Hitchcock v. Holmes.

pelled to say that the detention by the plaintiff from his creditors of the sum invested in this one mirror is contrary to the spirit of the exemption, especially as the record does not disclose the number of mirrors left for the use of his family.

The record speaks of the clock as of the value of $50. Clocks, marking time with sufficient accuracy for the ordinary purposes of the household, can be obtained for a comparatively small sum of money. The law intends that the debtor, when withholding money from his creditor for furniture, shall supply each class of his necessities and secure his comfort and convenience by expending money in a reasonably economical manner, looking solely to utility. If we depart from this rule it will be impossible to establish any other. The expenditure of one hundred dollars for a clock, for use merely, can be justified as well as the expenditure of fifty; and notwithstanding the fact that the plaintiff had no other clock, we say that in this form he retained money beyond the demands of utility, or convenience, or comfort, and therefore places himself beyond the spirit of the exemption. While in form asking for conveniences, he is in fact securing ornaments; and in this, is wresting a beneficent statute from its purpose.

Upon the second point, the record shows that the defendant, having the writ in his possession, proceeded to the plaintiff's house and rang the bell; the servant opened the door; the defendant asked first for the plaintiff and then for his wife; both were absent; the servant told him that the wife's mother was within and asked if he would like to see her; he replied that he would, and entered, and when within attached the furniture in question. Upon these facts we are of opinion that this entry was lawfully made. The plaintiff's servant opened the door; the officer remained outside until invited to enter; he was under no legal obligation, unasked, either to disclose the reason why he wished to enter and see some one of the inmates, or to decline the offer of admission voluntarily made. If, upon knocking at the door, the occupant from within had bidden him to enter, he might have opened the door and entered without giving notice that he intended to serve process; if he had found the door open he might have.

Hitchcock v. Holmes.

entered without summoning the master of the house to hear a declaration as to his intention. The entry having been made without force, peaceably and even permissively, was quite within the demands of the law concerning the service of process.

There should be a new trial.

In this opinion PARK, C. J., and CARPENTER and FOSTER, JS., concurred.

LOOMIS, J. One clock or time piece is clearly a necessary article, and is within the exemption of the statute as much as if specified by name; only, if so specified, there might be no room, by construction, to deprive the article of its exemption on account of its value. If a thing really belongs to the class of useful and necessary articles, as distinguished from those of mere luxury and ornament, it seems hardly consonant with the liberal construction hitherto given to the statute to deprive a person wholly of all the benefit of the act, merely because his taste, or perhaps some fortunate purchase, or the gift of some friend, has enabled him to own a single article of necessity, which, at the same time, has more beauty and value than is required to serve the rigid purpose of mere utility. If the case had disclosed any great extravagance in this investment beyond the debtor's degree and station in life, or any purpose on his part to sequester money from his creditors under the form of an article of necessity, it would doubtless have led me to a different conclusion; but the facts as found negate both suppositions. The same principles of construction which led the majority of the court to the conclusion that the clock in question was not exempt, would, it seems to me, enable a creditor to take away by attachment his debtor's only coat, or his only bed and blankets, provided they were worth considerably more than would be required to purchase comfortable articles of the kind.

Wearing apparel, beds and bedding, are exempt (if at all) by force of the same words in the statute as apply to household furniture.

State er rel. Willoughby v. Gates.

I concur in the opinion of the majority with the above exception, and in the result.

STATE OF CONNECTICUT, AT THE RELATION OF ALVIN L. WILLOUGHBY, vs. BENJAMIN W. GATES.

Votes cast at an election for A. J. W., may be shown to have been intended for A. L. W.

The fact that A. L. W. was a candidate, and received a large number of votes, and that no person of the name of A. J. W., or of the same first and last names without the middle initial, resided within the district, would be satisfactory evidence to show that the votes must have been intended for A. L. W. Such inquiry made by the court, and such votes counted for the person for whom they were intended, in determining, upon an information in the nature of a quo warranto, the rights of respective claimants to an office to which they claimed to have been elected.

Such an inquiry involves no violation of the secrecy of the ballot, and there is nothing in the policy of the law which forbids it.

INFORMATION in the nature of a writ of quo warranto; brought to the Superior Court in New Haven County.

The information alleged that the relator, on the 1st day of October, 1875, was a freeman and elector of the state and a resident and voter of the fourth ward of the city of New Haven, and that at an election of councilmen held in that city on that day he was legally elected a councilman of that ward, to hold the office from the first day of January, 1876, to the 1st day of January, 1877, and accepted the office, and on the 1st day of January, 1876, claimed, and had ever since claimed to be admitted into the common council of the city as a lawful member, but that the defendant on that day without right usurped and had ever since usurped the office, and had taken and enjoyed all its privileges, to the exclusion of the relator and to his damage and against the peace.

To this information the defendant pleaded that he was himself at the election in question legally elected to the office in question, and was duly declared to be so elected, and that

State ex rel. Willoughby v. Gates.

the relator was not elected to the office, and that he had taken and was exercising the office by right and not by usurp ation. Other allegations of the plea appear by recital in the replication.

To this plea the Attorney for the State filed the following replication:

That for anything above alleged by the defendant the State ought not to be barred from having said information against the defendant, because said Attorney saith that true it is that at the time of the annual meeting of said city, holden on said first Monday of October, 1875, the defendant was, and for more than five years next prior thereto had been, a freeman of said city, resident in said ward; that the voting in said ward was duly held at the store of S. V. Taft in said ward; that Charles B. Foote was duly appointed and acted as presiding officer at said ward meeting; that the ballot boxes were duly kept open for the reception of votes in said ward from the hour of six o'clock in the forenoon until the hour of five o'clock in the afternoon of said day, when they were closed; that the ballots therein were duly and publicly counted, and that of said ballots, by said official count, Adam Miller was duly found and declared to have received four hundred and ten, and Edward Wines was duly found to have received three hundred and ninety-three, that said Benjamin W. Gates was duly found to have received three hundred and eighty-five, that said relator was found to have received three hundred and eighty-three, that Thomas Wallace, Jr., was found to have received three hundred and seventy-four, that Franklin S. Bradley was found to have received three hundred and seventytwo, that Alvin J. Willoughby was found to have received thirty-five, and that Thomas Wallace was found to have received eighteen; that thereupon the said result of said election was duly declared and certified to the meeting of freemen of said city held in the first ward thereof, whereof, and of the said city meeting holden on said day, John F. Comstock was duly appointed and acted as moderator and presiding officer; that thereupon said Comstock, as said moderator and before the adjournment thereof, in open meeting publicly declared

State ex rel. Willoughby v. Gates.

that Adam Miller, Benjamin W. Gates, and Edward Wines had been on that day duly elected councilmen of said city from said ward for the said next ensuing municipal year; and that thereupon said city meeting was duly adjourned without day and due return of said election made by said presiding officer to the clerk of said city under his hand. Also that true it is that the defendant was duly notified by the city sheriff to attend the first meeting of the council of said city at the opening of said municipal year, and did attend the same and was duly sworn, and accepted said office of councilman, and hath ever since acted as such councilman by virtue of said election. But said Attorney further saith that the said thirty-five ballots cast as aforesaid at said meeting for Alvin J. Willoughby were intended by the freemen who cast said ballots to be cast for said relator, and said ballots so cast were cast for said relator Alvin L. Willoughby by the name of Alvin J. Willoughby, and ought in truth and right to have been counted for said relator; and so said Attorney says that the said Benjamin W. Gates was not elected to the office of councilman of said city of New Haven from the aforesaid ward for the term aforesaid as in the said plea is supposed; and this said Attorney is ready to verify; wherefore &c.

To this replication the defendant demurred, and the case was reserved upon the pleadings for the advice of this court.

S. E. Baldwin and T. H. Russell, in support of the demurrer.

1. The statute required the "names" of the persons voted for to be "written or printed" on the ballots. Alvin J. Willoughby is not the name of Alvin L. Willoughby. Non constat but there is an Alvin J. Willoughby residing in the ward in question; the contrary is not alleged, and cannot be presumed. Assume that there was an Alvin J. Willoughby, as well as an Alvin L. Willoughby, can the intention of those who voted for Alvin J. to vote for Alvin L., or their voting for Alvin L."by the name of Alvin J. Willoughby," avail to override the statute, which requires the ballots to show the actual name of the party voted for? The middle initial is an