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Scoville v. Mattoon.

meetings of the district, and has acted as one of its officers, especially in 1837 and 1838, when he was appointed by the school society one of the district committee, and uniformly claimed to be a member of the district down to about the time when this tax was imposed.

In the year 1883 Hubert and his son, the other plaintiff, alleging that they were members of the district, applied to the clerk to register the voters of the district. The clerk omitted the names of the plaintiffs from the registry. At a subsequent district meeting the plaintiffs offered to vote, but the meeting declined to receive their votes because their names were not on the registry list. It is too late to call in question a construction of the vote which the parties themselves had adopted and acted upon for more than fifty

years.

Indeed if there were no record evidence in the case, the facts to which we have referred would, in our opinion, raise a conclusive presumption that the plaintiffs had been legally annexed to, and were members of, the Center District, long before the omission by the clerk of their names from the registry list. In the recent case of The State ex rel. Halfway River School District v. Bradley and others, this court held that upon evidence of user of certainly not more significant character, and for a shorter period than in the present case, it might properly be found that the lines of a school district had been extended so as to include territory in an adjoining town..

In the case of Bowen v. King, 34 Vermont R., 156, where it appeared that towns were first empowered to unite in forming a school district in 1808, and a district had in fact exist ed, composed of the inhabitants of three adjoining towns, for twenty-five years before that, of the organization of which there was no record evidence. The court says (p. 164): "In favor of long-continued user and possession courts have said they will presume everything. Acts of parliament, grants from the crown, surrender of charters, and many other things have been presumed. This district appears to have been in continued existence and action for

Gunn's Appeal from Commissioners.

more than twenty-five years before 1808, and we may well presume that it was formed by an act of the legislature. The continued acquiescence, not only of the inhabitants of the district, but of all the three towns, cannot be otherwise rationally accounted for.

We do not think that the claim of the plaintiffs that the society had not power to annex to the district territory not contiguous to it, is well founded. The statute in force when the vote was passed, (Revision of 1808, p. 582, sec. 2) gave societies full power to alter and regulate school districts, and we see no reason why, in the exercise of this plenary authority, they might not annex to the district disconnected territory. In the case of Alden v. Rounseville, before cited, a similar claim was made, and the court says: "In the formation of school districts it is not necessary that all the persons within them should be within continuous geographical lines."

There is error in the judgment, and it is reversed, and the case remanded to the Court of Common Pleas.

In this opinion the other judges concurred.

SIMEON W. GUNN'S APPEAL FROM COMMISSIONERS.

Hartford Dist., Oct. T., 1886. PARK, C. J., CARPENTER, PARDEE, LOOMIS and GRANGER, JS.

G gave H a bond by which, on the payment by H of $17,000 with interest within a certain time, he was to convey to H certain described land, free from incumbrance; the bond containing the following clause"It being understood that I is to pay to C a note he holds against me of $3,000 with interest, and that the amount paid thereon shall be in part payment on the above.” Held that under this bond it was optional with H whether or not to pay the $17,000 and take the land, and that if he did not do so he was not bound to pay the $3,000 note to C.

[Argued October 7th-decided November 23d, 1886.]

Gunn's Appeal from Commissioners.

APPEAL from the doings of commissioners on the insolvent estate of George C. Hitchcock, deceased, in disallowing a claim presented against the estate by the appellant; taken to the Superior Court in Litchfield County and heard before Sanford, J. Facts found and claim disallowed. Appeal to this court by the original appellant. The case is fully stated in the opinion.

G. A. Hickox, for the appellant.

J. Huntington and A. D. Warner, for the appellees.

PARK, C. J. The appellant held mortgages on three tracts of land given him by one Hitchcock to secure certain indebtedness the latter was owing him. In the month of September, 1878, it was agreed between the parties that Hitchcock should give the appellant a release deed of one of the tracts for the consideration of seventeen thousand dollars, and that the appellant should give Hitchcock a release deed of the other two tracts, a receipt in full of all claims against him, and an instrument in writing in the form of a deed, binding himself, his heirs, executors and administrators, to re-convey the tract so conveyed to him on the payment of the sum of seventeen thousand dollars with the interest thereon, on or before the first day of October, 1888. The several instruments were executed by the parties at the same time, according to the agreement; and that part of the instrument on which this case hinges, given by the appellant to Hitchcock, binding himself to re-convey the property as aforesaid, was as follows:

"Now therefore I, the said Simeon W. Gunn, do by this writing bind myself, my heirs, executors and administrators, that if the said George C. Hitchcock, his heirs, executors or administrators, shall cause to be paid to me, my heirs, executors or administrators, the above mentioned sum of seventeen thousand dollars, together with the interest at six per cent., on or before the first day of October, 1888, then I bind myself, my heirs, executors and administrators,

Gunn's Appeal from Commissioners.

to give to the said Hitchcock, his executors and administrators, or to any other person he may desire, a clear warrantee deed of the above described premises free from all incumbrances whatsoever. It being understood that the said Hitchcock is to pay to Miles Camp a note he holds against me, the said Gunn, of the amount of three thousand dollars with interest; and that the amount paid thereon shall be in part payment on the above."

The deed of release given by Hitchcock to the appellant, and the instrument of reconveyance given at the same time by the appellant to Hitchcock, together constituted a mortgage of the property for the sum of seventeen thousand dollars. But unlike other mortgages, it is said that the last clause in the instrument with regard to a reconveyance, bound Hitchcock by his acceptance of it to pay the appellant's note to Camp at all events, whether he redeemed the property or not.

We do not so understand the instrument. There is nothing in it that obliged Hitchcock to pay all or any part of the seventeen thousand dollars mentioned therein. The entire matter is left optional with him. "If the said George C. Hitchcock, his heirs, executors or administrators, shall cause to be paid to me," etc., is its language. There is just as much obligation to pay the entire amount of seventeen thousand dollars as there is to pay any part of it. Payment of the whole or any part of it is optional as in the case of any other mortgage. We construe the passage in controversy to mean that, if Hitchcock should redeem the property, it was understood that he was to pay to Miles Camp a note he held against Gunn, and that the amount paid thereon should be in part payment of the seventeen thousand dollars and the interest thereon.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.

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Hartford Dist., March T., 1886. PARK, C. J., PARDEE, LOOMIS and
GRANGER, Js.

Where a first writ of error abates through an act of the plaintiff in error or is withdrawn by him without good cause, a second writ of error brought in the same court is not a supersedeas of execution.

Where a writ of error is brought for the purpose of delay it does not supersede the execution.

An appeal to this court under the act of 1882, (Acts of 1882, ch. 50,) which provides for the carrying up of cases by appeal instead of by motion for a new trial or motion in error, performs in all respects the office of a writ of error.

Where an appeal to this court had been taken from the judgment of the Superior Court, and the appeal was afterwards withdrawn, and a writ of error brought in which the same errors were assigned as on the appeal, with the exception of the single assignment "that the court erred in holding that the body of the defendant in the original cause was liable to imprisonment upon execution," it was held that the error thus assigned lay wholly outside of that part of the record that could be brought up for revision upon a writ of error, and therefore that it did not constitute such a difference between the appeal and the writ of error as to constitute a reason for the withdrawal of the appeal and the substitution of the writ of error.

Where an execution is served and returned too early it will not exonerate the bail unless he has been actually prejudiced by it.

[Argued March 9th, 1886-decided February 25th, 1887.]

ACTION upon a recognizance of the defendant as special bail; brought to the Superior Court in Hartford County and upon facts found reserved for the advice of this court. The facts are sufficiently stated in the opinion.

F. Chamberlin and E. S. White, for the plaintiffs.

1. The writ of error cannot operate as a supersedeas because it was brought for the purpose of delay. This is a question of fact, as to which the finding is explicit that such was the purpose. It is well settled that in such a case the writ of error is not a supersedeas. Dutton v. Tracy, 4 Conn., 372, and cases cited in the opinion. It is also held

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