If

to

on the land that she owned in fee, then Mrs. Curran would have taken nothing under it; she would have taken only one-fourth of the land which had belonged to the deceased brother, being a little less than 30 feet. there had been no will at all, then Mrs. Curran would have inherited from both her mother and her brother a trifle over 40 feet of the land. By her will the said testatrix, Mrs. Cassidy, devised to her daughter Mary A. Sergeant a piece of the same land 382 feet wide. Mrs. Sergeant died in 1884, intestate; and this piece of land descended to her two minor sons, and was by lawful order of the court of probate mortgaged to the plaintiff for the benefit of those minors by their guardian, and the money raised by that mortgage has been applied for that purpose. So that in equity the plaintiff stands in precisely the same relation to the last-mentioned piece of land as did Mrs. Sergeant. Her title to it has come to the plaintiff. In 1890 Mrs. Curran learned the true state of the title to the land which her mother had by her will disposed of,-that her mother owned only a part of it, and that she herself and her brother and sisters owned the other part. Since that time Mrs. Curran has conveyed away the land which was devised to her by her mother's will, and has appropriated the avails to her own use. She has obtained deeds from her brother and sister of their interest in the land devised to Mrs. Sergeant. These deeds give to Mrs. Curran such title to that land as the grantors inherited from their brother. And she has paid the interest on the plaintiff's mortgage semiannually to 1896. The title so acquired, joined with her own, Mrs. Curran now sets up to defeat the plaintiff. The question presented may then be stated in this way: May Mrs. Curran, while keeping the avails of the devise to herself in her mother's will, set up a title inherited from her brother to defeat the provisions of her mother's will in favor of Mrs. Sergeant? The plaintiff now owns the title which Mrs. Sergeant had in the land sought to be foreclosed. In her answer to the complaint, Mrs. Curran says that the plaintiff is not entitled to have the foreclosure it claims, because the said minor sons of Mrs. Sergeant had not title in the land mortgaged. If they had no title to that land, it is because their mother, Mrs. Sergeant, had none. In disputing the claim of the plaintiff, Mrs. Curran denies that her sister, Mrs. Sergeant, took anything under the will of their mother. The superior court sustained this claim of Mrs. Curran in part. We think this was error. It is a strong case for the application of the doctrine of election. "It is now a well-settled rule in equity that, if any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will; or, in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall de

feat or in any way prevent the full effect and operation of every part of the will." Hyde v. Baldwin, 17 Pick. 303; Smith v. Smith, 14 Gray, 532; Watson v. Watson, 128 Mass. 154; Whiting's Appeal, 67 Conn. 389, 35 Atl. 268; Whittemore v. Hamilton, 51 Conn. 160; Hall v. Pierson, 63 Conn. 345, 28 Atl. 544; Carter's Appeal, 59 Conn. 576, 22 Atl. 320; Weeks v. Patten, 18 Me. 42; Smith v. Guild, 34 Me. 447; Hamblett v. Hamblett, 6 N. H. 333; Drake v. Wild, 70 Vt. 52, 39 Atl. 248; Brown v. Ricketts, 3 Johns. Ch. 553; Havens v. Sackett, 15 N. Y. 365; 1 Woerner, Adm'n, p. 500; Pom. Eq. Jur. § 447; Schley v. Collis, 47 Fed. 250; 2 Redf. Wills, p. 351; 2 Jarm. Wills, p. 1; Kirkham v. Smith, 1 Ves. Sr. 258; Thellusson v. Woodford, 13 Ves. 209; Whistler v. Webster, 2 Ves. Jr. 367; Birmingham v. Kirwan, 2 Schoales & L. 444; In re Vardon's Trusts, 28 Ch. Div. 124; Cooper v. Cooper, 6 Ch. App. 15.

Counsel for Mrs. Curran argue that, as at the time of the distribution she had no knowledge of her brother's title in the land, she could not make any election. They say election can only be made when there is full knowledge of all the facts. But election need not be made in a moment of time, nor need it be made in words. Since 1890 Mrs. Curran has known all the facts. Since that time she has parted with the land devised to her by her mother's will, and kept the proceeds. Such rights in the mortgaged land as her brother and sister inherited from her brother she has procured to be conveyed to her. At the same time she has recognized the plaintiff's right in the land by paying the semiannual interest on its loan. With these facts in the record, it is pretty difficult to escape the conclusion that Mrs. Curran made an election. But it is not essential to discuss this. Election does not require in all cases a surrender, nor does it work a forfeiture. It is not an unbending rule. not an unbending rule. It is a rule that springs from manifest principles of equity, intended to do justice to all parties concerned. It may be considered as pretty well settled that the doctrine of election is as well satisfied by compensation as by forfeiture. In that way justice is done to all. The disappointed legatee may say to the devisee, "You are not allowed by a court of equity to take out of this testatrix's estate that which you would otherwise be entitled to, until you have made good to me the benefit she intended for me." Pom. Eq. Jur. § 517; Beach, Mod. Eq. Jur. 1096; Rogers v. Jones, 3 Ch. Div. 688; Pickersgill v. Rogers, 5 Ch. Div. 165, 173; Roe's Ex'rs v. Roe, 21 N. J. Eq. 253: Van Dyke's Appeal, 60 Pa. St. 481; Sandoe's Appeal, 65 Pa. St. 314; Delaney's Estate, 49 Cal. 77; Wilbanks v. Wilbanks, 18 Ill. 17; Marriott v. Badger, 5 Md. 306.

We are of the opinion that this is the correct principle to be applied in a case like the present one: That Mrs. Curran may not assert the title which she claims to the land which was distributed to Mrs. Sergeant, ex

cept by making good Mrs. Sergeant's claim to the land (that is, by making compensation to the plaintiff), because in equity the plaintiff stands to this land in the right of Mrs. Sergeant.

The reasons of appeal do not refer in terms to the doctrine of election, but treat the conduct of Mrs. Curran as calling for the application of that of estoppel in pais. But election is analogous to estoppel. It is hardly more than one kind of estoppel. And, as all the facts upon which the equities of the case are to be adjusted are fully found, we do not think that a mere misnomer of the ground upon which the appellant relies ought to prevent us from doing justice between the parties.

There is error in the judgment of the superior court, and it must be set aside. The plaintiff is entitled to have a foreclosure of the whole of the land mortgaged to it,-being the whole of lot No. 3,-and possession of the premises as prayed for in the complaint. The case is remanded for a judgment to be rendered in conformity to this opinion. The other judges concurred.

1. The finding of the trial court on an issue of fact is conclusive on appeal, unless the record

discloses an error in law.

2. One may be of good habits, a church member, and an elector, and be capable of doing odd jobs of work and caring for himself to a certain extent, and still be incapable of managing his affairs, within the meaning of the statute authorizing the appointment of a conservator for such incapacity.

Appeal from superior court, Litchfield county; Alberto T. Roraback, Judge.

to have his estate restored to him. After due hearing, said court denied the application, and from that denial Cleveland took an appeal to the superior court. In that court, in his reasons of appeal, he alleged, in substance, as the grounds of his application, that he had become capable of taking care of himself and of managing his affairs. The appellee denied this allegation, and upon that issue the case was tried in the superior court. That court found this issue in favor of the appellee, and thus found, as a fact, that the appellant is incapable of managing his affairs. This finding is conclusive upon this court, upon the present appeal, unless the record discloses that in reaching it the trial court committed some error in law, and upon the record no such error appears.

Many such errors are claimed in the numerous and prolix assignments of error in this case, but the facts upon which most of them are based do not appear in the record. The substantial grievance of which the appellant appears to complain, as set forth in different forms in divers of the assignments, is to the effect that, upon the facts found, the court below, in passing upon the capacity of the ward to manage his own affairs, required a higher degree of mental capacity than the law requires. The facts found bearing upon this point are these: The ward has been under the power of a duly-appointed conservator continually since 1871. He is about 59 years old, and is a man of limited education. His estate consists wholly of cash and securities, and amounts to about $2,000. During the war of the Rebellion he enlisted, and was mustered into the service of the United States as a soldier, and was honorably discharged from such service 38 days after such enlistment, and is now drawing a pension because of rheumatism. Prior to his enlistment he lived with his father on a farm. Since his discharge he has worked about from place to place, caring for himself and doing odd jobs of common work. "He is a man of good habits; a member of the church; has been and now is an elector; but in mental capacity is far below the average, simple minded, easily influenced, and has not sufficient ability or mental capacity to manage or control any considerable amount of money, and, if allowed to, would soon waste or squander it. He is neither insane nor an idiot, in the full sense of that word, and can handle small sums of money, and purchase his own necessary apparel and provisions." The court below has thus found, upon what we must on this appeal assume to have been proper and sufficient evidence, -for no complaint to the contrary is made, -that the appellant was incapable of managing his affairs, and would soon squander and waste his estate if allowed to manage it. The other special facts found do not appear to be inconsistent with the conclusion reached as to incapacity. A man may be of good

1. A search warrant sworn out by defendant furnishes no justification for his acts, the officer having omitted to return it by defendant's direction, so that the acts done become trespass ab initio.

2. It may, under the general issue, be shown that the alleged publication of libelous matter was a privileged communication.

3. For the purpose of showing reasonable cause for making a complaint against A. for a search warrant for articles stolen from defendant, he cannot show that other persons had lost property, and that P. had told them he was with A. when A. stole it.

4. Plaintiff, to repel defendant's claim that he acted in good faith in swearing out a search warrant against plaintiff for articles stolen from him, and to show that defendant had no reason to believe the statement of P. to him that he (P.) was with plaintiff when he stole the articles, cannot show that P. told a third person that he made these statements to defendant because defendant offered $10, there being no evidence that defendant was aware P. was making the statement to obtain the $10, rather than because the statement was true.

(6)

writing signed by said Dayton, being all on the same paper, were, by the defendant, exhibited and shown to one Henry G. Scott, of said Watertown, and to one Frank O. Peck, of said Watertown, who read the same. The defendant on said day placed said entire paper with the words shown in Exhibits A, B, and C thereon in the hands of said Scott, and requested said Scott and said Peck to proceed with him to search the dwelling house, buildings, and barns of the plaintiff, situated in the town of Bethlehem. (7) In pursuance of said request, on said day the defendant, said Scott, and said Peck proceeded to the premises of the plaintiff, in the town of Bethlehem, and said Scott did then and there, in the presence of the plaintiff, the defendant, and said Peck, read the words contained in Exhibits A, B, and C, and the defendant, said Scott, and said Peck did then and there with force and arms unlawfully and against the wish of the plaintiff enter upon and search the dwelling house, buildings, and barns of the plaintiff. (8) The plaintiff was then unwell, and said search did greatly disturb his mind and body, and his sickness was thereby increased and augmented. (9) The words described in paragraph 1 of this complaint concerning the plaintiff were false. (10) The acts of the defendant described in paragraphs 1, 2, 3, 4, 5, 6, and 7 of this complaint were malicious. (11) There was no reasonable or probable cause for said acts of the defendant. The plaintiff claims $5,000 damages."

Exhibit A: "To Frank Stockman, of Bethlehem, justice of the peace for Litchfield county, comes Truman Cowles, of Hartford, Hart

Action by John Anderson against Truman Cowles for maliciously causing a search warrant to be issued under which plaintiff's premises were entered and searched. Judgment for plaintiff. Defendant appeals. Reversed.

The complaint in this case was as follows: "(1) On the 28th day of September, 1896, the defendant made, signed, and published a paper writing, concerning the plaintiff, of which Exhibit A hereto annexed is a copy. (2) On said day the defendant exhibited said paper writing to Henry T. Dayton, of Watertown, Conn., by whom the same was read, and requested said Dayton to issue a search warrant thereon to search the dwelling house and buildings or barns of the plaintiff, and to arrest the body of the plaintiff. (3) On said day the defendant made oath before said Dayton to the truth of the allegations in said paper writing contained. (4) On said day, in compliance with said request, said Dayton made, issued, and signed a certificate of said oath, a copy of which is annexed hereto, and marked 'Exhibit B,' and the other paper writing, a copy of which is hereto annexed, and marked 'Exhibit C.' (5) On said day said paper writing signed by the defendant, and said certificate of oath and said other paper

plains as well as in the name of the state of Connecticut as in his own name that one John Anderson, of Bethlehem, in said county, between July 1, 1894, and September 28, 1896, at said Bethlehem, one set of wagon tires about 21⁄2 inches wide, wide, one wagon pole (strengthened with iron underneath), 1 set mowing-machine whiffletrees, 2 hay forks, 3 or 4 chains, also a lot of yellow corn in the ear, of the proper goods of the said Truman Cowles, and of the value of seventy-five dollars, then and there being, with force and arms feloniously did steal, take, and carry away from and out of the possession of the said complainant; who further complains and informs that he has good grounds to suspect, and doth suspect, that the said John Anderson hath feloniously secreted and concealed said stolen goods in his dwelling house and other outbuildings and barns, in said Bethlehem, and that said goods are now so feloniously concealed and secreted by the said John Anderson in his dwelling house, outbuildings, and barns; against the peace and contrary to the statute in such case provided, and to the damage of the complainant the sum of seventy-five dollars. And the complainant prays that process may issue to search for said stolen goods, and to arrest

the said John Anderson, that he may be examined, and dealt with according to law."

Exhibit C: "Whereas, the foregoing complaint hath been made to me, and the said complainant hath made oath to the truth of the same, these are therefore by authority of the state of Connecticut to command you forthwith to proceed with the said Truman Cowles, taking assistance, if necessary, and to enter into the dwelling house, outbuildings, or barns of the said John Anderson described in said complaint, and diligently make search therein for the said stolen goods mentioned in said complaint, and, if found, to seize the same, and forthwith bring the same before me or some other justice of the peace of the county of Litchfield. And you are also commanded to arrest the body of the said John Anderson, if he can be found within your precincts, and him forthwith have before the same justice of the peace, that he may be examined touching the matters contained in said complaint, and dealt with according to law. Henry T. Dayton, Justice of the Peace."

The answer was the general issue. The cause was tried to the jury, and the plaintiff had a verdict. The defendant has appealed to this court.

Arthur L. Shipman, for appellant. Charles G. Root, for appellee.

ANDREWS, C. J. (after stating the facts). The court charged the jury that the warrant, made a part of the complaint, did not furnish any justification for the acts complained of. This was correct. The warrant had never been returned. The officer omitted to return it by the direction of the defendant. For this reason the acts done became trespass ab initio. Dehm v. Hinman, 56 Conn. 322, 15 Atl. 741; Williams v. Ives, 25 Conn. 568; Pratt v. Pond, 45 Conn. 386; Toby v. Reed, 9 Conn. 216; Wright v. Marvin, 59 Vt. 437, 9 Atl. 601; Munroe v. Merrill, 6 Gray, 238; Bull. N. P. 23. "If a sheriff have not returned a writ which ought to have been returned, he becomes, although there is only a nonfeasance, a trespasser ab initio as to everything which has been done under the writ." Bac. Abr. tit. "Trespass," (B). The warrant being void for this reason, there is no occasion to discuss. whether or not it was void for the reason that it was not signed by the justice to whom the complaint was made.

The complaint alleged that the libelous writing had been published to Henry G. Scott and Frank O. Peck, citizens of Watertown. On the trial it appeared that Scott was a deputy sheriff, and that Peck was a constable, and that they had the warrant for service. Thereupon the defendant claimed, and asked the court to rule, that as to these persons the complaint and warrant were a privileged communication. The court refused so to rule on the ground that the defendant could not avail himset of a privileged communication, as it

v. News Co., 67 Conn. 504-510, 34 Atl. 865. For the purpose of showing that he had reasonable cause for making the complaint, the defendant testified that before he made it he had been told by one Patterson that he (Pat terson) was in company with Anderson when Anderson stole the things named in the complaint. He then sought to show by the testimony of other persons that they had lost articles of property, and that the said Patterson had told them that he had been in company with Anderson when Anderson had stolen the said other property. Upon objection this evidence was rejected by the court. This was correct. The evidence would have raised issues not proper in this case.

The plaintiff introduced Wallace Hayes as a witness, who testified that he asked the said Patterson "why he made those statements to Cowles (the defendant) about John Anderson, and that Patterson replied that he made them because Cowles offered ten dollars." This evidence was objected to, but the court admitted it. This evidence was apparently offered to repel the defendant's claim that he had acted in good faith in making the complaint, and to show that he had no reason to believe the statements of Patterson to be true; but the plaintiff sought to show that Patterson made the statements about Anderson to obtain the $10, rather than because the statements were true. In such case the defendant could not have relied upon them when he made the complaint. Granting that, to show Patterson's motive, his own declarations were the best evidence, still there was no evidence tending to show that the defendant was aware that Patterson was acting from such motive, and without bringing the knowledge of Patterson's motive home to the defendant his good faith in making the complaint could not be affected. We think this testimony of Mr. Hayes was inadmissible. There is error, and a new trial must be granted. The other judges concurred.

APPEAL FROM BOARD OF RELIEF-FORM OF PROCEEDING PLEA IN ABATEMENT.

Under Gen. St. § 3860, providing that one aggrieved by action of the board of relief in a town may, within two months thereof, make application to the superior court, accompanied by a citation to the town to appear before it, which shall be signed by the same authority, returnable at the same time, and served and returned in the manner, as is required in case of a summons in a civil action, though the appeal may be by an application or petition, stating the facts and praying for appropriate relief, addressed to the superior court, after the manner of a petition in equity under the old practice, and accompanied by a citation in the ordinary form, it is, at most, a circumstantial defect, not rendering the process abatable, that the proceeding is by summons and complaint, in the

ordinary form of a civil action, the complaint, describing the action of the board of assessors and that of the board of relief on appeal thereto, alleging that, within two months thereof, plaintiff has brought its appeal to the superior court, and praying for reduction in the valuation of property from that made by said boards, and for such further relief as appellant may be found entitled to.

Appeal from superior court, Tolland county; Milton A. Shumway, Judge.

Action by the United States Envelope Company against the town of Vernon, in the nature of an appeal from the doings of the board of relief of said town. Judgment for defendant on a plea in abatement, and plaintiff appeals. Reversed.

The form of the proceeding was that of an ordinary civil action under the practice act, commencing with a summons directed to the sheriff of Tolland county, etc., and commanding him to summon the town of Vernon to appear before the superior court, etc., to answer unto the said company "in a civil action, being an appeal from the doings of the board of relief of said town, as hereinafter stated; whereupon the plaintiff declares, complains, and says." Then follow 12 numbered paragraphs, describing the plaintiff corporation; alleging its ownership of personal and real property in this state; the action of the assessors in placing the same in the tax list; the plaintiff's appeal to the board of relief; the action of that board on the 4th day of February, 1899, refusing to grant the relief prayed for by the appeal; that the plaintiff "is aggrieved by the action of the board of relief in the premises, and within two months from the time of said action brings this, its appeal, to this court from said doings of said board, and asks this court to reduce the said valuation

to the proper valuation,

and for such action and further relief as the appellant may be found by the court to be entitled to." There followed a proper bond of recognizance to the town of Vernon, and a direction to the officer to make due return, etc. The proceeding was dated March 11, 1899, and was signed by a justice of the peace. The defendant pleaded in abatement as follows, omitting the second paragraph of the plea: "The appellee, the said town of Vernon, comes into court, and prays judgment of the writ and complaint of the United States Envelope Company in the above-entitled action, and says that the same ought to abate and be dismissed, because it says: (1) That the United States Envelope Company, which claims to be aggrieved by the action of the board of relief of the town of Vernon, did not, within two months from the time of such action, make application in the nature of an appeal from said board of relief of said town of Vernon to the superior court in and for the county of Tolland, in which the said town of Vernon is situated, and there is not accompanying such application a citation to said town of Ver

non to appear before the superior court for Tolland county, in which said town of Vernon is situated, but the United States Envelope Company has merely caused a writ, signed by John E. Fisk, as justice of the peace, to be served upon the town of Vernon, and returned to this court." The plaintiff's reply denied the allegations of the plea in abatement. The court filed a ruling in writing that it found the facts stated in the first and second paragraphs to be true, and rendered judgment dismissing the plaintiff's complaint. The court also filed a finding of facts, in which it stated that the only evidence offered in support of the facts alleged in the plea in abatement was the writ and complaint.

Lewis Sperry and John E. Fisk, for appellant. Charles Phelps, for appellee.

HALL, J. (after stating the facts). The reply, denying the allegations of the plea in abatement, raised an issue of fact which the record states was decided in favor of the defendant. But the record further shows that the proceeding, which the plaintiff claims is an application to the superior court under section 3860 of the General Statutes, was dated the 11th of March, 1899, and served upon the defendant town upon the 15th of that month, and that the date of the adverse action of the board of relief was February 4, 1899. In filing his ruling upon the plea in abatement that he found "the facts stated in the first paragraph to be true," the trial judge evidently did not mean to say that the alleged appeal, which the defendant sought to have abated, was not taken within the two months limited by the statute. As the finding states that the only evidence offered upon the trial of the issue was the writ and complaint, we may, as counsel have done in their argument before us, treat the judgment of the trial court as a ruling that such writ and complaint are not an application in the nature of an appeal, within the meaning of the language of section 3860. If that question is one which can be raised by a plea in abatement, it would have been more properly presented in this case had the defendant set forth particularly in its plea wherein the plaintiff, by adopting this form of procedure, did less or more than is required, by the provisions of section 3860, to enable it to obtain the relief which the superior court may grant under section 3863. Section 3860 is as follows: "Any person claiming to be aggrieved by the action of the board of relief in any town, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court of the county in which such town is situate, which shall be accompanied by a citation to said town to appear before said court, which shall be signed by the same authority, returnable at the same time and served and returned in the same manner as