tion, so as to give effect to the intention of the parties thereto, and so as to carry out, rather than defeat, the purposes for which they were executed. They should neither, on the one hand, be so narrowly or technically interpreted as to frustrate their obvious design, nor, on the other hand, so loosely or inartificially as to relieve the obligor from a liability fairly within the scope or spirit of their terms. It is difficult to suggest a satisfactory reason for holding that the death of one member of a creditor firm, long after goods have been sold and delivered, releases the obligor company from its liability to make good the loss arising from a subsequent insolvency of the debtor during the continuance of the bond that would not equally apply to the case of an individual creditor who was not a member of any firm. The object of this peculiar kind of indemnity is to guaranty vendors against loss by reason of the insolvency of their debtors; and if the debt has been contracted during the continuance of the bond of indemnity, and while the firm or the individual protected by the bond is actually engaged in business, though the loss happens after the death of one member of the creditor firm, or after the death of the individual creditor, when there is no firm, the contingency contracted against-the insolvency of the debtor-is precisely the same as though the death of the creditor had not occurred at all. If, in the case of an individual creditor who is indemnified by such a bond, and who, after selling his goods, dies, it be held that the bond is made void because of his death, there would be superadded, by construction, a provision of avoidance beyond the two designated in the eighth clause. The failure of the person indemnified, and his discontinuance of business, are specified. His death is not. In addition, then, to the requirements that he should not fail and should not discontinue business, the obligation of the bond would be made subject to the further condition that the creditor survive the period of time covered by the contract of indemnity; and thus, by pure implication, there would be written into the eighth condition, heretofore quoted, a contingency not therein expressed, or even necessarily implied. And in the case of a firm precisely the same situation would exist. Undoubtedly, the death of a member of a firm does, by operation of law, dissolve the partnership, but such a dissolution of the firm can in no sense be said to be a discontinuance of business by the indemnified. The surviving partner winds up the concern. The dissolution is by operation of law, and not by the act of the parties; and the discontinuance of business on the part of the firm is not a discontinuance by the firm, but by operation of law, in consequence of an act of God. Obviously, the term "discontinuance by the indemnified" has relation to the act of the indemnified (either his voluntary act, or the consequence of his voluntary act), precisely as the other condition (the failure of the cred

itor) relates to a situation arising from his own acts or conduct. Had the design been to constitute the death of the creditor a ground for avoiding the bond, the addition of the words "and the death of the indemnified," or words of like import, would have placed the matter beyond dispute; and every individual purchasing such a bond would then have been advised, in plain terms, that the contingencies which he encountered, and was obliged to avoid, so as to enable him to recover on the bond, were not only his own failure in, or discontinuance of, business, but his death during the period covered by the indemnity. The construction contended for by the appellant places death (an act of God) in the same category as discontinuance of business by the indemnified (an act of the individual). It does not discriminate between what is the act of the party himself, on the one hand, and the consequence resulting from his death, which, on the other hand, is not his act, but makes the one the equivalent of the other, in so far as respects the continuing validity of the bond. And it does this, too, by ascribing to the words of the bond a meaning which, at best, is both strained and unnatural. In resisting the enforcement of an obligation of this character upon the ground here relied on, the defendant must show that its refusal to fulfill its contract is justified by some term of defeasance contained in the undertaking itself; and, unless this appears with reasonable clearness, the obligor cannot escape liability. If we entertained any reasonable doubt as to the correct interpretation to be placed on words we have been considering in the eighth condition indorsed on the bond, that doubt would be sufficient to solve the question against the defendant, be cause its contract to indemnify must stand in full force unless more than a doubt exists as to whether the defeasible conditions embrace the particular ground of avoidance relied on. The instruction given by the court agrees with the views we entertain, and we accordingly affirm its judgment. Judgment affirmed, with costs above and below.

PITKIN et al. v. NEW YORK & N. E.

R. CO.

(Supreme Court of Errors of Connecticut. Nov. 22, 1895.)

APPEAL TO WHAT TERM TAKEN.

Under Gen. St. § 1129, providing that a party may appeal from the judgment to the supreme court of errors "next to be held." etc., where a term of the supreme court intervenes between the date of the judgment and the time of filing the appeal, the appeal cannot be taken to such intervening term, but must be taken to the next term; and Pub. Acts 1889, c. 116, providing that an appeal may be taken to the term to be heard next after the filing of the ap peal, does not give a right of appeal which did not exist before, but is simply declaratory of the general statute.

Appeal from superior court, Hartford county; Thayer, Judge.

Action by Henry E. Pitkin and others, administrators, against the New York & New England Railroad Company, to recover for the death of plaintiffs' intestate, caused by defendant's negligence. From a judgment in favor of plaintiffs for $10 only, rendered May 1, 1895, they appealed. Defendant files a plea in abatement on the ground that the appeal was taken to the May term, 1895, instead of to the October term, 1895. Plea in abatement sustained, and appeal dismissed. John A. Stoughton, for appellants. Edward D. Robbins, for appellee.

TORRANCE, J. In this case the appeal to this court was taken by the plaintiffs to the supreme court of errors to be holden at Hartford in and for the First judicial district, on the first Tuesday of May, 1895." The defendant, claiming that said appeal should have been taken to the succeeding October term of said court, filed in due time in this court a plea in abatement in said cause, setting up the facts upon which its claim was based, and praying that the appeal might be dismissed for the reasons set forth in said plea. The facts set up in the plea are substantially admitted in the answer thereto made by the plaintiffs, and to this answer the defendant demurred. The record shows that the judgment from which the present appeal was taken was rendered May 1, 1895; that notice of appeal was filed on the 4th of the same month; that a finding of facts was filed by the judge with the clerk on the 16th of May, 1895; and that the appeal in writing was filed and allowed on the 24th day of that month. It further appears that the term of the supreme court of errors to which the appeal was thus taken had ended before the written appeal was filed and allowed. It thus appears that the May term of this court to which the appeal was taken was the term "next to be held" after the judgment was rendered and after the notice of appeal was filed; while the October term, 1895, was the one "next to be held" after the written appeal was filed and allowed. Under the act of 1889 (Pub. Acts 1889, c. 116) providing that an appeal of this kind may be taken to the term to be held next after the filing of the appeal, it is conceded that the plaintiff's might have taken their appeal to the October term; but they claim that they were also at liberty, under the provisions of the General Statutes relating to appeals of this kind, to take it, at their option, to the May term; and the question here is whether this claim is well founded.

It will, of course, frequently happen that the court to be held next after the rendition of the judgment appealed from and the one to be held next after the filing of the written appeal will be one and the same court; and, whenever this is the case, an appeal taken to that court will, in this respect, be properly taken; but whenever, as may often happen, a term of the supreme v.34A.no.8-45

court intervenes between the date of the judgment and the time of filing the appeal, it becomes important, in point of practice, to determine whether the appeal can be taken to such intervening term. The answer to the question thus raised by the plea in abatement depends upon the construction to be put upon section 1129 of the General Statutes, which in cases of this kind provides as follows: "If either party thinks himself aggrieved by the decision of the court upon any question or questions of law arising in the trial, he may appeal from the judgment of the court in such cause or action and remove the said question or questions, for revision, to the supreme court of errors next to be held in the judicial district or county where the judgment was rendered." What do the words "may appeal * 寧寧 to the supreme court of errors next to be held," as they stand in this section, mean? Do they mean the term of court to be held next after the rendition of the judgment, even in cases where the written appeal is filed after such term has begun or has ended, or do they invariably mean the term of court next to be held after the written appeal is filed? We think this last is the true meaning of the words in question, whether considered as standing by themselves, or when read, as they ought to be, in the light of the four sections immediately following section 1129. If we once determine when and at what stage of the proceedings described in the five sections referred to an appeal is or may be said to be "taken," it will go far 10 settle the question under consideration. 'The plaintiffs seem to contend that the appeal is taken when the notice of appeal is filed, but this clearly cannot be true. The notice of the appeal is not the appeal itself. It is not required that the notice shall state the court to which the appeal is taken, nor the reasons nor grounds of the appeal. It is, in substance and effect, only a statement that the party then intends to appeal within the time and upon the conditions prescribed by law and the rules of court. It is but one step in the process of taking an appeal; and at the time when it is required to be filed the party himself, in many cases, cannot know to a certainty that he will take the appeal, or that he will have any just grounds for an appeal. Within the time prescribed for taking an appeal the party desiring to take one may delay taking it to the last moment. Up to that time, all the steps in the process, preceding the filing of the written appeal, are preparatory merely. When he in fact "appeals," he is required within the proper time to file with the clerk of the court where the judgment was rendered or decree passed “an appeal in writing, substantially in the form” prescribed in section 1133, and then and there to give security to the adverse party for costs. When this is done, and not till then, the appeal is taken. Under these sections, then, we think the appeal is taken only

when the written appeal is filed in substantial compliance with their provisions; and when, therefore, section 1129 says a party "may appeal * to the supreme court

of errors next to be held in the judicial district or county where the judgment was rendered," it means an appeal to a term of court to be held next subsequent to the time of filing the written appeal, and not an appeal to a term of court ended, or already begun, at that time. In short, we think the words last above quoted must be construed as if they read, "may appeal * ** to the supreme court of errors next to be held after the filing of the appeal, in the judicial district or county where the judgment was rendered." This construction, we think, best carries out the legislative intent expressed in those sections; it preserves the rights of all parties; it leads to no absurd results; and it gives a general, certain, and imperative rule, easily understood and easily followed. On the other hand, the construction contended for by the plaintiffs serves no useful purpose, and leads, or may lead, to the somewhat singular re sult of taking an appeal to a term of court long past at the date of the appeal. In the light of what has been said, we think the act of 1889 hereinbefore referred to must be regarded simply as declaratory of the meaning of section 1129, and not as giving a right of appeal which did not exist before. The conclusion reached makes it necessary to hold that the plea in abatement must be sustained, and the appeal dismissed. The plea in abatement is sustained, and the appeal is dismissed. The other judges con

curred.

BRISTOL SAV. BANK v. GRAHAM. FARMINGTON SAV. BANK v. HILLS et al. (Supreme Court of Errors of Connecticut. Nov., 1895.)

APPEAL-TAKEN TO WRONG TERM-DISMISSAL.

Where an appeal is taken to the same term of court at which the appeal was allowed and filed, instead of the next term, a plea in abatement will be sustained, and the appeal dismissed.

Appeals from superior court.

Separate actions by the Bristol Savings Bank against Sarah Graham and by the Farmington Savings Bank against Burritt Hills and another. From the judgments rendered Sarah Graham appeals. Dismissed.

Marcus H. Holcomb, in support of the plea in abatement. Frank L. Hungerford, in opposition to the plea in abatement.

TORRANCE, J. In each of these cases, which are appeals to this court brought by Sarah Graham from judgments rendered in the superior court, pleas in abatement were in due time filed in this court, on the ground that the appeals in each case were taken to the May term, 1895, of this court, instead of

to the present October term. In both cases the facts set up in abatement are the same, and they are substantially admitted by the pleadings in this court. The facts are briefly these: In each case the judgment appealed from was rendered March 12, 1895; in each notice of appeal was filed March 13, 1895; in each the judge filed a written finding of facts on the 6th day of May, 1895; and in each a written appeal, as required by law, was filed and allowed on the 10th of May, 1895. In each case the written appeal was taken to the supreme court of errors to be holden in and for the First judicial district, at Hartford, on the first Tuesday of May, A. D. 1895. The May term, 1895, of said court began on the 7th day of May, three days before the written appeals were filed. It thus appears that the appeals in question were not taken to the term of court next to be held after the appeal was filed, and in this respect the two cases are similar to the case of Pitkin v. Railroad Co. (just decided by this court) 34 Atl. 704. This last case is controlling in these two; and in each case, for the reasons stated in the Pitkin Case, the pleas in abatement must be sustained, and the appeals dismissed. The other judges concurred.

DORRANCE v. RAYNSFORD et ux. (Supreme Court of Errors of Connecticut. Nov. 22, 1895.)

SALE BY ADMINISTRATOR.

1. A person claiming land under a deed by an administrator, executed by order of the probate court, must show the facts giving the court jurisdiction to order the sale.

2. Under Gen. St. § 600, authorizing the probate court to authorize the sale of a decedent's lands on application by the administrator, on a hearing after a public notice, a deed by an administrator, executed by virtue of an order made on oral application and without notice, is void.

Appeal from superior court, Windham county; Thayer, Judge.

Action by Henry Dorrance against Ira Raynsford and wife, to recover the possession of land. From a judgment for defendants, plaintiff appeals. Affirmed.

Plaintiff claimed the land in question, which was occupied by George W. Palmer up to the time of his death, under a deed executed by Gilbert A. Palmer as administrator of George W. Palmer, deceased, which recited that it was given "by virtue of an order of the court of probate for the district of Canterbury, dated the 29th day of September, A. D. 1892, authorizing and directing me to sell at public or private sale the real estate of the said George W. Palmer, deceased." The trial court found that "no written application was ever made to said court of probate for authority to sell said real estate," but that "an oral application was made by the said administrator to sell

the said real estate for the purpose of raising money to pay the debts of the said intestate estate," and that "no public notice of any hearing upon an application for such sale was ever ordered or given," and that "no evidence, other than said order of sale, was offered tending to show that any hearing was had before said court of probate with reference to the sale of said real estate, or the issuing of said order." The order of the court of probate was as follows: "On the application of Gilbert A. Palmer, administrator on the estate of Geo. W. Palmer, late of Canterbury, in said district, deceased, showing that it is for the interest of said estate that such of the real estate of said deceased as is hereinafter described should be sold, and further showing that the real estate of said deceased, proposed to be sold, consists of a certain piece or parcel of land, with buildings thereon, situated in the town of Canterbury, in said probate district, this court finds the facts as set forth in said application to be true. Whereupon the court doth authorize and direct said Gilbert A. Palmer, administrator, to sell, either at public or private sale, and in such manner as will least injure the heirs, the real property of said estate, first giving at least ten days' notice of the time and place of the proposed sale by advertising in a newspaper having a circulation in said Canterbury, and by posting on the public signpost nearest the estate to be sold, and within the same town, and make return to this court to whom sold, and for how much, with the expense of sale."

Charles F. Thayer, for appellant. J. H. Potter, for appellees.

ANDREWS, C. J. The only substantial question presented by this appeal is whether or not the deed under which the plaintiff claimed was valid to convey the real estate that had belonged to George W. Palmer in his lifetime. All the other questions in the case are included in this one. "It is a general principle that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under that deed is as much bound to prove the performance of the act as he would be bound to prove any matter of record on which its validity might depend. It forms a part of his title. It is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he became a purchaser, and the evidence of them should be preserved as a necessary muniment of title." Williams v. Peyton's Lessees, 4 Wheat. 79 (Marshall, C. J.); Ransom v. Williams, 2 Wall. 313, 319; Early v. Doe, 16 How. 610; Mason v. Fearson, 9 How. 248; Thatcher v. Powell, 6 Wheat. 119, 125; Beekman v. Bingham, 5 N. Y. 366; Insurance Co. v. Tisdale, 91 U. S. 238; Whart. Ev. §§ 176, 923. To support his title

under this deed, it was necessary for the plaintiff to show that the said administrator had a valid power to sell the land of his intestate, and that such power had been exercised in the manner required by law. To do this he put in evidence the order of the court of probate, and the other evidence mentioned in the finding. By the law of Connecticut, as by the common law, the real estate of a deceased person vests at once in his heirs or legatees. 2 Bl. Comm. 201; 1 Swift, Dig. 113. George W. Palmer died intestate, and whatever real estate he owned at the time of his death vested immediately in his heirs, and could be taken from them only to satisfy some claim existing against him in his lifetime, or some condition arising in the settlement of his estate which made the sale of land necessary or advantageous, and then only in the manner pointed out by law. Shelton v. Hadlock, 62 Conn. 143, 25 Atl. 483; Buel's Appeal, 60 Conn. 65-67, 22 Atl. 488. The several statutes, and statutory changes according to which the courts of probate have from time to time been empowered to authorize the sale of any interest which a deceased person, whose estate was being settled, had in such real estate, have been very recently considered by this court in Buel's Appeal, supra. We have no occasion to repeat that examination. Originally, courts exercising jurisdiction over the settlement of estates of deceased persons, had no authority whatever over the real property belonging to the deceased. In later times such courts could, by the authority of the statutes, order the sale of so much-and only so much—of the land of the deceased as was necessary to pay any excess there might be of the indebtedness of the deceased over the value of the personal property. This was the law of Connecticut down to very recent times, as is shown in Buel's Appeal. But under the later statutes, as well as under all former ones, a court of probate, when ordering a sale of any of the real estate of a deceased person, is exercising a special statutory power. It is a power not regarded as one that pertains to the ordinary settlement of the estate. In all such cases the rule is that the authority must be strictly followed, otherwise the order will be void. Wattles v. Hyde, 9 Conn. 10; Watson v. Watson, 10 Conn. 77; Howard v. Lee, 25 Conn. 1; Atwater v. Barnes, 21 Conn. 237; Parsons v. Lyman, 32 Conn. 566, 571; Potwine's Appeal, 31 Conn. 383; Thatcher v. Powell, 6 Wheat. 127.

The evidence offered by the plaintiff was insufficient to support the deed. Whenever the land of a deceased person is sold by an order of the court of probate, the only prudent course is that the application to the court should be in writing, so that the facts on which the sale of the land was sought, and on which the sale was authorized, should appear distinctly on the record. If an oral application could ever be tolerated,

it could only be in a case when the record itself set forth the facts in full. In this case the record is fatally defective, and is not saved by the provisions of section 436 of the General Statutes.

But there is a much stronger reason. The statute (section 600) under which the court of probate acted requires that there should be a hearing, after a public notice, before any order for the sale of any land of a deceased person can be made. In this case there is no evidence that any public notice, or any notice whatever, of the application to sell, was given to the parties interested adversely in the estate sought to be sold. The order of sale was invalid for this reason. It appears that among the persons so adversely interested were the present defendants, as also were the heirs of George W. Palmer. They had no notice of any hearing, nor did they have any hearing as to the proposed sale. As to them the proceedings before the court of probate were coram non judice, and wholly void. It is a principle of natural justice, of universal obligation, that, before the right of an individual can be bound by judicial sentence, he shall have notice, either actual or constructive, of the proceedings against him. The Mary, 9 Cranch, 126; Bradstreet v. Insurance Co., 3 Sumn. 607, Fed. Cas. No. 1,793. The evidence failed to show that the said administrator had power to sell the land described in the deed. There is no error. The other judges concurred.

STATE v. GLAVIN.

(Supreme Court of Errors of Connecticut. Nov. 22, 1895.)

MUNICIPAL CORPORATIONS-IMPOSITION OF LICENSE TAX-VALIDITY OF ORDINANCE.

Under a power to license an occupation, given by its charter, a city may impose a fee sufficient to pay the reasonable cost of issuing the license, but not for the purpose of raising revenue; and an ordinance which prohibits peddling without a license, and provides that a license may issue on payment of a fee not exceeding $50, without fixing the time for which the license shall be granted, authorizes an unreasonable charge, and is invalid.

Appeal from criminal court of common pleas, New London county; Noyes, Judge.

John T. Glavin was convicted of peddling in the city of New London without a license, in violation of ar ordinance of said city, and appeals. Reversed.

Jeremiah J. Desmond, for appellant. lai A. Hull, Pros. Atty., for the State.

Had

ANDREWS, C. J. The defendant was prosecuted in the police court of the city of New London upon a complaint made by the prosecuting attorney of that city, charging "that John T. Glavin, of said city, on the 11th day of July, A. D. 1895, with force and arms, at said city, did peddle, vend, and sell in Potter street, in said city, and from house to

house in said city, merchandise, to wit, wringing machines, lamps, and other merchandise, not the product of farms of this state, or fish taken in the waters thereof, without a license from the mayor or court of common council of said city, against the peace, of evil example, and contrary to the form of the statute in such case made and provided, and to an ordinance of the city of New London relating to peddlers." He was convicted, and appealed to the criminal court of common pleas in New London county, where he filed a demurrer to the complaint as follows: "(1) The ordinance of the city of New London, Connecticut, upon which said complaint and information are based, is unconstitutional and void, inasmuch as it contravenes the provisions of the federal constitution, and also the provisions of the constitution of this state. (2) Said ordinance is invalid, for the reason that its provisions are contrary to common justice, right, and reason, and abhorrent to the established principles of natural justice and equity. (3) Said ordinance is void, as it is in restraint of trade, and an instrument of oppression, and of unfair and intolerable discrimination. (4) Said ordinance is invalid, because it imposes a revenue tax entirely without legal warrant, end beyond any authority granted by the legislature to the said Icity of New London. or to its court of common council, or to its mayor." This demurrer was overruled, whereupon the defendant pleaded not guilty. He was tried to the jury, who returned a verdict of guilty. He was sentenced to pay a fine of $15, and has appealed to this court.

The ordinance of the city of New London passed on the 4th day of August, 1879, on which the prosecution was brought, is as follows:

"Section 1. No person shall peddle, vend or sell, in any street, or from house to house in the city of New London, any merchandise other than the product of farms in this state, or fish taken in the waters thereof, without a license from the mayor or the court of common council.

“Sec. 2. Every person so licensed shall pay therefor, for the use of said city, a license fee of not more than fifty dollars.

"Sec. 3. Every person who shall violate the provisions of this ordinance, shall be guilty of a misdemeanor, and pay a fine to the treasury of the city of New London of not less than five no more than thirty dollars."

*

The charter of New London (section 18) provides that "the court of common council, when assembled accorcing to law, shall have power by a major vote of the members present. * * to regulate, license or prohibit the peddling or vending of any goods, wares, merchandise or other articles in and through the streets of said city," and to regulate and require license fees from all peddlers and vendors of various commodities in and about the streets and buildings of said city. It is certainly the settled law that "when, by the