Etna Bank v. Hollister. the first time notifying the defendant Hollister of the purpose to hold him liable on the bond, are not easily to be explained, as no reasons are suggested upon the record. These things would seem to indicate great reluctance to proceed against the defendant, and might naturally be supposed to indicate a possible want of confidence in the claim against him; nevertheless, in view of the strong provisions of the bond; we do not think the above facts constitute a legal defense. It does not appear that the defendant was misled to his prejudice by anything done or omitted on the part of the plaintiff, and the necessary elements of an estoppel against the maintenance of the suit are wanting. But it is further claimed that if there was error in holding that the claim of the plaintiff was not covered by the provisions of the bond, there was another error in holding that the bond was the personal obligation of the defendant, instead of the bond of the railroad company, and that the meaning of the bond is of no consequence if the real party who gave it is not brought into court. But the decision upon the construction of the bond was against the plaintiff, who appealed to this court, while upon the question who gave the bond, the judgment was wholly against the defendant, who did not appeal. So that we are called upon to reverse an erroneous judgment not appealed from, that we may thereby save an erroneous judgment that was appealed from. It is quite unusual to apply the principle under such circumstances; still we do not mean to say that it cannot be done. But the error ought to be manifest as matter of law, and if there entered into the judgment any element of fact upon which it may have been based, it ought not to be and cannot be disturbed. In this case the parties, in effect, conceded that, upon the question whether the bond in suit was the bond of Hollister or that of the railroad company, there was an ambiguity on the face of the instrument sufficient to justify a resort to extrinsic evidence, and the court heard the parties in regard to it without the suggestion of any objection on the part of the defendant. Indeed, the second defense distinctly raised such an issue of fact, and pre Comstock's Appeal from Commissioners. sumably the defendant assumed the burden of proof on that issue. The court distinctly found that issue for the plaintiff, and found certain special facts applicable, among which were these: The draftsman of the bond added the words, Treasurer of the Connecticut Valley Railroad Company,' to the name and residence of the defendant in the bond, as descriptive merely of the person who was to sign it. There was no evidence that the defendant had any power, by his signature as treasurer or otherwise, to bind the company by an instrument of this discription; and I find that he had no such power." This we must regard as conclusive. The defendant however, even here, in effect asks us to reverse another ruling without bringing the question up by appeal. He says the judgment was a nullity because on its face it shows there was no evidence at all to base it upon. The finding is that there was no evidence that the defendant had any power to bind the company, and then the court adds, "I find that he had no such power." The two things are not necessarily inconsistent, but may well stand together, for there might have been no evidence to show affirmatively such power, while, on the other hand, there might have been much evidence to negative its existence. There was error in the judgment complained of and it is reversed. In this opinion the other judges concurred. WILLIAM W. COMSTOCK'S APPEAL FROM COMMISSIONERS. Fairfield Co., March T., 1887. PARK, C. J., CARPENTER, PARDEE, A claim was presented against the estate of D. by the administrator of the estate of A., his widow, for "money loaned by A. out of her sole and separate estate, $2,135." This claim was disallowed by the commissioners and an appeal taken by the administrator to the Superior Comstock's Appeal from Commissioners. Court. In that court he filed the following more particular statement of the claim :-" $2,085, received by D. in his lifetime from A. from her sole and separate estate, as trustee thereof and under the express trust that he would keep the same invested for her and account to her for the same with interest on demand.” Held that there was no error in allowing the filing of this statement of the claim. The act of 1849 (Gen. Statutes, p. 186, sec. 3) provides that "all the personal property of any woman married since the 22d day of June, 1849 * * shall vest in the husband in trust." Held not to apply to personal property held by the wife as her sole and separate estate. A married woman has power to make a gift to her husband of property held by her as her sole and separate estate, but such transactions should be carefully scrutinized and there should be entirely clear and satisfactory evidence that she intended the transaction to be a gift. A married woman can also loan to her husband money held by her as her separate estate. Whether in such a case the statute of limitations would run against her claim :-Quære. The statute of limitations would not run in favor of the husband against his obligation to the wife as statutory trustee, nor against her claim for money placed in his hands to invest, manage and account for. Where a judge has stated in his charge to the jury, in commenting upon the evidence, the inclination of his judgment upon a question of fact, but has not imposed his opinion upon them as one of authority, it is not a ground for granting a new trial. [Argued March 15th-decided April 1st, 1887.] APPEAL from the doings of commissioners on the estate of George W. Day, deceased, in disallowing a claim presented against the estate by the appellant as administrator of the estate of Amelia F. Day, deceased, widow of the said George W. Day; taken to the Superior Court in Fairfield. County, and tried to the jury in that court before Stoddard, J. Verdict for the appellant, and appeal by the appellee for error in the rulings and charge of the court. The case is fully stated in the opinion. J. H. Perry, for the appellant (original appellee). J. S. Seymour, for the appellee (original appellant). LOOMIS, J. Between 1867 and 1879 Amelia F. Day, wife of and living with George W. Day, acquired about $2,000 by her personal services, under an agreement between herself, her husband, and her brother, by whom the money was Comstock's Appeal from Commissioners. paid to her, that it should be of her sole and separate estate, which money she from time to time delivered to her husband. She died in 1879; he died in 1883. W. W. Comstock, the administrator upon her estate, whom we shall call the plaintiff, presented a claim for the repayment of this money to the commissioners appointed to receive, examine and decide upon the claims against his estate. They allowed $305.73 and disallowed the balance, $1,912, whereupon he appealed to the Superior Court, and there, by verdict of a jury, recovered $2,000. S. P. Tuttle, the administrator upon his estate, whom we shall call the defendant, then appealed to this court. The plaintiff first presented his claim against the husband's estate to the defendant in 1884 in the following form :— "Estate of George W. Day, Dr. to William W. Comstock, Administrator of the estate of Amelia F. Day, deceased. "To cash loaned by the said Amelia F. Day in her lifetime to the said George W. Day in his lifetime, out of her sole and separate estate, between January 1st, 1868, and January 1st, 1881, $2,135.00, the same being the amount of all the money received by the said Amelia F. Day from William W. Comstock for the care and board of Georgiana Comstock for the period embraced between said last mentioned dates. The said William W. Comstock, administrator, further claims the interest on said sums loaned, from the dates when the same were loaned to the date when interest is allowed on other claims against said George W. Day's estate." In 1885, in the Superior Court, upon the suggestion of that court that he should present his claim with more particularity, the plaintiff made this additional presentation:— "On or about the 18th day of April, 1879, there was found to be due from the said George W. Day, then in full life, to the estate of Amelia F. Day, deceased, the sum of $2,035, by the admissions of the said Day to the said W. W. Comstock, and on April 29th, 1880, the said Day received from the said W. W. Comstock, on the account Comstock's Appeal from Commissioners. referred to in said claim, $50 more, amounting in all to the sum of $2,085; the same, except said $50, having been received by said George W. Day in his lifetime from the said Amelia F. Day in her lifetime, from and out of her sole and separate estate, and as trustee thereof, and under the express and acknowledged trust that he would keep the same invested for her in his business or elsewhere, and would account to her for the same with interest on demand. Said moneys were received by said George W. Day in payments of from twenty dollars to fifty dollars each, at intervals of about two months, beginning about April, 1869, and continuing to about October 1st, 1879." The defendant moved the court to strike out all except the last clause of this additional statement, because the other portions of it change the ground of action from that embodied in the first presentation. The court denied the motion. The parties were at issue to the court on the demurrer of the plaintiff to the fifth defense in the substituted answer of the defendant. The fifth defense was in these words : "The said George W. Day and Amelia F. Day were husband and wife, and living together as such on the first day of January, 1868, and so continued until her death, which took place October 18, 1879." The plaintiff's grounds of demurrer were stated in these words: 1. Because the appellant's claim is alleged to be upon an express and acknowledged trust. 2. The transactions upon which said claim is based are described as being between husband and wife, relative to her sole and separate estate which came into the husband's hands for investment merely, and as trustee thereof for the benefit of the wife, and not upon any other agreement whatever. 3. Because if not in law the sole and separate estate of the wife, then it appears that the moneys which are the subject matter of this suit were the statutory estate of the wife, acquired since the 22d day of June, 1849, in the |