that the statements of which she complained were false and malicious. Her averment that they were such having been traversed, although their truth had been specially pleaded, when in the course of the trial it became an admitted fact that the defendant made them in an official report, which in its nature was a privileged communication, she could rely on no presumption either of falsity or malice. Atwater v. Morning News Co., 67 Conn. 504, 519, 34 Atl. 865. With respect to this particular point the trial court charged the jury that "if the defendant believed, and had good reason to believe, that the plaintiff was guilty of the matters of which she is accused in the report, and he was actuated by no improper or unjustifiable motive in publishing them, it was his duty to communicate the fact to the board of school visitors, all of whom had a corresponding duty with respect to everything that concerned the welfare of the South Windsor schools, and his statements, under such circumstances, were conditionally privileged until the plaintiff removes the privilege by proof on her part of actual, or, as it is sometimes called, express malíce or malice in fact." This was erroneous, for the reasons already stated, in assuming that the privilege relied on might depend on the defendant's having good reason to believe his charges against the plaintiff to be true. One of these was that she was "at fault in her management of the sanitary conditions of the school-conditions which she could adequately deal with, if she wished." A witness offered in defense testified that a week or two before the report was sent in she met the defendant at the schoolhouse, and remarked to him that it appeared to have been unswept for a month, and was in a filthy condition, to which he replied that it was in a deplorable condition, and he had a report to make which he should be sorry to send in. It appears by the evidence in the cause which has been certified up at length that the witness resided in South Windsor, and was the wife of one who filled the office of chairman of the board of school visitors of that town at the time of the conversation in question. It was in answer to her complaint of the unsanitary condition of the school that the defendant admitted the fact, and said substantially that he was sorry to have to report it. This expression of his feeling with reference to the paper which it was his duty to prepare was in reply to a criticism of the administration of school affairs, made by one who had a right to complain and to ask him for an explanation. Proof that he had this feeling when he afterwards sent the paper in would have gone directly to defeat the plaintiff's case. To show that he then had it, proof that he had it a few days previously, at the time of his conversation with the witness, was certainly not irrelevant. For such proof resort could properly be had to his declarations as to his then existing feelings in re

lation to the subject of inquiry, provided such declarations were made in a natural manner, and not under circumstances leading to a suspicion that he was thus seeking to manufacture evidence in his own favor, for use, if needed, in some anticipated controversy. 3 Wigmore on Evidence, §§ 1714, 1725. They would be admissible, not as part of the res gestæ, for they were not explanatory of any accompanying act, but because in their nature, if true, they were the best evidence of the existence of the fact as to which they speak. Whether declarations of this kind, if admitted, are in fact true, is a proper question for the jury, and the danger to be anticipated from letting them be proved is far less than that from admitting the testimony of him who made them, given long afterwards, under the pressure of a strong interest. The evidence now in question was of a declaration of a public officer, accompanying an announcement to one entitled to inquire into his official conduct, of his purpose to do a certain official act, and characterizing that purpose. As such it had a legitimate tendency to explain the nature of the act, soon afterwards done, as being one prompted by duty, and not by malice. But whether this tendency was of sufficient moment to call for the admission of the testimony, or whether remoteness in point of time so weakened its force as to make it not worth while to permit its introduction, was a matter addressing itself to the sound discretion of the trial judge. State v. Kelly, 77 Conn. 266, 269, 58 Atl. 705. It was within his power either to receive or exclude it, as he might think would best promote justice in view of all the circumstances attending the trial. Error in its exclusion, therefore, is not well assigned. That evidence is legally admissible does not in all cases necessarily require its admission.

One of the statements in the report was that the plaintiff had not "even the externals of refinement." The court after instructing the jury, in reference to another of its statements, that they must look carefully at the character and interest of the witnesses who had testified regarding its truth or falsity, proceeded as follows: "The possession of the externals of refinement is rather a subject of your own observation, because you know, by seeing a person, whether they have or not the externals of refinement." The plaintiff had taken the stand in her own behalf. Her appearance there was, of course, to be taken into account by the jury in determining whether, nine months before, she had possessed "the externals of refinement"; but it is evident that it might not in all respects be the best evidence. The jury might well have understood from the language used and its collocation that it was the best. The exception to the charge upon this point is therefore sustained.

There are other reasons of appeal, but they

relate to points not likely to recur upon a new trial and require no discussion. There is error, and a new trial is ordered.

(81 Conn. 261)

BANK COM'RS v. WATERTOWN SAVINGS BANK.

(Supreme Court of Errors of Connecticut. Oct. 27, 1908.)

1. BANKS AND BANKING (§ 309*)-SAVINGS BANKS-INSOLVENCY-CLAIMS PRESENTA

TION.

Under a statute requiring creditors of insolvents to exhibit their claims, the filing of insolvent savings bank pass books with the receiver, showing nonpayment of accrued interest, constituted a sufficient presentation of claim for such interest.

[Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. & 309.*]

2. BANKS AND BANKING ($ 309*)-SAVINGS BANK-INSOLVENCY-ASSETS.

Money recovered by the receiver of an insolvent savings bank from the sureties and property of a defaulting treasurer of the bank partakes of all the characteristics of the money which it replaced, and should be distributed in accordance with the bank's charter.

[Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. & 309.*]

3. BANKS AND BANKING (§ 303*)-SAVINGS BANKS - PROFITS · DISTRIBUTION - STAT

UTES.

Gen. St. 1902, § 3440, declares that the net income of any savings bank in excess of oneeighth of 1 per cent. of its deposits actually earned during the preceding six months may be divided among its depositors, but that no dividend shall exceed 4 per cent. per annum, except as provided in section 3441, which declares that no dividend shall be made, except as provided in section 3440, until the bank's surplus equals 3 per cent. of its deposits, that such banks shall not carry a contingent fund of more than 10 per cent., and that any surplus beyond that amount shall be divided among depositors. Held, that such sections did not militate against the right of depositors of a non-stock savings bank to its income or profits, which are to be regarded as a part of the deposits.

[Ed. Note. For other cases, see Banks and Banking, Cent. Dig. § 1192; Dec. Dig. § 303.*] 4. SUBROGATION (§ 33*)-RIGHTS OF CREDITOR.

The right of subrogation is one which a surety is entitled to exercise against a debtor, but does not authorize him to control the creditor's action.

[Ed. Note.-For other cases, see Subrogation, Cent. Dig. § 97; Dec. Dig. § 33.*]

Where the receiver of a non-stock savings bank received money from the sureties and property of the bank's defaulting treasurer, such assets were applicable to the payment of unpaid interest on deposits, the principal of which had been paid in full and was not returnable to the treasurer's sureties.

[Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. § 309.*]

Case Reserved from Superior Court, Litchfield County; Edwin B. Gager, Judge.

Action by the bank commissioners against the Watertown Savings Bank. Application for advice as to payment of assets.

Lucien F. Burpee, for Watertown Savings Bank and its receiver. Michael J. Byrne, for Emma J. Mattoon, executrix. Francis P. Guilfoile, for Emil C. Margraff.

RORABACK, J. In this case the superior court for Litchfield county has reserved for the advice of this court the questions of law arising upon an agreed statement of facts. The receiver of the defendant bank, being ready to close his receivership, has on hand several thousand dollars for distribution, which certain persons, formerly depositors of the savings bank, claim should be distributed to them. Certain other persons, who were sureties on the bond of a defaulting treasurer of the bank, and who have been compelled to pay a larger sum to the receiver than remains for distribution, also claim that the money should be paid to them. The receiver, therefore, asks in what manner and to whom he should distribute the money.

The facts agreed upon pertinent to this inquiry are substantially as follows: "On or before September 10, 1905, and before the appointment of the receiver, the savings bank had suspended business, had collected its assets, had called upon its depositors to send in their deposit books, and had paid to them the balance of their deposits, but without any interest since July 1, 1903. These payments were entered on each depositor's book, and the book returned to him; but no interest was paid, computed, or entered upon the depositors' books after July 1, 1903. After the appointment of the receiver on January 12, 1906, the superior court limited the usual time for exhibition of claims against said bank, and within that time nearly all of the depositors presented to the receiver their deposit books in the same condition as to entries hereinbefore described; that is, with no interest computed or entered on these books after July 1, 1903. 'No claim was presented by any one in any other form, and no claim for any interest or for any stated amount was expressly made by any one.' Meantime an action was begun and prosecuted against the defaulting treasurer and his bondsmen, and final judgment secured against the treasurer for $13,011.37, and against the bondsmen, ‘jointly and severally, for the sum of $10,000, or so much thereof as shall be necessary to satisfy any deficiency unsatisfied by said treasurer upon said judgment against him, with costs.' This judgment was rendered in the superior court June 15, 1905, and affirmed by this court December 15, 1905. The defaulting treasurer's property was foreclosed and sold by the receiver in June, 1997, and that of the bondsmen between September, 1907, and April 1, 1908. Property worth about $8,500 was taken from the bondsmen, but the judgment still remains unsatisfied to the amount of $1,000. The

bond furnished by the defaulting treasurer and his sureties, as required by statute, was in the sum of $10,000, and conditioned that the treasurer should well and faithfully perform all the duties of his office, and should fully account for the funds of the bank placed in his keeping."

The advice of this court is sought upon the following questions: (1) Whether the depositors had properly presented their claims upon their deposits since July 1, 1903. (2) If these claims were properly presented, how should the receiver distribute the balance on hand? (3) Are the sureties on the bond of the defaulting treasurer entitled to this balance, or any portion thereof?

Ac

When the receiver was appointed in January, 1906, the depositors' books showed that they had been paid the full amount of their deposits, with interest thereon up to July 1, 1903, and that no interest or dividends had accrued to them after that time. In February, 1906, the superior court for Litchfield county limited a time for the exhibition of claims against said bank, of which the receiver gave notice to all of its depositors. In pursuance of said notice nearly all of the depositors delivered to the receiver their deposit books, showing the true condition of their accounts with the bank. It is quite clear that the depositors, by such a presentation, were not claiming the principal of their deposits, as these had been fully paid. tuated by a purpose to make a claim for this loss of income and profits, the depositors presented to the receiver their deposit books as a claim against said bank. At this time it needed no computation or investigation for the receiver to ascertain that the depositors had received no income or return for their money for almost two years. Although these claims were not made in the form which would have been used by an experienced attorney, yet we think they embodied a claim made by the depositors for a just proportion of the balance of the income and profits, if any, derived from the business conducted by the bank. If the claims lacked certainty as to amount, the presentations in question placed in the hands of the receiver information which enabled him to understand the existence and character of the demands made by the depositors. It has long been settled by our decisions and practice that a formal presentation of a claim to an executor or administrator is not necessary. The language of our statute for many years has been that the creditor shall "exhibit his claim." It is not enough that the executor has in some casual way learned of the existence of the debt. It must be brought to his knowledge by some action of the claimant that the claim is held against the estate. Pratt v. Stoner, 78 Conn. 312, 313, 61 Atl. 1009; Cothren's Appeal, 59 Conn. 549, 22 Atl. 297; Brown & Bros. v. Brown, 56 Conn. 249251, 14 Atl. 718, 7 Am. St. Rep. 307. From the facts disclosed by the finding, we feel

warranted in reaching the conclusion that a sufficient presentation of these claims was made.

The Watertown Savings Bank was duly chartered under the laws of this state in 1893. The object of this institution is set forth in section 3 of its charter, which provides that: "All deposits of money received by said corporation shall be used and improved to the best advantage, by loaning and investing the same in a manner not inconsistent with the laws of this state, and said corporation may dispose of the same as the interests of said corporation may require, and the income or profits thereof shall be applied as dividends among the persons making the deposits, their executors, and administrators, in just proportion, with such reasonable deduction as may be chargeable thereon." These are all the

provisions of the charter which relate to the question now under consideration. It is to be noticed that there is no capital stock, and there are no stockholders who are entitled to receive profits from the business. It is clear that all these belong to the depositors, and nothing can properly be deducted therefrom except the reasonable expenses of transacting the business. The sums of money which the defaulting treasurer withdrew were taken out of the deposits received by the bank, and the income and profits derived therefrom by loans and investments. They all belonged to the depositors. This money, which the receiver now has for distribution, has all the characteristics of the money which it replaced. Like the original deposits and their income or profits, it must be applied under the charter of the bank as above quoted. Price v. Society for Savings, 64 Conn. 362-366, 30 Atl. 139, 42 Am. St. Rep. 198; Bunnell v. Collinsville Savings Society, 38 Conn. 203-206, 9 Am. Rep. 380; Morristown Institution for Savings v. Roberts, 42 N. J. Eq. 496, 8 Atl. 315; Huntington v. Savings Bank, 96 U. S. 388, 24 L. Ed. 777.

Counsel for the bondsmen point to sections 3440 and 3441 of the General Statutes of 1902, which provide:

"The net income of any savings bank, in excess of one-eighth of one per cent. of its deposits, actually earned during the six months last preceding, and no more, may be semiannually divided among its depositors. No dividend shall exceed a rate of four per cent. per annum, except as provided in section 3441.

"No savings bank shall make any dividend, except as provided in section 3440, until its surplus shall have accumulated to an amount equal to three per cent. of its deposits. Such surplus shall be kept as a contingent fund; but no savings bank shall carry to its contingent fund more than ten per cent. of its deposits; and any surplus beyond that amount shall be divided among the depositors entitled to such dividends, in sums of not less than one per cent. of its deposits."

It is claimed that: "Since the savings bank is the creature of statute, there is no other legal means or method of making disposition of its funds, save strictly as provided by statute. The liability, legal or equitable, of the savings bank to its depositor, is a fixed and constant relation, that does not vary, whether the bank is or is not solvent." It is also said "that the purpose of the surplus is to protect the depositor; but the law gives to the depositor no way of reaching the surplus. Indeed, our courts seem to sustain the view that the end and purpose of the deposits is to keep up the surplus." It is true that the profits or income of savings banks are not all payable at the same time or in the same way, and that they may be held by the bank as a fund until they have reached a specified amount. This is for the sole purpose of protecting depositors against unforeseen contingencies. There is nothing in these statutes which militates against the general proposition that the income or profits of savings banks belong to the depositors and are a part of the deposits. In the end it is the general spirit and purpose of the charters of savings banks and the laws of this state that depositors, or their representatives, are entitled to all the pecuniary benefits arising from the deposits, less the reasonable expenses that may be chargeable thereon.

It is a little difficult to understand upon what theory these bondsmen rely to sustain their claim for this money now in the hands of the receiver. No principle was suggested upon which such a claim can be supported. The treasurer had taken from the bank money belonging to its depositors. These claimants were sureties upon his bond. In an action against the defaulting treasurer and his bondsmen, judgment was rendered against these claimants for any deficiency which the principal failed to satisfy, not exceeding $10,

000. This judgment, when recovered, was an asset of the bank as much as any loan or other investment. There was no person who had any right to this fund to which these claimants have in any way been subrogated. It is a familiar principle that "the equity of subrogation is one which the surety is entitled to exercise against the debtor, but it does not give him the right to control the action of the creditor." Bispham's Principles of Equity, 338. Special circumstances may take the case out of this general rule, and give the surety a right to require the creditor to look to certain liens before calling upon the surety. No such conditions exist in the present case. It is manifest that the depositors in this bank have not received that part of the income which was appropriated by the treasurer and which was theirs according to law. When the receiver was appointed they had the right to claim it and demand that this income be paid out of the assets of the bank which he collected. By sustaining the claim of the sureties upon the bond, the depositors would be deprived of their just proportion of the dividends from the income or profits arising from the business conducted by the bank under its charter. The sureties upon the bond have, therefore, no pecuniary interest in the money now held by the receiver and no right to the relief they ask.

The superior court is advised that all such depositors, who made presentation of their claims as set forth in the finding, made a lawful exhibition of such claims; that the receiver should distribute the balance of money (after paying just charges) now in his hands to such depositors as have presented their claims in the manner above indicated; and that the sureties on the bond are not entitled to any portion of the balance of the money now in the hands of the receiver. The other Judges concurred.

(29 R. I. 305)

COOK v. LEWIS, Justice, et al. (Supreme Court of Rhode Island. Nov. 5, 1908.)

CRIMINAL LAW (§ 207*)-JURISDICTION-JUSTICES OF THE PEACE-APPOINTMENTS.

The appointment by a justice of the district court of a justice of the peace of a town to take bail and issue warrants returnable to the district court is a continuous appointment, and a new appointment is not necessary at the termination of the term of the justice of the peace, when the same is renewed, or at the expiration of the term of the justice of the district court, when the same is renewed.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 207.*]

Petition for writ of prohibition by George H. Cook against Nathan B. Lewis, justice of the district court of the Second judicial district, and another. Heard on petition and answer. Petition denied and dismissed.

Argued before DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Harry C. Curtis and Frederick C. Olney, for petitioner. Clarence A. Aldrich, for respondent. George H. Huddy, Jr., for complainant in district court.

DUBOIS, J. This is a petition for a writ of prohibition, and was heard upon petition and answer.

The petition reads as follows:

"Your petitioner respectfully represents that on the 19th day of August, A. D. 1908, John G. Cross, of the town of Narragansett, in the county of Washington, in the state of Rhode Island, complained to William Sleeman, Esq., justice of the peace, erroneously alleged to be authorized to issue warrants returnable to the district court of the Second judicial district, in the county of Washington and state of Rhode Island. That your petitioner, at said town, in said county, on the 17th day of August, A. D. 1908, and on divers days and times between July 1, A. D. 1908, and the date of said complaint, with force and arms did keep and suffer to be kept a building, place, and tenement used and occupied for the purpose of gambling and playing at games of chance for money and other valuable considerations, and did then and there keep, exhibit, and suffer to be kept and exhibited upon his premises and under his control certain gambling implements and apparatus, to wit, a certain roulette wheel and three slot machines, to be used in gambling and playing at games of chance for money and other valuable considerations, against the statute and the peace and dignity of the state. That thereupon said William Sleeman, justice of the peace, issued his warrant directed to the sheriff, his deputy, or either of the town sergeants or constables in the county of Washington, commanding them in the name of the state forthwith to apprehend the body of your petitioner, and have before the

district court of the Second judicial district, or some other lawful authority, to be dealt with relating to the premises as the law and justice should appertain. That your petitioner was thereupon placed under arrest, and was compelled by said William Sleeman, justice of the peace, to recognize to appear before the district court of the Second judicial district on the 24th day of August, A. D. 1908. That on said 24th day of August, A. D. 1908, your petitioner appeared before Nathan B. Lewis, justice of the district court of the Second judicial district, refused to plead to said complaint, and said cause was continued until September 7, A. D. 1908. That on the 29th day of August, A. D. 1908, your petitioner filed in the district court of the Second judicial district a plea to the jurisdiction of the court, averring that William Sleeman, justice of the peace, was not authorized to issue warrants returnable to said district court. That, to wit, on the 21st day of September, A. D. 1908, complainant demurred to said plea to the jurisdiction and said demurrer was sustained. That said Nathan B. Lewis, justice of said court, ruled that he had jurisdiction under and by virtue of said complaint and warrant, and your petitioner, protesting, was ordered to appear, plead, recognize, and make defense. That William Sleeman, justice of the peace, was not on the 19th day of August, A. D. 1908, authorized to issue warrants returnable to the district court of the Second judicial district. That no record of the appointment of William Sleeman as a justice of the peace authorized on the 19th day of August, A. D. 1908, to issue warrants returnable to the district court of the Second judicial district, appeared in the records of the district court of said district. That on the 19th day of August, A. D. 1908, no appointment of William Sleeman as justice of the peace authorized to issue warrants returnable to the district court of the Second judicial district was certified by the justice of said court to the Secretary of State. That the justice of the district court of the Second judicial district had not issued his warrant under the seal of said court by which William Sleeman, justice of the peace, was on the 19th day of August, A. D. 1908, authorized to issue warrants returnable to the district court of the Second judicial district.

"Wherefore your petitioner prays a remedy by a writ of prohibition, to be issued out of and under the seal of this honorable court, directed to Nathan B. Lewis, justice of the district court of the Second judicial district, and the district court of the Second judicial district, prohibiting him and it from taking any further cognizance of your petitioner by virtue of said complaint and warrant, and also from further proceeding thereunder, and that a citation be issued, directed to Nathan B. Lewis, justice of the district court of the