Webster v. Clark, 25 Me. 313; Barter v. Moses, 77 Me. 465; Adsil v. Butler, 87 N. Y. 585; Dormueil v. Ward, 108 Ill. 216: Albright v. Herzog, 12 Ill. App. 557; Lewis v. Lamphere, 79 Ill. 187; Bigelow Blue Stone Co. v. Magee, 27 N. J. Eq. 392. Rice's App. 79 Pa. 168, 206; Cornwell's App. | been exhausted, that their jurisdiction at7 Watts & S. 305; Kramer's App. 37 Pa. 71, taches. 76, 77; Toulmin v. Hamilton, 7 Ala. 362; Kinsey v. Me Dearmon, 5 Cold w. 392; Saylors v. Saylors, 3 Heisk. 525; Seibert v. True, 8 Kan. 62, 65; Vail v. Foster, 4 N. Y. 312, and the authorities cited; 1 Story, Eq. § 639, 639; East man v. Foster, 8 Met. 19; New Bedford Sav. Inst. v. Fairhaven Bank, 9 Allen, 175, and cases cited; Moses v. Murgatroyd, 1 Johns. Ch. 119; Phillips v. Thompson, 2 Johns. Ch. 418: Ten Eyck v. Holmes, 3 Saudf. Ch. 428; Curtis v. Tyler, 9 Paige, 432. The court then goes on to say that the right of the creditor does not depend on insolvency of the surety, and the creditor is not bound to wait until the fund goes into the hands of an assignee and assert his right there. The equity of the creditor does not depend upon the fact whether or not the trustee be in advance or in default to the trust estate. Wylly v. Collins, 9 Ga. 235; Helm v. Young, 9 B. Mon. 394. The equitable right of the creditor is not derivative from the surety or trustee holding the trust property, but is an independent right superior to the control of the trustee, and equity will cause the trust to be executed. See Cater v. Eveleigh, 4 Desaus. Eq. 19, 6 Am. Dec. 591; James v. Mayrant, 4 Desaus. Eq. 5o1, 6 Am. Dec. 630; Montgomery v. Eveleigh, 1| McCord, Ch. 267; 1 Lead. Cas. in Eq. (3d Am. ed.) 530; Storv, Eq. § 1250. These creditors dealt with persons intrusted with the control and management of the trust business, and furnished things necessary therefor in good faith, relying on the trust estate as well as on the personal liability of the person or persons conducting the business. They have a right to look to the trust property embarked in the trade. Ex parte Garland, 10 Ves. Jr. 110, 120; Pitkin v. Pitkin, 7 Conn. 307-313. Messrs. F. P. Goulding and T. P. Pingree, for defendants Turnbull and Atwater, trustees: The bill simply shows a contract debt of personalty sold to one of the three trustees, and if the plaintiff has any claim, an action at law will be the simple, plain, adequate remedy for the recovery of his debts. Jones v. Newhall, 115 Mass. 244. And in this Commonwealth a bill is demurrable, not only if it shows that the plaintiff has a remedy at law equally sufficient and available, but if al-o it fails to show that he is with out such remedy. Jones v. Newhall, 115 Mass. 252, 253, and cases cited. The plaintiff cannot maintain a creditor's bill because he does not show that he has recovered judgment on his debt. 2 Story, Eq. Jur. § 1216 b; Smith v. Hurst, 10 Hare, 30; McDermott v. Strong, 4 Jobns. Ch. 687; Reubens v. Joel, 13 N. Y. 488, 490, 492; Wiggin v. Heywood, 118 Mass. 514; Carver v. Peck, 11 Mass. 293; 3 Pom. Eq. § 1415, and cases cited in notes 3, 4. Courts of equity are not tribunals for the collection of debts, though they enable creditors to obtain payment, when their legal remedies have been exhausted. And it is only by the exhibition of such facts as show that these have When an attempt is made to reach equitable assets, the bill should state that judgment has been obtained and the execution returned unsatisfied. Baxter v. Moses and Webster v. Clark, supra; Hartshorn v. Eames, 31 Me. 93; and v. Haskell, 41 Me. 25; Dockray v. Mason, 48 Me. 178; Howe v. Whitney, 66 Me. 17; Taylor v. Rowker, 111 U. S. 110 (28 L. ed. 368): Adee v. Bigler, 81 N. Y. 349; Adsit v. Butler, 87 N. Y. 585. The bill cannot be maintained because of a lack of proper parties plaintif. The plaintiff and other claims are separate and distinct in diverse parties, having no connection with each other, and no one plaintiff interested in the claim of the other, and arise by divers distinct contracts for personalty with each claimant, without any privity between them, and where knowledge and notice to one would not bind another. Lapeer Co. v. Hart, Harr. Ch. (Mich.) 157; Marselis v. Morris Canal & Bkg. Co. 1 N. J. Eq. 31, 35-39; Bouverie v. Prentice, 1 Bro. Ch. 200; Ward v. Duke of Northumberland, 2 Anstr. 469; Saxton v. Davis, 18 Ves. Jr. 72; Hester v. Weston, 1 Vern. 463; York v. Pilkington. 1 Atk. 282; Cooper, Eq. Pl. p. 182; Whaley v. Dawson, 2 Sch. & Lef. 367; Jones v. Garcia Del Rio, 1 Turn. & R. 299; Birkley v. Presgrave, 1 East, 227; Ballard Paving Co. v. Mulford, 100 U. S. 148 (25 L. ed. 591). The bill is not that of one or more creditors suing in behalf of all, for the enforcement of a trust inter vivos, where any decree is for the benefit of all. There is no trust here to be enforced. The trustees conducting the trust are individually liable at law for the debts each has contracted, and he is responsible only for his own act, unless he has aided or concurred in the wrong-doing or mal-appropriation of assets by his associate trustee; and no such act or doings are alleged in this bill. Ex parte Garland, 10 Ves. Jr. 110; Er parts Richardson, 3 Madd. 138–157; Pitkin v. Pitkin, 7 Conn. 307; Burwell v. Cawood, 43 U. S. 2 How. 560 (11 L. ed. 378); Stanwood v. Owen, 14 Gray, 195, 198; Owen v. Delamere, L. R. 15 Eq. 134; Ormiston v. Olcott, 84 N. Y. 39, 346; Croft v. Williams, 88 N. Y. 284; Adair v. Brimmer, 74 N. Y. 566; McKim v. Aulbach, 130 Mass. 481. After he took charge of the trust Silas H. Pomeroy alone is responsible for debts then arising, whilst he is also responsible to the defendants Turnbull and Atwater, his co-trustees, for the avails of the trust fund and its property for the benefit of creditors whose debis had accrued prior thereto. Hall's App. 40 Pa. 409; Prevost v. Gratz, 1 Pet. C. C. 378; Fisk v. Sarber, 6 Watts & S. 18; Cadbury v. Duval, 10 Pa. 265. The business or trade that was carried on by the trustees was for the trust estate, not for themselves personally. In conducting it to gether, as trustees under the will, they were not partners; nor is their liability, one for the other, that of partners; there was no community of interest in property or profits in them, in the conduct of this business as trustees, and the attributes of partnership are entirely wanting. Denny v. Cabot, 6 Met. 82; Sikes v. Work, 6 Gray, 433; Fitch v. Harrington, 13 Gray, 465; Pratt v. Langdon, 12 Allen, 544; Ilove v. Howe, 99 Mass. 71; Meserve v. Andrews, 104 Mass. 360; Beckford v. Hill, 124 Mass. 588; La Mont v. Fullam, 133 Mass. 533; Legett v. Hyde, 58 N. Y. 272; Manhattan Brass Co. v. Sears, 45 N. Y. 797. Upon the bankruptcy of an executor and trustee, directed by the will to carry on a trade, with a limited sum to be paid him by the trustees for that purpose, the general assets beyond that fund are not liable; and the rights of new creditors are confined to. the funds in trade, and the credit of the executors or trustees carrying it on. Ex parte Garland; Ex parte Richardson; Pithin v. Pitkin; Burwell v. Cawood; Stanwood v. Owen and Owen v. Delamere, supra. Silas H. Pomeroy contracted these debts in disobedience of the decree, and in violation of its every sense and spirit, and is not entitled, himself, to any indemnity for or on account of those debts so contracted, unless he first makes good to the trust all he has cost and lost it; and his creditors are in no better position, and not entitled to have their debts paid out of the specitic assets, unless they reimburse the trust all he has cost and lost it. Re Johnson, L. R. 15 Ch. Div. 548. For the fraudulent acts of Pomeroy in conducting the business intrusted to him under the decree by which he created these debts of the second class, the defendants Turnbull aud Atwater are not answerable. Barnard v. Bagshaw, 3 De G. J. & S. 355, 358. C. Allen, J., delivered the opinion of the court: The late Theodore Pomeroy devised his mills and manufacturing property to three trustees, in trust, to continue and carry on his manufacturing business until his son Theodore L. Pomeroy should arrive at the age of twenty one years. They were to provide for the outstanding and current liabilities and to incur, on account of said trust estate, during the coutinuance of the trust, such further liabilities as a wise and prudent management might require, and, when bis said son should become twenty-one years of age, to convey the property to testator's two sons Silas H. and The dore L., or in case either one of them should decline to continue in business with the other, then to convey the same to the other, upon his paying certain sums to the son who should withdraw, with certain other provisions relating to the termination of the trust, not necessary to be recited here. The will further provides that the trustees should be entitled to fair and reasonable compensation, and that they should not be liable for any loss to the trust estate which did not involve bad faith on their part, and that at the termination of the trust and before any transfer or convey ance they should be fully indemnified against any then existing personal liability incurred in the proper execution of the trust. The three trustees accepted the trust and car. ried on the business together until May, 1885, when, in consequence of disagreements which had arisen among them, it was arranged that thenceforth the business should be carried on by Silas H. Pomeroy, one of the trustees, and this was done, under the circumstances which are detailed in the master's report. The son Theodore L. became twenty-one years of age on November 13, 1887, and the time had thus come for the termination of the trust. A large amount of indebtedness was then existing, some of which was incurred by the three trustees while carrying on the business together, and some by Silas H. Pomeroy while carrying on the business alone. A partnership firm be longing to the latter class of creditors brought the present suit in behalf of themselves and of other similar creditors, averring that the trus tees refused to pay their said debts, and that neither of them had property open to attachment or execution, and seeking to establish and enforce an equitable right to have their claims paid out of the trust property, and especially to have enforced in their favor the right of the trustees for reimbursement and indemnity out of the trust fund, before its distribution. The principal questions in the case are raised by the two trustees who withdrew from the active management of the business in 185, and they contend that the creditors whose debts accrued under the joint management are entitled to a priority over the later creditors, and indeed that the present bill cannot be maintained at all by the latter. In support of their demurrer, they rely upon the following propositions: (1) that the plaintiffs have no equity because they do not offer in the bill to make good to the trust fund the losses and defaults occasioned by the acts of the trustee, Silas H. Pomeroy, with whom they contracted, and that their right to the trust fund must be limited by his right to indemnify from that fund; (2) that the plaintiffs' sole remedy is at law; (3) that there has been no previous recov ery of judgment by the plaintiffs; and (4) that there is no community of interest between the plaintiffs, and that one creditor cannot sue in behalf of all. The most of these objections are answered by a brief consideration of the nature of the bill. It is in its essential character a bill seeking to enforce the proper execution of a trust, which is ready to be terminated, and in which nothing remains to be done but to transfer the trust property in accordance with the equitable rights of the various parties who assert conflicting claims thereto. It is indeed difficult to see how this object can be accomplished in any other way than by a suit in equity. The plaintiffs claim equitable rights in the premises. Their position as creditors entitles them to as sert such rights and to seek the determination of the court whether on the particular facts of the case their rights should be sustained, that is to say, where trustees are authorized to carry on a business and contract debts, they are not only liable personally for the payment of them, but the creditors may also resort to the trust fund, subject, however, to the rules | should succeed in maintaining their case upon of equity as applicable to the facts and circum- some ground independent of being substituted stances which may exist in any particular to the equity of the trustee who contracted the case. Ex parte Garland, 10 Ves. Jr. 110; Er debt to them. parte Richardson, 3 Madd. 138; Owen v. Delamere, L. R. 15 Eq. 134; Cutbush v. Cutbush, 1 Beav. 184; Thompson v. Andrews, 1 Myl. & K. 116; Burwell v. Mandeville, 43 U. S. 2 IIow. 560 [11 L. ed. 378]; Smith v. Ayer, 101 U. S. 320, 330 [25 L. ed 955]; Jones v. Walker, 103 U. S. 444 [26 L. ed. 404]; Pitkin v. Pitkin, 7 Conn. 307; 2 Story, Eq. § 1400; Lewin, Tr. 7th ed. 217. It is indeed contended on the part of the plaintiffs that their right to resort to the trust property is a primary and original right, which exisis independently of any right on the part of the trustees to be indemnified. Wylly v. Collins, 9 Ga. 223. the material facts involved in the issues raised by the pleadings. No objections or exceptions were taken to the report, and when the case came on to be heard before a single justice, it was, upon the request of both parties, reserved for the determination of the full court, upon the pleadings and the master's report. The more important questions which have been argued upon the merits are two: (1) whether the rights of the plaintiffs are qualified by any equity which exists in favor of the trust estate against Silas H. Pomeroy; (2) whether the earlier creditors are entitled to have a priority over the later ones. It is not necessary that the plaintiffs who institute such a suit should first have recovered judgment on their claim, or even that their claim should be yet due. Whitmore v. Orborrow, 2 Younge & C. Ch. 13; Story, Eq. 35, 47. And the usual way is for one creditor to sue in behalf of all. Story, Eq. Pl. § 99; Egberts v. Wood, 3 Paige, 520; Hallett v. Hal ett, 2 Paige, 15; Chapman v. Bankers & T. Pub. Co. 128 Mass. 478; Thompson v. Dunn, L. R. 5 Ch. 573. We can have no doubt, therefore, that the demurrer to the bill should be overruled. The demurrer was contained in the answer, and there appears to have been no formal order by a single justice overruling it, but the case was The view, however, which has prevailed in referred to a master, who has made a report England, so far as the question has been dis-which was apparently designed to present all cussed, is that the creditors may reach the trust property when the trustees are entitled to be indemnified therefrom, and that the creditors reach it by being substituted for the trustees and standing in their place. Re Johnson, L. R. 15 Ch. Div. 548; Dowse v. Gorton, L. R. 40 Ch. Div. 526; Lindley, Partn. 4th ed. 607,608. It is with reference to this doctrine that the defendants contend that the plaintiffs ought to offer in their bill to make good to the trust fund the losses and defaults occasioned by the acts of Silas H. Pomeroy. But this ground is untenable on the demurrer, because, assuming for the present this doctrine to be correct and taking the plaintiffs' case upon the lowest ground, the bill sets out the right of the trustees to be indemnified against personal liability incurred in the proper execution of the trust, the existence of such liability to the plaintiffs and others and the equitable right of the plaintiffs and others to have enforced in their favor for the payment of their claims the rights of the trustees for reimbursement and indemnity; and it asserts a right to have their claims paid Mention has already been made of the proout of the trust property and estate in full, or vision in the will, that the trustees shall be enif such property and estate are insufficient, then titled to a fair and reasonable compensation to have their claims paid in pro rota propor- for their services in administering the trust, tions; and prays that the trustees be held and and shall not be liable to any loss to the trust ordered to account for the trust property, and estate which does not involve bad faith on their that an account of the creditors may also be part. Assuming that the doctrine of the retaken and the equitable interest of Silas H.cent English cases above cited | Re Johnson and Pomeroy in the trust estate may be sold and disposed of, and the proceeds applied in pay ment of the plaintiffs and others. There is no occasion for any distinct offer on the part of the plaintiffs to make good any possible losses to the trust estate, arising from his misconduct, if any such there were, since they would only succeed to such rights as he might be found to have. There is no suggestion in the bill of any misconduct or default on his part, but if there were, and if the plaintiffs have no higher right than simply to stand in his place, the bill need not contain any such offer to make good losses in order to entitle the plaintiffs to reach whatever upon account may be found to remain as a fund from which he would be entitled to be indemnified. The result of such an accounting cannot be anticipated on a demurrer. If it should prove finally that there was nothing to which he was entitled, then the plain tifs would fail on the merits, unless they In reference to the first of these questions, there is nothing in the facts stated in the master's report which shows that there is any equity existing in favor of the trust estate against Silas H. Pomeroy, so that we have no occasion to consider the question whether, as a general rule of equity, the rights of the plaintiffs would be qualified thereby in case it should be found that he was himself subject to any such equity. Dowse v. Gorton] is applicable to the present case, we find nothing to show that Silas H. Pomeroy is indebted to the trust estate, or that he has caused any loss to the same for which he is responsible, under the terms of the will. There has been no formal accounting, and the material facts, briefly stated, upon which this question depends are as follows: Until May, 1885, the trustees carried on the business together. While so carrying it on, disagreements arose, and the other two trustees brought a bill in equity in the court, on the 11th of April, 1885, against Si as II. Pomeroy and the other parties in interest, under the Statute giving jurisdiction in equity to regulate the execution of trusts. On the 18th of May, 1885, an agreement was made whereby Silas H. Pomeroy was to take charge of the mills and property and carry on the business, and pay over to Turnbull, who was one of the other trustees, and whose firm $40,000. The master expressly finds that the goods became a part of the trust property, and that they were suitable and necessary therefor. Whether the purchase was or was not in accordance with the first decree, the second decree dealt with the question of any failure in that respect, and it has been complied with; so that it is not now to be alleged against Pomeroy that he failed to comply with the terms of the first decree, in respect to the purchase of goods. was also a large creditor of the trustees, the net | benefit of the other trustees in raising the avails over and above the cost of manufacture of the goods manufactured and sold by him, and he was also to give to the two other trus tecs an agreement with acceptable surety indemnifying them against any liability, debt or obligation created by his acts, and also securing the payment above provided for to Turubull. No restriction was put upon his power to contract debts in carrying on the business. Such agreement with surety was given, and Pomeroy took possession of the mills and property and proceeded with the manufacturing business under the same name as before. On the 1st of June, 1886, a decree was made in the suit in equity denying a motion for a receiver, and prescribing the manner in which Pomeroy should thereafter conduct the business. He was to proceed with the manufacture of the wool and raw material then on hand and turn o er the net avails of the goods to Turn bull & Co; his right to purchase new material was limited; after all the stock should be man ufactured he was to be at liberty to continue the business as trustee under the will; as soon as he bad manufactured the material on hand and the goods had been sold and the proceeds ap: plied as above provi led, then the balance, if any, due to Turnbull & Co., was to be deter mined by reference to a master, if the parties did not agree, and a mor gage upon the trust property was to be given to secure such balance, and thereupon the two other trustees were to be discharged as trustees; the business was to be so conducted as to create no liability upon the two other trustees; and there were certain other subordinate provisions. Pomeroy failed in certain particulars to conform to the above decree, and on the 4th of June, 1887, a new decree was entered, reciting that he had disobeyed the order of the court in that he had failed to turn over to Turnbull & Co the net proceeds of the goods, and had intermingled the material and goods, until their identity had been lost, and had used the proceeds for carrying on the general business of manufacturing, and that he had thus failed to apply $40,000: and it was thereupon ordered that all the wool and raw material then on hand should be devoted and set apart to raise $40,000 to be applied as directed in the former decree. The decree further provided that the business of manufacturing should be continued, and that additional necessary material might be prchased from time to time not exceeding $100,000, and added to and mixed with the stock on hand. From the proceeds of such manufacture after deducting the cost of such additional property, and expense, the sum of $40,000 and interest was to be paid to Turnbull & Co., or to creditors of the three trustees, There were ther provisions not necessary to be stated here. The master finds that it was ad mitted that the provisions above mentioned have been substantially fulfilled. The new decree in the particuinis above mentioned was a substitute for the former decree. If we the first decree was in force he exceeded what was therein prescribed in respect to the purchase of goods, that transgression was cured by the ap propriation of the property so purchased under the new decree. The goods so purchased went into the trust property and thus went for the There were certain other particulars in the decree of June 1, 1886, respecting which nothing has yet been done, namely, the indebtedness of the trust estate to Turnbull & Co. has not been determined, and no mortgage to secure the same has been given. With reference to these the first step to be taken was to determine the amount of indebtedness by reference to a master, if the parties did not agree, and if this has not been done there is nothing to show that the omission has been through any fault of Pomeroy. It was a matter between the three trustees on the one side, and Turnbull & Co, on the other, Mr. Turnbull himself being on both sides. There has been no accounting, in which Pomeroy has been found to be in default, as in the case of Re Johnson, before cited; and there is nowhere in the master's report any finding that there has been any loss to the trust estate through any fault of his; much less, that there has been any loss which involved bad faith on his part. We are therefore unable to see that he is in any manner indebted to the trust estate, or that there is any equity existing against him to prevent him from being indemnified out of the trust estate for personal liabilities assumed by him in the conduct of the business. Nor do we see any good reason for giving to the first class of creditors, whose debts accrued while the three trustees were carrying on the business, a priority over the latter creditors whose debts accrued during the management of Pomeroy. The business during the whole time was the business contemplated in the will. There was no change of trustees. By an arrangement among themselves, which was sanctioned by the court, one of the trustees assumed the direct management of the business, but there was no separation of the property, no inventory, no accounting and no withdrawal or discharge of any of the trustees. The rustees who retired from the active management made an arrangement with their associate which was then deemed sufficient for their protection. Pomeroy's failure in the first instance to conform to the directions of the first decree of the court was made good by what he did under the second decree. The master finds that he incurred debts and liabilities for and on account of the business for goods and materials used in and made a part and parcel of the trust property, and such goods and materials were suitable and necessary for the manufacturing business as con lucted by him, and for payment of them the creditors relied on the credit of the trust property, as well as on his personal credit; and these are the debts due to the plaintiffs and those in whose behalf this suit is prosecu ed. The trust is now ready to be closed. It is found that these two classes of creditors exist; the first class to the amount of about $91,000, and the . second class to the amount of about $51,000, besides a few others which are to be dealt, with specially. They have all furnished materials and supplies to the trust property, and it may prove that the trust property now remaining is insufficient to pay them all in full. Why should one class of creditors be preferred to another? There is nothing in the statutes and nothing in the provisions of the will directly applicable to such a case. It is suggested that under the decree made in June, 1886, it was contemplated that a mortgage upon the trust property should be given which would inure to the benefit of the first class of creditors. But such mortgage was to be given while the concern was a going concern; it has never been given, and the time has never come for it to be given. There was first to be a determination of the amount due, by a reference to a master, and this has never been done. The business is now no longer to be carried on under the trust but the trust is to be wound up, and in view of the question in controversy it is to be treated as if the trust property were insufficient to pay the debts in full. Ordinarily, under the insolvent laws, an agreement by a debtor to give to his creditor a mortgage in the future will not protect the mortgage when given from being set aside as a preference. Copeland v. Barnes, 147 Mass. 388, 350, 7 New Eng. Rep. 61, and cases there cited. The steps were not scasonably taken to procure the mortgage, and it is now too late. New equities have arisen. If the mortgage had ac tually been given, creditors would have been bound to take notice of it. Under the decree, it was not certain whether there would be any balance of indebtedness to be secured by the 1 mortgage or whether any mortgage would be given. The decree contemplated a security to be given in the future in case it should be determined that there remained any indebtedness to secure. But now the whole business is stopped and creditors must accept the situation as it is. The later creditors have contributed to increase the trust property and it would not be equitable or just to appropriate the whole trust property to the payment of the earlier creditors in full, leaving the later creditors to the chance of what might remain. The provision in the decree of June 1, 1886, that the business be so conducted in the future as to create no liability upon the two plaintiffs as trustees, and that they should not be liable for any debt incurred by S. II. Pomeroy in doing the business, referred only to a direct liability on their part. It did not mean that creditors in the future should be postponed to themselves in case of a possible necessity for resorting to the trust property. It is not contended that the creditors whose debts accrued under the management of Pomeroy have any direct claim upon the two other trustees. The several claims specially reported upon by the master may be allowed to be paid out of the trust fund, either as expenses of the adminis tration of the trust, or as the costs of parties properly brought before the court in a suit to determine the duties of the trustees, no objec tion being made by any party. Under the above decision, there is no need to classify them further. Abbott v. Bradstreet, 3 Allen, 587; 2 Perry, Tr. § 910; 2 Dan. Ch. Pr. 4th Am. ed. 1412. Decree accordingly. CONNECTICUT SUPREME COURT OF ERRORS. v. Franklin FARREL et al.. TOWN OF DERBY et al. (58 Conn. 234.) tained counsel to oppose this petition and this suit was brought to enjoin the payment for such services from the funds of the Town. The case sufficiently appears in the opinion. Messrs. V. Munger and John P. Kel. logg, for plaintiffs, in support of the demurrer: A town has no such implied right to its ex against that legislative body which has given the town all the powers it possesses and even its existence itself. 1. A town has power to employ counsel to oppose before the General Assembly a peti-isting boundaries that it may defend them tion for the division of its territory. 2. The vote of the town is not necessary to authorize selectmen to employ counsel and incur expense to oppose a division of the town by the General Assembly. (Andrews, Ch. J., dissents.) (December 30, 1889.) See Stetson v. Kempton, 13 Mass. 272; Minot v. West Roxbury, 112 Mass. 6; Coolidge v. Brookline, 114 Mass. 592; Westbrook v. Deering, 63 Me. 231; Opinion of the Justices, 52 Me. 598; Frankfort v. Winterport, 54 Me. 250. The fact that notice must be given under RESERVATION from the Superior Court our statutes that such a petition will be pre for New Haven County, upon bill, answer and demurrer thereto, of a suit to enjoin the payment by defendants of certain expenses incurred in opposing a petition to the General Assembly for a division of the Town of Derby. Judgment for defendants advised. The plaintiff with others presented a petition to the General Assembly asking for a division of the Town of Derby and the incorporation of a new town to be called the Town of Ansonia. The town agent and selectmen of Derby re sented to the Legislature, and the fact that notice was served upon the Town of Derby in this case, gives this Town no new rights, duties or powers. First Society of Waterbury v. Platt, 12 Conn. 181; Hartford Bridge Co. v. East Hartford, 16 Conn. 149; Granby v. Thurston, 23 Conn. 416. Mr. C. R. Ingersoll, with Messrs. Wooster, Williams & Gager, for defendants, contra: By law and immemorial usage, towns in Con |