other hand, every owner of property, assessed in the grand list of the town in which he resides, has a substantial interest in the prosperity and good order of that town. The expense of the local police of any town, as well as of criminal proceedings before its local tribunals, is largely dependent on the number of the liquor saloons and barrooms within its limits, and the character of those who keep them. If licenses are granted with too free a hand, or without proper discrimination, the burdens of taxation are likely to be increased. Every taxpayer, therefore, has a certain, though it may be a small, pecuniary interest in having the license law well administered; and, if he is also a resident in the town where he pays his taxes, he has an additional interest, common to every citizen, in promoting the general welfare of the community. In view of these considerations, we think that any resident taxpayer of a town, who feels aggrieved at the granting of a license for the sale of liquors therein, has the right of appeal, under the act of 1893. and that he is not bound to show any grievance or interest in the matter peculiar to himself, either in his own motion for an appeal before the county commissioners, or by reasons of appeal in the superior court. It follows that there was error in erasing the cause from the docket.

The plea in abatement challenges the jurisdiction of this court to review any action of the superior court upon appeals of this nature. We perceive no foundation for this objection. The cause became one of a judicial nature when it was brought before the superior court, and, as the judgment there rendered was founded on a misconception of the law, it was as much the subject of review as a judgment in any other proceeding.

It is also set up, as matter of abatement, that the appeal is taken from two judgments, and that from one of these--the order denying the motion to restore the cause to the docket-there was no right of appeal. This is true, but the appeal was well taken from the original order, erasing the cause from the docket, and it is not invalidated by the nugatory attempt to review the action, subsequently had.

The order extending for a week the ume "for filing notice of appeal" from the order of erasure was not made until a day after the ordinary period fixed for that purpose had elapsed, and it is contended that it was then too late for the court to grant an extension. The statute under the provisions of which this action was had (Gen. St. § 1131) does not provide that the time must be extended, if at all, before it expires, nor do we think any such limitation is or ought to be implied. But the extension was granted on the same day that the motion to restore the cause to the docket was heard and denied. Such a motion is in the nature of a petition for a rehearing, and, when both made and

entertained by the court, operates of itself to defer, until it is finally disposed of, the time for appealing from the original order. This is the settled construction of the statute of the United States (Rev. St. U. S. § 1008) denying any right of review in the supreme court of the United States of judgments, decrees, or orders in civil actions, "unless the writ of error is brought, or the appeal is taken, within two years after the entry of such judgment, decree, or order," and of the similar provision in the act of 1891, creating the circuit courts of appeals. (26 Stat. U. S. 826). Brockett v. Brockett, 2 How. 238; Brown v. Evans, 18 Fed. 56; Smelting Co. v. Billings, 150 U. S. 31, 14 Sup. Ct. 4. Our own statute of appeals requires the party aggrieved to file his notice of appeal "within one week after the rendition of the judgment or the passage of the decree," and his appeal "within ten days from the rendition of such judgment," unlessthe time is enlarged by the court, "for due cause shown." The considerations which have determined the construction of the statutes of the United States in this particular are equally applicable to that of this state. Where a motion or petition for a rehearing is deemed by the court to which it is presented of sufficient importance to be reserved for future argument, and is not disposed of within 10 days from the rendition of the original judgment, it would be unreasonable to require the moving party to proceed meanwhile to file a notice of appeal, or an appeal, in ordinary course. An appeal so filed would remove the cause into this court, and, unless it should be afterwards remanded to the court below, would deprive it of any further jurisdiction as to granting a rehearing. Roe mer v. Simon, 91 U. S. 149. The order of the superior court extending the time for filing a notice of appeal must therefore be regarded as simply declaratory of the purpose to suspend the operation of the original judgment, which the law would otherwise have implied. The plea in abatement is. overruled, and the judgment of the superior court is reversed. The other judges con-curred.

DUBUQUE v. COMAN.

quo, to William Joslin, "in trust, for the following purposes and uses, to wit: To sell all

9, 1894.)

ADVERSE POSSESSION-TRESPASS EVIDENCE OF TITLE-REVIEW ON APPEAL-DISCRE

TION OF COURT.

1. The deposit of materials and erection of a shed on the land of another, followed by their abandonment for years, is not necessarily inconsistent with the owner's continued possession.

2. Proceedings on appeal under Pub. Acts 1893, p. 318, c. 174, providing that, in passing on questions of fact, the "supreme court shall not reverse the finding of the trial court * unless it finds that the conclusions" are clearly against the weight of the evidence, are analogous to the review of an order denying a motion for a new trial, and all reasonable presumptions will be made in favor of the finding.

3. In an action to recover for trespass committed after a conveyance by the trustees under the will of the former owner, the terms of which included the locus in quo, and under which plaintiff claims title, such deed is admissible to define plaintiff's possession, whether it was properly executed under the power in the will or not.

4. The refusal to grant a nonsuit when plaintiff has rested his case furnishes no ground for exceptions to defendant.

5. The admission by the trial court, after defendant has rested, of evidence in rebuttal and also in chief, affords him no ground of error.

6. In an action for trespass, where defendant's claim rests simply upon the fact that he holds a warranty deed which calls for a certain number of acres, the fact that the bounds by which the premises granted therein were described contain a less number of acres, while the locus in quo is an adjoining parcel, and, if included, would make up the lacking acres, does not render his title colorable, it appearing that such adjoining parcel was not owned by the grantors in the deed.

Appeal from superior court, Windham county; Ralph Wheeler, Judge.

Action of trespass, before a justice of the peace, by Albert Dubuque against George Coman, which resulted in a judgment for plaintiff. On appeal to the superior court and a trial there, plaintiff secured another judg ment, from which defendant appeals. firmed.

Charles F. Thayer, for appellant. Charles E. Searls, for appellee.

BALDWIN, J. The judgment appealed from was one rendered for one dollar, damages, in an action for the disturbance of the plaintiff's possession of a small pasture lot, containing about two acres, and worth from $60 to $70. The locus in quo was originally part of a farm of over 170 acres belonging to Hale Jacobs. He conveyed it, together with another part of the farm, to Salem Jacobs, in 1862. In 1874, the heirs of Hale Jacobs, among whom was Salem Jacobs, conveyed to the defendant another part of the farm, described as containing 834 acres, and particularly bounded by courses, distances, and monuments. The land within these bounds in fact only amounted to 814 acres, and adjoined the lot in question. In 1876, Salem Jacobs died, testate, devising his residuary estate, including the locus in

sulting and advising in relation thereto with my wife, Mary Jane Jacobs, and to invest the avails of such sale safely, as he may think best, and to change such investments at his discretion; to sell, after consultation with my said wife, any or all of the personal property belonging to my estate, and to invest, change, and reinvest the avails thereof as he may think best, and to invest and reinvest any and all funds coming into his hands and belonging to my estate, at his discretion, at all times, and to pay over to my said wife, Mary Jane Jacobs, the income, interest, and dividends for her support and maintenance during the whole period of her natural life, and so long as she remains my widow and unmarried, and so long as, in his opinion, she conducts herself discreetly, at such times and in such sums as her needs may require. And I direct and enjoin upon said trustee to furnish to my said wife, as aforesaid, a comfortable and liberal support, as aforesaid, according to her and my circumstances in life; and, should the income from said trust estate prove inadequate to such support, I direct my said trustee to apply any or all the principal to said purpose, as the wants of my said wife may require." Upon the death or marriage of the widow, the residue of the trust estate was to be divided between the brothers and sisters of the testator. Mr. Joslin subsequently resigned the trust, and the court of probate appointed Lawson Aldrich as his successor. In 1879, Mr. Aldrich, as such trustee, by a deed professing to be in execution of the power of sale granted to him in the will of Salem Jacobs, sold and conveyed to the plaintiff all the right and title which Salem Jacobs had at the time of his decease to certain lands particularly bounded and described, among other things, as containing in all 894 acres, and lying north of land of the defendant. These lands were near the locus in quo, but did not comprehend it. Soon after this conveyance, the defendant and the plaintiff had a conversation as to the ownership of the locus in quo, in the course of which the defendant said that he thought it belonged to the plaintiff. In 1880 the defendant sold and conveyed to his sister, by warranty deed, all the lands he had bought of the heirs of Hale Jacobs, and he has never since had title to any of them, though he remained in possession of the whole. Up to 1885 the locus in quo was occupied by the trustees of the estate of Salem Jacobs. Soon afterwards the defendant notified the plaintiff that he claimed title to the lot, and plaintiff asserted that the title was in himself. In each of the years 1885, 1886, and 1887 the defendant, on several occasions, put some cattle on the ground, and took away some fruit and wood. In 1888, he leased it to a third party, who used it for pasturage during

that season. In 1889 the defendant put up a small tool shed upon it, in which he placed some tools and boards, and moved some wagons and lumber there, where they have all ever since remained. The plaintiff forbade The plaintiff forbade these acts. Soon afterwards, the defendant removed from the state. In 1890 the plaintiff, under a claim of title, by reason of the Aldrich deed, pastured his cattle on the lot throughout the entire season, without permission or objection from any one, and did the same in 1891 until July, and throughout the season of 1892. He also gathered some apples there, and took away some wood, during these years. In June, 1891, he procured a deed from Marcus M. Towne, the successor of Aldrich, as trustee of the right and title which Salem Jacobs had at the time of his decease to the locus in quo. This deed purported to be given by virtue of authority granted in the will of Salem Jacobs. In August, 1891, the defendant entered on the lot, and a year later this action was brought. On July 11, 1892, shortly before the suit was begun, the defendant sent a letter to the heirs of Hale Jacobs, stating that the plaintiff had turned his stock into the lot in question, under a claim of title, and that he wanted them to get him out, and give the defendant possession, at once.

The finding of the court below, after setting forth these facts, states that, from the delivery of the Towne deed to the bringing of the suit, the plaintiff had the actual, adverse, and exclusive enjoyment and possession of the premises. The defendant urges that this conclusion cannot be true, in view of the acts of ownership and possession on his part which have been mentioned; and that the plaintiff's stock certainly cannot have pastured under the shed, or under the pile of lumber which the defendant left near it. In our opinion, the trial court was warranted in the result to which it came, in this particular. The deposit of materials, and erection of a shed, on the land of another, followed by their abandonment for years, is not necessarily inconsistent with his continued possession. A study of the evidence has satisfied us that the testimony of the defendant as to these matters, upon which his counsel particularly relies, was entitled to little weight, especially when considered in the light of his letter of July, 1892, the demands in which are plainly based on his being then out of possession. He was a swift witness when he thought it would serve his interests, and a most reluctant one where he thought a true answer would make against him. his direct examination he testified that his sister had reconveyed some of the Jacobs land back to him, so that he now owned part of the locus in quo; but on cross-examination he was forced to admit that her only conveyance had been made to a third party. He also, on cross-examination, when shown the letter of July 11, 1892, to the Jacobs heirs, signed with his name, denied writing it, or

On

any knowledge of it, or having had any correspondence with them, but finally, on being closely pushed, said that he sent it, but another man wrote it, and that he had heard from the heirs. We think the trial court was fully justified in applying the maxim, "Falsus in uno, falsus in omnibus," and rejecting the defendant's testimony, if not altogether, then certainly when it was in conflict with that of other witnesses.

It is found by the superior court that the plaintiff put up the walls around the lot in 1890 or 1891, and it is assigned for error that there was no evidence of this, but that, on the contrary, there was evidence from the defendant that he, at one time, put up the walls. The court may well have believed so much of his testimony as went to show that the walls had been repaired, and have given no credit to his assertion that such repairs were made by him, in view of the evidence which had been produced on the other side that the plaintiff had occupied the lot for 14 years, without interference from the defendant. If the walls needed repairs during that period, the party in possession would naturally be the one to make them. It is the right of all triors of issues of fact to infer what a man intends to do and has done from his conduct, beyond the positive testimony in the case. Bank v. Middlebrook, 33 Conn. 100. The same considerations seem to us sufficient to support the finding, of which the defendant complains, that the acts claimed by him to show possession on his part, were done for the purpose of maintaining such a claim, and of asserting a title, which was not set up in good faith.

It

There are many other points on which there was a conflict of testimony, the plaintiff being the principal witness upon one side, and the defendant on the other. It is enough to say in reference to these that we think none of the assignments of error are supported by the evidence. The statute upon which they rest (Pub. Acts 1893, p. 318, c. 174) allows in certain cases exceptions to the conclusions of fact of a trial court to be brought before this court, by appeal, on a report of the evidence from which such conclusions were drawn, and requires us to determine whether they are justified by such evidence. It is, however, provided that, "in passing upon said questions of fact, said supreme court shall not reverse the finding of the trial court upon any question of fact, unless it find the conclusions of such trial court upon such question clearly against the weight of evidence." The proceeding thus authorized is analogous to that upon a motion for a new trial on the ground that a verdict is against evidence, and the same considerations which have established the rule that every reasonable presumption is to be made in support of a verdict thus attacked dictated, no doubt, the provision of the statute thus quoted, as to the weight to be attached to the findings of a court. Farrell v. Rail

road Co., 60 Conn. 239, 253, 21 Atl. 675, and 22 Atl. 544.

It is also assigned for error that the court admitted the deed from Towne, trustee, to the plaintiff, given in June, 1891, in proof of the latter's possession. The trespass complained of occurred after this conveyance was made. The terms of the deed include the locus in quo, and the plaintiff claimed title under it. Whether, therefore, it was a proper execution of the power granted in the will of Salem Jacobs, or not, it was admissible to characterize and define the possession subsequently held by the plaintiff. It gave at least color of title, and tended to show that a possession claimed under it was commensurate with the estate which it purported to convey. 2 Greenl. Ev. §§ 618, 619. The defendant urges that, when offered, there was no proof that the land ever belonged to the trust estate; but, if there was anything to this objection, it was disposed of by the subsequent introduction of such evidence; so that no injustice can have been done by the ruling.

The refusal of the court to grant a nonsuit when the plaintiff rested his case furnished no ground of exception to the defendant. Bennett v. Insurance Co., 51 Conn. 504.

The admission by the court, after the defendant had rested, of the probate record of the appointment of the successors to William Joslin, as trustee under the will of Salem Jacobs, and of sundry deeds of the Jacobs lands, as evidence in rebuttal and also in chief, can constitute no ground of error. The discretion of a trial court as to the time and order of admitting evidence is not subject to review.

The court held that the defendant's acts upon the premises from 1885 to 1891, inclusive, did not prove or constitute actual possession on his part, but that he was an intruder without color of title, and the actual possession was either in Towne, trustee, as the legal owner, or in the plaintiff. The acts of the defendant were of an equivocal character. The lot was of trifling value, and belonged to a trust estate. Up to 1885 it had been occupied by tenants under the trustee. Whether, after that time, the defendant, from the use he made of it, was to be regarded as in possession or a mere trespasser, was a question of fact, the solution of which depended mainly on the credit to be attached to his own testimony. For the reasons already given, we think the court was justified in giving this very little credit, and, so, that the finding complained of is not clearly against the weight of evidence.

The court also held, as matter of law, that the deed from Towne, trustee, of June, 1891, gave the plaintiff title, or, if not title, then a claim or color of title which characterized his possession. It is enough to support the judgment that it gave color of title, and this, in our opinion, it clearly did. If it be so that the power to sell was personal to the

trustee named in the will, and its exercise dependent on conditions precedent, as to the fulfillment of which there was no evidence, yet the legal title to the lot was vested in his successor in the trust, and that title (described by reference to the date of the testator's decease) his deed purported to convey, with a covenant of good right to convey. The defendant's claim of title, on the other hand, was not even colorable. It rested simply on the fact that he held a warranty deed which called for 834 acres, and that the bounds within which the granted premises were described contained only 814, while the locus in quo was an adjoining parcel, and, if included, would make up the two acres lacking. But, while an adjoining parcel, it was not owned by the heirs of Hale Jacobs, who were the grantors in the conveyance. One of them (Salem Jacobs) owned it in severalty, by a title which accrued to him. before the death of Hale Jacobs. Under such circumstances, it cannot be said that the defendant ever had color of title by his deed of 1874; and in addition to this, in 1880, long before he claimed to have taken possession of the lot in controversy, he conveyed to his sister, with full covenants of warranty, the entire tract covered by that deed, describing it as containing 834 acres.

There is no error in the judgment complained of. The other judges concurred.

BUCKINGHAM et al., to Use of CLARK, v. MURRAY'S EX'R.

(Superior Court of Delaware. Nov., 1884.) GUARANTY-WHAT CONSTITUTES-NOTICE OF ACCEPTANCE EVIDENCE.

1. A note addressed to a person, asking him to "let M. have what goods he requires, and oblige," is not a guaranty, but an original undertaking to become liable for such goods as might be delivered to M.

2. One who seeks to enforce a guaranty must show that notice of its acceptance was given to the guarantor.

3. On an issue as to whether goods were furnished on the credit of the person to whom they were delivered, or on the credit of one who had given such person a written order for the goods, bills rendered by the seller to the person to whom the goods were delivered, and other incidents surrounding the transaction, are admissible, though the goods were charged to the person giving the order.

Action of assumpsit by Buckingham & Co. (use of Benjamin S. Clark) against Elizabeth Murray. During the pendency of the suit, defendant died, and her executor was substituted in her stead. Verdict for plaintiffs. Charles B. Lore and Harry Emmons, for plaintiffs. Edward G. Bradford and George H. Bates, for defendant.

COMEGYS, C. J. (charging jury). This case is now about to be committed to you for decision, and it is therefore proper that I should state to you what the law is with re

spect to it, so that you may the better understand the significance and value of the facts shown by the papers in evidence, and the testimony of the witnesses.

Every case tried before a court and jury is presented by a statement of the plaintiff's claim. This is made by what is called a "declaration," which generally presents it in several forms. These forms are called "counts." In this case there are two of the latter. The first seeks to charge the defendant, as upon a contract of guaranty, for goods furnished. This is a count upon a special contract. The other is several claims in one count, called the "common money counts," in an action like the present, one of which claims is for goods, wares, and merchandise sold and delivered by the plaintiffs to the defendant. The suit was begun against Elizabeth Murray, in her lifetime. She died, however, and it was continued against her executor, the defendant, who became party to it. He is therefore the defendant, but as executor only, the claim being against the deceased's estate. The foundation of this case is the following writing, made and signed by the deceased, and delivered to the plaintiffs in this action, to whom it was addressed: A note written by Elizabeth Murray to the plaintiffs, requesting them to let James Murray have what goods he requires, and oblige. Dated February 22, 1882. It was proved as being in her handwriting, and there is no dispute with respect to that. In the declaration of the plaintiffs, it is treated as a guaranty or offer, rather, to become liable for such goods as James E. Murray might require, in case. he did not himself pay for them; and such the defendant's counsel insists that it is. But the plaintiffs deny, in this trial, that it is such an instrument, and having, since the court met, filed, under the statute, the common counts before spoken of, they rest their claim entirely upon that one of them for goods sold and delivered. As, however, the defendant insists that the paper which I have read is a guaranty, it is necessary you should know the mind of the court upon that point; for, should it be a guaranty, the plaintiffs would not be entitled to recover in this action. A guaranty is an agreement by one person to answer to another for the debt, default, or miscarriage of a third person. The most usual example of it is where one undertakes, if another will trust a third person, to pay the debt contracted by such third person, if the debtor should not do it. Such guaranties are strictly offers, to a proposed creditor, to become ultimately answerable for the debt of another, if the creditor will trust him. Such an offer does not, of itself, make a valid contract; but if accepted by the party to whom it is made, and notice of his acceptance be given to the offerer, it becomes then a binding agreement in law. The contest between the parties, with respect to the nature of the paper in question, requires that

this much shall be said to you, in order that you may understand the decision of the court, which is that the paper is not a guaranty, but a writing out of which, in this case, arose a contract, in contemplation of law, on the part of the maker of it, to become liable, as a debtor, for such goods as the plaintiffs might deliver to James Murray upon his requirement. Having determined this, it might seem that there was nothing for you to do but render a verdict for the plaintiffs for the amount of their claim, there being no dispute about such amount. But the defendant's counsel insist that the plaintiffs were not warranted, by the nature of the paper, in charging the defendant's testator with the goods supplied to James Murray. We think otherwise; but the question is still open whether the goods were furnished upon the credit of the deceased, as an original debtor, or upon that of James Murray, with the idea that they had to look to him first for payment. If such was their idea, then the bills furnished him, together with his testimony, would be evidence of that fact. If it was not their idea, then the charges in the plaintiffs' book of accounts, and the testimony of one of the plaintiffs, would be evidence to the contrary. Now in all cases,in this as well as in others,-decision upon matters of fact is entirely for the jury. Bearing in mind, therefore, the fact that the court has decided the paper, which I have read, to be an original undertaking, according to which the goods delivered to James Murray might be charged to Elizabeth Murray, and she be looked to primarily for payment for them (in fact, they seem to have been charged to her, according to the account book), yet the charges so made are not conclusive upon the point to whom the credit was given; but that, like all other points with respect to matters of fact, is determinable as well by circumstances as by direct proof. Recognizing, therefore, the apparent force of the fact that the entries in the book of accounts of the plaintiff's correspond with the character of the writing, as we have stated that character to be, and also taking into consideration the other paper signed by Mrs. Murray, in proof before you, as before said, there is still open the question whether or not the plaintiffs treated and considered James Murray as liable to them at all. If they did, the defendant is not liable to them as executor of Mrs. Murray, nor was she liable in her lifetime. In dealing with this question, you are to take into consideration the testimony of one of the plaintiffs who was examined,-that of James E. Murray,and also the paper proved in the case, which is the notice, produced by the plaintiffs, given by the deceased to Buckingham Bros., and to those whom it might concern, which notice is in these words: "To Messrs. Buckingham & Bro., and whom it may concern: You are hereby notified not to trust one on my account, either by an order or otherwise.