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Batters v. Dunning.

“ The county commissioners of each county shall, upon the recommendation of the selectmen of the town in which such business is to be carried on, license, by a writing signed by them, suitable persons to sell or exchange intoxicating liquors in suitable places in said county; but before any person shall receive a license he shall file with said commissioners a joint and several bond to said county in the sum of one thousand dollars, with sufficient surety, conditioned for the due observance of all laws relating to intoxicating liquors."

If it had been the intention to exclude the exercise of discretion on the part of the commissioners, it would have been easy to do so by simply requiring them to grant licenses to all persons recommended by the selectmen, with the proviso as to the bond. But the statute proceeds to characterize by a general qualifying word the persons to be licensed and the places of business. Both the person and the place must be “suitable.” This word is not defined by the law so that its application can be determined as mere matter of eye-sight, but it is left necessarily to be determined solely by the judgment of the commissioners based upon inquiry and information. And that the particular manner of exercising such judgment cannot be controlled by any court is too obvious to require the citation of any authorities.

We advise the Superior Court that the application for a mandamus in this case should be denied.

In this opinion the other judges concurred.

Hale v. Morse.

FRANCIS M. HALE V8. ALBERT MORSE AND ANOTHER.

A payment of a part of a debt accompanied by acts or declarations showing

that the debtor does not intend to pay more, will not revive the unpaid balance of the debt if it is barred by the statute of limitations, nor arrest the running of the statute if it is not barred.

ASSUMPSIT, brought by appeal from a justice of the peace to the Superior Court in Litchfield County, and reserved, upon the demurrer of Treadway, one of the defendants, who alone made defence, to the surrejoinder of the plaintiff, for the advice of this court.

G. A. Hickox, in support of the demurrer.

H. B. Graves and H. H. Prescott, contra.

PARDEE, J. In December, 1871, the defendants, Morse and Treadway, partners, executed and delivered to the plaintiff a note payable to his order at bank two months from date for thirty-five dollars. Neither payment nor subsequent promise to pay was made by either debtor, except that in August, 1876, Morse paid ten dollars upon it. Of this payment the defendant Treadway, who alone defends, says in a rejoinder that Morse made said payment, “intending, after having paid a certain proportion of the amount due by said note, to claim a full discharge from all liability upon said note; that the plaintiff assented to said claim and agreed with said Morse not to hold him to any further liability upon said note, or to make any further claim upon him for the balance left unpaid upon said note.” The plaintiff in his surrejoinder says that the agreement between himself and Morse concerning this payment was " that if Morse made said payment upon said note, he the plaintiff would not levy execution or collect the balance due upon said note against said Morse, but that the plaintiff should collect the balance due on said note of said Tread.

VOL. XLIX-61.

Hale v. Morse.

way; and the plaintiff says that he has not discharged said Morse or agreed to discharge him from payment of said note except as herein set forth,” &c.

Upon the plaintiff's pleadings Morse came to him speaking for himself alone-in his own behalf only. He explicitly limited his payment to ten dollars; he refrained from making any promise to pay more; and beyond that he required from the plaintiff an agreement not to force him to pay more; thus barring out the inference which might have been drawn from the act of payment unexplained. A payment accompanied by acts or declarations showing that the debtor does not intend to pay more, will not revive the unpaid balance of a debt upon which the statute of limitations has taken effect; and a payment or promise which would not suffice to recall a dead debt to life will not prolong the life of an existing one. This payment thus limited to ten dollars would have had no effect beyond that sum upon a barred debt; the rights and liabilities of the respective parties would have remained unchanged; the creditor would have gained ten dollars from a voluntary act of the debtor, nothing more; and that is the precise measure of the gain to the plaintiff by the payment in question. It did not prolong the life of the debt against either of the debtors; for even if his desire had been otherwise, the payment by Morse reached no farther as against his partner than as against himself; his limitations secured equal protection to both.

The Superior Court is advised to render judgment for the defendant.

In this opinion the other judges concurred.

Bixby v. Parsons.

49 483 61 262

FREDERICK N. BIXBY v8. WARREN M. PARSONS.

Whenever a party seeks to recover on a contract which he has broken, the

defendant may recoup the damages he has sustained by reason of the

breach. The defendant hired A to work for him at certain monthly wages, living

in his family. While in the service he seduced the defendant's daughter and got her with child. Held that in a suit for the wages the defendant

could recoup damages for the seduction. In such a contract for service there is an irnplied agreement on the part of

the servant that he will do nothing injurious to his employer's interests

and that he will be guilty of no criminal misconduct. An assignee of a claim, who has paid no consideration for it but seeks to

recover for the benefit of the assignor, can not maintain a suit upon it in his own name under the statute, Gen. Statutes, p. 417, sec. 6.

CIVIL ACTION to recover for work done as a laborer; brought, by appeal from a justice of the peace, to the District Court of Litchfield County.

The declaration alleged that the defendant, on the 23d of January, 1880, was indebted to one George H. Bixby for work performed by him of the agreed value of forty-four dollars and fifty cents, (the bill of particulars stating that it was a balance due for work up to that date at $12.50 per month,) that on the 14th of July, 1880, the said George H. Bixby by a writing assigned the debt to the plaintiff, and that the latter was now the actual bonâ fide owner of the claim, and that it had never been paid, demanding fifty dollars damages.

The defendant filed the following answer :-“1st. That he has an equitable defence against the claim set up in the complaint of the plaintiff, and in the bill of particulars filed by him, to wit, that George H. Bixby, who is the son of the plaintiff, who the plaintiff claims assigned to him the amount of said bill of particulars, was at the time of said assignment justly indebted to the defendant in the sum of one thousand dollars, for that on or about the thirteenth day of December, 1879, the said George H. Bixby seduced the servant of the defendant, being his minor child and

Bixby v. Parsons.

daughter and then in his service, and got her with child, for which act said Bixby is now imprisoned in the common jail of Middlesex County, by judgment of court on a criminal charge; and the defendant says that he was thereby deprived of the services of his said daughter of the value of two hundred dollars, and put to great expense for medical treatment, nursing and care, to the amount of one hundred dollars, and was injured in his feelings and in the good name of his family.—2d. That said George H. Bixby well knew this at the time he made the assignment claimed. -3d. That said assignment was made to avoid payment of damages for said wrongful act.—4th. That said George H. Bixby has never paid said damages or any part of them.5th. That the plaintiff knew these facts at the time he took said claim.—6th. That the plaintiff never gave any valuable consideration for said claim.—7th. That the plaintiff is seeking to recover the amount of said bill of particulars for the benefit of said George H. Bixby.

The plaintiff demurred to this answer, and the court (Fyler, J.,) held it insufficient. The case was tried at a later term to the jury and a verdict rendered for the plaintiff. The defendant brought the record before this court by a motion in error as well as by a motion for a new trial for error in the rulings and charge of the court upon the trial to the jury, but the questions made upon the latter motion are not stated, as the case was considered by this court wholly upon the motion in error.

C. Lounsbury and H. P. Lawrence, for the plaintiff in

error.

1. The criminal misconduct of a hired servant during his term of service, whether it is immediately injurious to his employer or not, is a good and sufficient cause of dismissal. Callo v. Brouncker, 4 Car. & P., 518; Lomax v. Arding, 10 Exch., 734; Wise v. Wilson, 1 Car. & Kir., 662; Kearney v. Holmes, 6 Louis. Ann., 373. A servant dismissed for criminal misconduct or other sufficient cause is not entitled to any wages even for the time he has served. Atkin v.

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