Aborn v. Rathbone.

any intention on part of the plaintiff by giving such receipt to aid the defendant in defrauding his creditors, then the receipt is void, and the plaintiff can recover the unpaid balance of his account. Giving a receipt in full for a debt operates to defeat any further claim for the debt, unless the receipt is obtained under such circumstances of mistake, accident, surprise or fraud as would authorize a court of equity to set it aside. If the receipt was given by Aborn to enable Rathbone to defraud his other creditors, then Aborn was participating in the attempt to defraud, and has no right to set up fraud in his own behalf to make the receipt inoperative against himself."

We think the plaintiff has no ground for complaint against this charge. The general principle laid down with regard to receipts in full, has long been the settled law of this state, whatever it may be elsewhere. The receipt in this case, unless impeached for fraud or mistake, was valid, and discharged the whole debt, though given for a payment that was in itself but a part of the entire debt.

And while the receipt, if obtained of the plaintiff by fraud, would be of no validity against him, yet where it was given, as the jury must have found it to have been, as a part of a scheme for enabling the defendant to defraud his other creditors, it is equally well settled law that the plaintiff can not avail himself of that very fraud to set the receipt aside. No principle is better settled than that a man can never set up his own fraud for his own benefit.

The judge told the jury that if the plaintiff had this fraudulent intent in giving the receipt, yet if the defendant had no such fraudulent purpose and it was wholly a false representation to the plaintiff and a fraud upon him, the receipt was invalidated by the defendant's fraud, and the plaintiff could recover. This part of the charge being in the plaintiff's favor, of course he does not complain of it and we need not consider it.

There is no error in the judgment complained of.

In this opinion the other judges concurred.

Grissell v. Housatonic R. R. Co.

JACOB GRISSELL vs. THE HOUSATONIC RAILROAD COMPANY.

Hartford District, Oct. T., 1886. PARK, C. J., Carpenter, Pardee, LOOMIS AND GRANGER, Js.

The act of 1881 (Session Laws, ch. 92,) provides that where any injury is done to "a building or other property" by a fire communicated by the locomotive of a railroad, without contributory negligence on the part of the owner of the property, the railroad company shall be responsible in damages; and that every railroad company shall have an insurable interest in the property for which it may be so held responsible and may procure insurance thereon. Held

1. That the act was not unconstitutional and invalid, either (1) as denying to railroad corporations the equal protection of the laws, in making them liable for the consequences of a lawful act without negligence on their part, or (2) as taking away their property without due process of law in depriving them of a legal defense, or (3) as impairing the rights given them by their charters, which authorize the use of fire in operating their locomotives and require them to run their trains, for the unavoidable consequences of which they are made liable.

2. That the statute, under the expression "buildings or other property," includes fences and forest trees.

It is not necessary that the property should be such as is ordinarily regarded as insurable. The statute creates an insurable interest, which is independent of the question whether an insurer could be found to take the risk.

The statute is valid in its application to railroad companies which had taken the land for their road and paid the assessed damages before the act was passed.

This is especially so where the charter of such a railroad company contains a provision that it may be altered at the pleasure of the General Assembly and that it shall be subject to all general laws that may be enacted.

[Argued October 7th-decided December 23d, 1886. |

ACTION for the destruction of fences and trees upon the land of the plaintiff near the railroad of the defendant company by fire communicated by the locomotive of the defendants; brought before a justice of the peace, and, by appeal, to the Court of Common Pleas of Litchfield County, and tried to the jury before Warner, J.

Grissell v. Housatonic R. R. Co.

The action was founded upon the following statute, enacted in 1881:

"Where any injury is done to a building or other property of any person or corporation, by fire communicated by a locomotive engine of any railroad corporation, without contributory negligence on the part of the person or corporation entitled to the care and possession of the property injured, the said railroad corporation shall be held responsible in damages to the extent of such injury, to the person or corporation so injured; and any railroad corporation shall have an insurable interest in the property for which it may be so held responsible in damages, along its route, and may procure insurance thereon in its own behalf."

On the trial the plaintiff offered evidence to prove that on the 16th day of April, 1885, between the hours of eleven and twelve in the forenoon, the defendant was running a locomotive engine with a train of cars attached thereto in a northerly direction, along the side of the plaintiff's land, which lies on the easterly side of the defendant's layout; that very soon after the train had passed a smoke and fire. were seen by witnesses, on the easterly side of the defendant's track, and that traces of the fire were visible from the track to and upon the land of the plaintiff and land of one Gaylord; that no smoke or fire were seen in that vicin ity prior to the passage of the train, although the witnesses were in a position to have seen the same if any existed; that at that time there was a high wind blowing from a northwesterly direction; and that the fire progressed with great rapidity and burned the plaintiff's fences, growing trees and herbage. No witness testified that he saw the spark of fire come from the locomotive which set the fire.

The plaintiff also offered evidence to prove that he did not contribute to the injury, and that he was not negligent in the care of his property, and did not expose it to fire from locomotive engines. He also offered evidence to prove the damage done to his fences, growing timber and herbage by the fire.

To this last evidence the defendant objected, on the

Grissell v. Housatonic R. R. Co.

ground, 1st, that there had been no proof of negligence on the part of the defendant; and 2d, that the plaintiff could not recover under the provisions of the act of 1881, until he should prove that the defendant had, or could have, an insurable interest in the property injured by the fire, and that the burden of such proof was on the plaintiff. The court overruled the objection and admitted the evidence, and the defendant excepted.

The defendant called one Todd as a witness, who testified that he was a fire insurance agent, and had been for the last eighteen years, and that he did not know of any insurance company that insured growing trees and herbage or fences against fire. This evidence was objected to by the plaintiff, but was heard by the agreement of the parties, subject to the ruling of the court in its charge to the jury.

The defendant requested the court to charge the jury that there was no evidence to prove that the defendant was guilty of any negligence, and as there was no other evidence that the fire was communicated from the defendant's locomotive, the plaintiff could not recover; also that the act of 1881 was unconstitutional and void, as it interfered with the charter rights, contracts and duties of the defendant.

The court did not charge the jury as requested, but instructed them as follows:

"It is your duty to determine from all the evidence adduced and the circumstances connected with the occurrence of the fire, whether the fire which injured the plaintiff's property proceeded from the defendant's locomotive, or from some other cause. The defendant is not correct in his claim that the statute of 1881 is unconstitutional and void. I instruct you that if you find that the locomotive of the defendant communicated the fire to the land of the plaintiff, either directly or to the land of Mr. Gaylord and from thence it ran on to the land of the plaintiff, and did him the injury of which he complains, and you also find that the plaintiff in no wise contributed to that injury, then your verdict should be for the plaintiff. But this must be proved affirmatively by the plaintiff and by a fair preponderance of evidence on VOL. LIV-29

Grissell v. Housatonic R. R. Co.

his part. You must be satisfied from the evidence that the defendant's locomotive communicated the fire that did the injury to the plaintiff, and that he did not contribute to it. It was not incumbent upon the plaintiff to prove that the property which was injured by the fire could have been insured by the defendant. The testimony of Mr. Todd, which was offered to prove that there was no insurance company that could or would insure such property against fire, was not admissible, and is to have no influence on your minds. You will reject it. If you find that the fire that injured the property of the plaintiff did not come from the locomotive of the defendant, then your verdict must be for the defendant. Or if you find that the fire came from the locomotive and you also find that the plaintiff contributed to its spread and extension, then your verdict should be for the defendant."

The jury returned a verdict for the plaintiff, and the defendant appealed to this court, on the ground of error in the charge of the court and in its ruling upon the evidence offered.

M. W. Seymour, with whom was H. H. Knapp, for the appellant.

First. The first question to be considered arises upon the construction of the statute itself. Are "fences," "growing trees" and "herbage" (the only property proved to have been injured) "other property," within the meaning of the statute of 1881? The word "property," HINMAN, C. J., in Stanton v. Lewis, 26 Conn., 449, says, "of course must include everything that is the subject of ownership." Literally, therefore, "other property " includes franchises, easements, incorporeal hereditaments, and other things incapable of being either insured or destroyed by fire. Clearly, it seems to us, the legislature intended no such sweeping change in our law. Again, that principle of interpretation denominated noscitur a sociis, requires the meaning of the words "other property" to be limited to the property of the same general character as "buildings." 2 Parsons on Con