Donohue v. Maloney.

property held with a named intent shall be a nuisance and that no action shall be maintained for requiring lost possession. In the exercise of this power the legislature has enacted section four, page 270, of the Revision of 1875, that "all intoxicating liquor, intended by the owner or keeper thereof to be sold in violation of law, shall, with the vessels in which it is contained, be a nuisance." And in section twelve, page 272, it is provided, "nor shall any action be maintained for the possession of any intoxicating liquor, held by the owner or possessor thereof contrary to law."

It is the claim of the plaintiffs that the statute refers only to liquor which has been seized as a nuisance by the prescribed statutory process, and is only for the protection of officers in the possession of it under such seizure. But the plain intent of it is to remove all temptation to the illegal keeping and selling of intoxicating liquors, and to accomplish this by making these acts unprofitable. To that end it is framed of language which is all inclusive-which does not admit of the limitation claimed. Therefore, if by his illegal act and intent the owner of intoxicating liquors. makes them a nuisance, and while in that condition they are lost to his possession by the peaceful act of an officer of the law under the forms of law, it will leave them in his possession so far forth as this writ of replevin is concerned; and this, not because the defendants have any rights in the matter which it is bound thus to protect, but for the reason that in listening to the complaint of the plaintiffs the court has come to a knowledge of the fact that they are asking its aid in regaining possession of that which by their act had become a nuisance; which they held and intended to use in violation of law; and which the law does not recognize as property. And upon this knowledge the statute compels the court to close its ear to any further suggestion from them; they are not to have its assistance in violating the law, and by the statute this result ensues regardless of the fact that this complaint is against defendants who gained a peaceful possession of the liquors under forms of law, and not against an officer who had seized them for condemna

Donohue v. Maloney.

tion as a nuisance. The illegal acts and intents of the plaintiffs are proven in a cause instituted by themselves; and they have had their day in court upon that question. This satisfies the law.

*

*

It is claimed too that the statute conflicts with the fifth amendment to the constitution of the United States, which provides that "no person shall be deprived of * property without due process of law;" with the fourteenth amendment, which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of * * property without due process of law;" also with section 12, article 1st, of the constitution of this state, which provides that "all courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by

due course of law."

But neither in fact nor intent does either one of these provisions affect or refer to the power of this sovereignty to protect by such laws as it shall deem proper, unless they are in flagrant violation of the principles of civil liberty underlying the social compact, the peace, health, morals and general welfare of the citizens. This power goes to the destruction even of property; certainly then to declare forfeited the right to regain possession of it by aid of a court, for the purpose of destroying or injuring the health or morals of these citizens. And he who has been heard by the duly established court having jurisdiction upon a question of fact has had the benefit of "due process of law."

While courts are not unanimous in according to legislatures the power of placing intoxicating liquors thus held in violation of law beyond its protection, in Oviatt v. Pond, 29 Conn., 479, a similar statute is sustained. That decision has support in Lord v. Chadbourne, 42 Maine, 429, Hamilton v. Goding, 55 Maine, 419, Preston v. Drew, 33 Maine, 558, and Spaulding v. Preston, 21 Verm., 9.

There is no error in the judgment complained of.

Bishop v. Clay Insurance Co.

In this opinion PARK, C. J. and LOOMIS, J., concurred; CARPENTER and GRANGER, Js., dissented.

GEORGE H. BISHOP AND ANOTHER vs. THE CLAY FIRE AND MARINE INSURANCE COMPANY.

An insurance company can not ordinarily insure by parol. But the parties may agree by parol as to the terms of a policy to be issued, and if the policy as written is by mistake materially different from the parol agreement a court of equity may correct it.

A bill in equity for the correction of such a policy should show clearly the parol contract that was made and in what the error consists.

And the proof of the parol contract must be so clear as to place the matter beyond doubt.

The power to reform a written contract is one in the exercise of which there should be great caution.

B and C, trustees under a second railroad mortgage and who were in possession of and running the road as such trustees, with a lien upon the property in their favor individually for advances made for the road, applied to an agent of an insurance company for insurance upon a depot building belonging to the road. A policy was issued to them as trustees, insuring their interest as such. The building was burned and a suit on the policy brought by them as trustees was successfully defended against on the ground that before the fire the first mortgage had been foreclosed and the property of the road transferred to a new corporation. B and C then brought a bill in equity for the reformation of the policy, alleging that they asked for, and that the agent agreed to give them, a policy insuring their lien as individuals for money advanced for the road; and it was found that they made such a proposition to the agent and that he assented to it. But it further appeared that the policy was drawn by the agent the same day, that the petitioners received it the same day without objection, that after the burning of the building they gave notice to the insurance company of their loss as trustees, and that they brought the suit upon the policy as trustees. Held that these facts were important as indicative of the understanding of both parties at the time, and that, as there was nothing to break their force except the words which passed between them as recollected by witnesses after more than six years, and after a controversy had arisen, the parol contract claimed was not established with such certainty as would warrant the court in amending the policy in accordance with it.

The right of the petitioners to reimbursement from the property of the road for advances which they had made, although one which the court would regard and protect, yet until it had been ascertained and defined by the decree of the court, was too uncertain an interest to be insurable.

Bishop v. Clay Insurance Co.

But if such an insurance would be valid, yet it would be of very questionable policy, and a court would not establish it by reforming a contract of insurance unless it appeared with almost absolute certainty that the parties intended it.

[Two Judges dissenting-holding that upon the finding of the court below the question of fact as to the parol agreement was no longer an open one, and that the interest was an insurable one.]

BILL IN EQUITY to reform a policy of insurance; brought to the Superior Court in Middlesex County, and reserved upon facts found for the advice of this court. The policy is the same one on which the suit at law was brought which is reported in 45 Conn. R., 430. The case is sufficiently stated in the opinion.

S. E. Baldwin, for the petitioners.

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

CARPENTER, J. This is an application to reform a fire insurance policy by correcting an alleged mistake therein. The bill sets out the first mortgage of the New Haven, Middletown & Willimantic Railroad Company, dated May 1st, 1869; also the second or "convertible mortgage as it is called, dated July 1st, 1871. It then alleges that the company made default under both mortgages May 1st, 1873; that the trustees named in the second mortgage resigned February 21st, 1874, and the petitioners, George H. Bishop and John N. Camp, were duly appointed and qualified as their successors; that they took possession of all the mortgaged property, including the freight depot building in Middletown, which is the subject of this controversy; that they made large pecuniary advances as trustees, incurred large pecuniary obligations, and were entitled to a large sum as compensation for their services, exceeding the sum of $2,000. It then alleges that Bishop and Camp applied to the respondents to insure said depot building, that they did insure it, that it was destroyed by fire during the lifetime of the policy, that due notice was given and

Bishop v. Clay Insurance Co.

proofs of loss furnished, that a suit was brought on the policy, and that the defendants, the present respondents, appeared and pleaded in defence that prior to the fire the depot building was sold or transferred, and the title and possession thereto and thereof changed, and the interest of the assured therein as such trustees terminated; and that after a trial resulting in a verdict for the assured, a new trial has recently been ordered on the ground that the defence is a sufficient answer at law under the terms of the policy.

It further alleges that on the 23d day of October, 1876, the Boston & New York Air Line Railroad Company paid to Bishop and Camp the full sum due to them in consequence of their doings and advances under the trust, and received from them a written assignment of their claim under the policy of insurance, with authority to prosecute and maintain all necessary suits.

The bill then refers to the ground on which the new trial was ordered the foreclosure of the first mortgage and a subsequent sale of the property to the Boston & New York Air Line Railroad Company-and then proceeds as follows: "But the petitioners say that it is contrary to equity and good conscience for the defendant to insist on said defences, because they say it was their intention and that of the defendant, at the time both of the negotiation and of the execution of said policy, that said policy should insure, and should be so expressed as to insure, the said George H. Bishop and John N. Camp and their executors, administrators and assigns upon their interest in said depot building to the extent of two thousand dollars, against loss by fire, for the purpose of securing them in case of fire to the extent of two thousand dollars for and upon their said pecuniary advances and claims for services and obligations assumed while in possession of said mortgaged property as trustees under said convertible mortgage; and that their said interest in and lien upon said building of the character aforesaid was not lessened or impaired, but on the contrary preserved and strengthened by said decree of foreclosure, and remained in full force and effect down to and at the time of said fire and of bringing said action at law."

VOL. XLVIX.-22