. Hickey, 71 Conn. 181,

494, 503-505; Shipman v. Horton, 17 Conn. because a foreclosure might have been prop

184-186, 41 Atl. 555; Coburn v. Raymond, erly awarded upon the facts set up; and, third, because equity might grant relief, el

76 Conn. 484, 491, 57 Atl. 116, 100 Am. St.

Rep. 1000; Sims V. Everhardt, 102 U. S. ther by compelling the infant defendant to elect to affirm or disafirm the transaction,

300, 309, 26 L. Ed. 87. The plaintiff, there

fore stands in the position of asking a mortor by making such election for him and

gage to be foreclosed which, as far as apthereupon establishing what had in form been

pears, has no established status. Such & done, or, as the case might be, setting the same aside and restoring the parties to their

mortgage may not be made the subject of

foreclosure until and unless its status shall former status.

have been first established as that of a conThe reply, in so far as it sets up facts

veyance not subject to avoidance at the will for the purpose of claiming and claimed the

of the mortgagor. relief demurred to, was not a proper plead.

We are thus brought to the underlying ing. The office of a reply is to meet matter averred in the answer.

question of the case, which is whether or not

It may not be used, as here, to set up facts for the purpose of

à court of equity may, by compelling the

present exercise by or for the defendant of obtaining distinct affirmative relief. Prayers

bis right of affirmance or disaffirmance, or for relief have no place, save in a complaint,

by exercising for him the choice which is cross-complaint or answer embodying a coun.

his, or in some other way, fx definitely and terclaim. When the plaintiff discovered that

finally the status of the transactions recited he desired relief not already prayed for, he

in the record, and thus either establish the should have amended his complaint to em

validity of the note and mortgage as a prebody it and such facts, in addition to those

liminary to a foreclosure, or in some other already therein, as were deemed pertinent.

manner permanently settle the rights of Instead of pursuing this course, which would

the parties. In answering this question we have presented a complaint disclosing the de

must bear in mind that the incapacity of fendant's legal incapacity to enter into the

infants to enter into binding contracts or contracts and conveyances set up, he sought

make valid conveyances is the same in equity to avoid in his reply the effect of that in

as at law, and that the same rules of public capacity, which had been asserted and ad

policy govern and the same consequences atmitted, by an appeal for distinct and af

tach. Pomeroy's Equity Jurisprudence, firmative equitable relief. To this and cer

945. It follows that, in the absence of other tain facts, in part new to the case, were facts than that of an infant's participation stated in a form suggestive of an equitable in a contract or conveyance, there cannot counterclaim, and such relief as was con

exist a situation in which, through the operaceived to be appropriate to the facts of the

tion of an estoppel, validity will be given to case, including the admitted infancy, prayed it, or through equitable intervention it will for. Under such circumstances the defendant be set aside, and thus by one means or the was in fairness entitled to have the appro other an effect be given to the transaction priateness of the prayers for relief contained

different from that which the general policy in the reply put to the test of his demurrer, of the law has seen fit to attach to it. Baker with a regard, not only for the facts alleged V. Stone, 136 Mass. 405; Corey v. Burton, 32 in the reply, but also for the other fact to Mich. 32. In other words, a court, whether which the reply was specially addressed, and of equity or of law will not hold itself juswithout which the prayers had no pertinence. tified in depriving an infant, who was of the The plaintiff's first reason for claiming error, age of presumed natural capacity at the time

the plaintiff's right to invoke judicial aid, sa på! ?

of his participation in a property transac cealment. In fact, it does not appear that tion, of the right or privilege which is deem the plaintiff was not fully aware of the deed essential to his proper protection of af fendant's infancy and voluntarily chose to firming or disaffirming it upon his arrival at assume the risk of dealing with him. The the age of legal capacity, unless there ap substance of the plaintiff's allegations and pears in the situation presented some fact in prayers, therefore, is that he dealt with a addition to such participation-some fact minor and now asks the law to relieve him which is recognized as furnishing the basis from the inconvenience, hazard, and possible for equitable interposition generally, or as loss attending such transactions. He wishes laying the foundation for an estoppel. The to escape the consequences which the law active fraud or false representation as to has seen fit to attach to the situation in age by the infant has been recognized as which he finds himself, and no reason for furnishing such a fact. Ex parte Unity that escape is presented, save such as the Bank, 2 De Gex & J. 63; Nelson v. Stocker, general policy of the law has adjudged in4 De Gex & J. 464; Wright v. Snow, 2 De adequate. Clearly he has failed to show a Gex & Sm. 321; Lampere v. Lange, L. R. 12 case for equitable intervention. Ch. Div. 675; Hayes v. Parker, 41 N. J. Eq. There is no error. The other Judges con632, 7 Atl. 511; Rice v. Boyer, 108 Ind. 472, curred. 9 N. E. 420, 58 Am. Rep. 53; Williamson v. Jones, 43 W. Va, 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891; Ryan v. Growney,

(79 Conn. 705) 125 Mo. 475, 28 S. W. 189, 755; Kilgore v.

AVERY V. WHITE. Jordan, 17 Tex. 341. Such conduct on the (Supreme Court of Errors of Connecticut. part of an infant has, however, frequently

May 10, 1907.) been held to be insufficient to create an es 1. APPEAL-RECORD_AMENDMENT IN APPELtoppel. Sims v. Everhardt, 102 U. S. 300, LATE COURT. 26 L. Ed. 87; Burley V. Russell, 10 N. H.

Where an application to rectify an appeal

was filed under Gen. St. 1902, § 801, supported 184, 34 Am. Dec. 146; Whitcomb v. Joslyn,

by the affidavit of counsel that all the statements 51 Vt. 79, 31 Am. Rep. 678; Studwell v. Sbap of fact set forth therein were true, the failure ter, 54 N. Y. 249; Wieland v. Kobick, 110 to file an answer, supported by a like affidavit Ill. 16, 51 Am. Rep. 676; Corey V. Burton,

by the adverse party, as required by section 14

of the rules of the court, was not excused by the 82 Mich. 32; Alvey V. Reed, 115 Ind. 149, fact that there was not a strict agreement be17 N. E, 265, 7 Am. St. Rep. 418; Conrad v. tween the finding sought to be corrected and the Lane, 26 Minn. 389, 4 N. W. 695, 37 Am.

application. Rep. 412; Lackman V. Wood, 25 Cal. 147.

2. TRIAL - INSTRUCTIONS - APPLICABILITY TO

ISSUES. Mere concealment of infancy has by com

Where, on the trial of an action to recover mon consent been regarded insufficient to

damages for cutting trees, defendant admitted that end, or as in any way creating an en that the cutting was done by his servants and forceable obligation. Strikeman v. Dawson,

no claim was made that he was not liable for

their acts beyond the scope 1 De Gex & Sm. 90; Baker v. Stone, 136

their employment,

por as to the distinction between the relation Mass. 405; Davidson v. Young, 38 Ill. 145; of master and servant and that of employer and Stoolloos v. Jenkins, 12 Serg. & R. (Pa.) 403; contractor, there was no occasion to instruct

that the acts of the servant beyond the scope Brantly v. Wolf, 60 Miss. 420.

of his employment are not the acts of the We have no occasion to consider the ques

master, and to explain the distinction between tions which are suggested by these cases. the relation of master and servant and that of Reference is here made to the attitude which employer and contractor. the courts bave assumed only for the pur

(Ed. Note.-For cases in point, sea Cent. Dig.

vol. 46, Trial, 88 596–612.) pose of showing their reluctance to withdraw from infants the privileges as respects

3. TRESPASS ACTIONS EVIDENCE AD

MISSIBILITY. their property engagements which are be

In an action to recover damages for cutstowed upon them for their protection, and ting timber on plaintiff's land, evidence on bethat such withdrawal is never countenanced,

half of defendant as to the size of trees he cut except under strong justification from circum upon the adjoining lots, of which he claimed

plaintiff's lot was a part, and at what rate he stances other than their participation in the

paid his choppers, was inadmissible. transaction. The facts spread upon this rec

4. MASTER AND SERVANT- LIABILITY FOR ACTS ord will be examined in vain for such a cir.

OF SERVANT. cumstance. It contains nothing pertinent to A principal, having sent his choppers to

work to cut only trees above a certain size on

the land of another, is nevertheless liable if that the plaintiff sold and conveyed to the de

they cut smaller trees; it not appearing that the fendant minor the equity of redemption in the cutting of the smaller trees was necessary to land in question, in consideration of the lat. the cutting and removal of the larger trees. ter's assumption of an existing mortgage

(Ed. Note.--For cases in point, see Cent. Dig.

vol. 34, Master and Servant, 88 1217-1225.) thereon, the payment down of a sum in cash, and the execution and delivery by the defend Appeal from Superior Court, New London ant to the plaintiff of the note and mortgage County. In suit, and that this note has never been paid. Action by Sherwood G. Avery against There is no averment of any fraud or fraud. Charles E. White, under Gen. St. 1902, $ ulent representation; not even one of con 1097, to recover treble damages for cutting

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