Skelly v. Bristol Savings Bank. Should the creditor within the time commence a suit and obtain a judgment, no defense being made, the maker might perhaps recover back the interest for the unexpired time; but that would be because the creditor had not performed what was incumbent on him and the consideration of the payment had failed to that extent. Fuller v. Little, 7 N. Hamp., 535. A payment of interest in advance furnishes a sufficient consideration for a contract to delay. Wheat v. Kendall, 6 N. Hamp., 504, 508. As a general rule then the reception of interest in advance upon a note is primâ facie evidence of a binding contract to forbear and delay the time of payment; and no suit can be commenced against the maker during the period for which the interest has thus been paid." These views were affirmed by the same court in Drew v. Towle, 30 N. Hamp., 531, and approved in The People's Bank v. Pearsons, 30 Vermont, 714. Other cases in various jurisdictions sustain the same doctrine. Wakefield Bank v. Truesdell, 55 Barb., 602; Robinson v. Miller, 2 Bush, 176; Preston v. Henning, 6 id., 556; Scott v. Saffold, 37 Geo., 384; Miles v. M'Lellan, 2 Nott & McCord, 133; Gardner v. Gardner, 23 S. Car., 593; Jarvis v. Hyatt, 43 Ind., 163; Abel v. Alexander, 45 id., 523; Woodburn v. Carter, 50 id., 376. The cases from Massachusetts and Maine hold that the reception of interest in advance is not of itself evidence of such a binding contract to extend the time of payment as to discharge a surety. Oxford Bank v. Lewis, 8 Pick., 458; Blackstone Bank v. Hill, 10 id., 129; Agricultural Bank v. Bishop, 6 Gray, 317; Crosby v. Wyatt, 23 Maine, 156. But these cases when examined with care are not inconsistent with the cases from New Hampshire and Vermont. In Oxford Bank v. Lewis, it is stated that the bank, even though it had taken interest in advance, had retained the right to sue at any time. In Blackstone Bank v. Hill, the statement is that the payments of interest in advance were made with the understanding that if the bank should want money the note might be collected before the expiration of the time for which the interest had been paid. These two cases are the authority for all later cases in that state and in Maine. In the very State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com. latest case from Massachusetts, Haydenville Savings Bank v. Parsons, 138 Mass., 53, the court holds upon the facts stated that the bank reserved the right to sue at any time on the note. With the reservation of the right to collect the note at any time these cases harmonize with all the other cases cited. After an examination of all the cases we are of opinion upon principle as well as upon authority that the taking of interest in advance on a note is, in the absence of any contrary agreement, prima facie evidence of an agreement to forbear collecting the note. There is error, and the judgment is reversed. In this opinion the other judges concurred. THE STATE EX REL. THE NEW YORK & NEW ENGLAND New Haven & Fairfield Cos., Jan. T., 1893. ANDREWS, C. J., CARPEN- The legislature created a commission to direct and control proceedings for the removal of a dangerous grade crossing in the city of Hartford, the parties being the city and two railroad companies. By the act the commission was to possess all the powers of the General Assembly in the matter, and were to direct by whom, when and how the work should be done, and what proportion of the entire expense of it, including land damages, each party, with a certain limitation as to the city, should pay. One of the railroad companies presented a claim for a large amount of expense and loss incidental to the change of its track, including the permanent loss of the use of a portion of its ground for railroad purposes, the whole of which claim the commission disallowed. In a suit for a mandamus, at the relation of the railroad company, to compel the commissioners to consider and act upon the claim, it was held 1. That the grant of power to the commission, subject only to the limitation mentioned, was plenary and in the most explicit terms, and that the duties to be performed were such as in the highest degree to call for the exercise of judgment and discretion. State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com. 2. That by the act the items which the commission was to consider were only those of the expense of the work, not of the speculative and incidental damages resulting from the change made. 3. That if the items claimed were such as the commission might consider and in its judgment allow, yet the legislature had left the matter to the sound judgment and discretion of the commission, and its conclusion, in the exercise of its judgment upon the claim, could not be reviewed. 4. That as it did not appear whether the commission disallowed the claim because it thought such a course fair and just to all parties, or because it regarded the claim as beyond its jurisdiction, it would be presumed that the former was the case. [Argued April 7th-decided May 4th, 1893.] APPLICATION for a writ of mandamus, brought to the Superior Court in New Haven County. The defendant moved that the application be quashed, which motion the court (Thayer, J.,) granted, and dismissed the application. Appeal by the plaintiff. In this court the defendant moved to strike the appeal from the docket on the ground that it would not lie from such a judgment. Motion heard and overruled, and the case argued on its merits. The case is fully stated in the opinion. T. E. Doolittle and W. L. Bennett, for the appellant. H. C. Robinson and W. F. Henney, for the appellee. FENN, J. The application to the Superior Court, for an alternative mandamus against the defendant, states that subsequent to the decision of this court in Woodruff v. New York & New England R. R. Co., 59 Conn., 63, and pending further litigation both in the federal and state courts, there was a conference between the representatives of the defendant, of the relator, whom we will call the plaintiff, and of the city of Hartford, which resulted in a compromise and arrangement of settlement, pursuant to which the surface tracks of the plaintiff's railroad, between the north line of Church street and Asylum street in Hartford, were taken up, and the plaintiff presented to the defendant commission a claim for damages for such removal, and for sundry other State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com. matters of damage to the plaintiff, incident to the general elevation of its tracks over Asylum street, and the changes necessarily consequent thereon; that the commission heard the plaintiff, allowed certain claims, and disallowed others as not arising in consequence of any order of the commission, concerning which disallowance no complaint is now made; and also, in reference to certain other items, disallowed them on the ground, as stated by the commission, "that the damages, if any, are not special to the New York & New England Railroad Company, to be taken account of as a part of the entire expense of the improvement, but such as are incidental to the carrying out of the design and instructions of the legislative acts creating and regulating this board, and for public safety, convenience and necessity." These items were as follows: "Land of the company taken for retaining wall, running north from Church street about 890 feet, and amounting to about 6,900 square feet. "Destruction of old station building on Spruce street, and loss of rentals received and receivable. therefrom,. "Cost of re-surfacing temporary tracks on each side of Asylum street, "Amount paid to administrator of John Connelly, who lost his life while employed by the company on work ordered by the commission, "Cost of extra switching freight and passenger trains, due to the interruption of the tracks in consequence of the work ordered by the commission, Salary of additional telegraph operators from June 1st, 1887, to June 30, 1889, "Cost of fitting up temporary office, made necessary by destruction of old station, $320.28; and rent of temporary office from Oct. 1st, 1887, to June 30th, 1889, $749.97 $15,600.00 $45,000.00 $1,224.71 $150.00 $6,792.40 $1,250.00 $1,070.25 State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com. "Cost of temporary station for use until elevated structure was completed, . "Additional cost of transporting baggage between the temporary stations of the two roads on each side of elevated structure, Difference between the value of the land between Church and Asylum streets, for the purpose it can now be used for, and its value for railroad purposes, as it could have been used prior to the removal of the tracks on Church street, "Impairment of value of yard north of Church street, consequent on changes incident to the work ordered by the commission, and to the removal of the tracks across Church street "Damage from interruption of use of territory between Asylum street and Walnut street from April, 1887, to the present time, $4,143.71 $1,305.00 $200.000.00 $100,000.00 $10,000.00" The application alleged that all of these disallowed items were for damages to the plaintiff, which the commission had power, under the legislative acts, to take account of as a part of the entire expense of the improvement, and that the commission ought to have inquired into the facts concerning such items, and, if maintained by proper proof, to have allowed them, but that they were disallowed on motion of counsel for the city of Hartford, without hearing evidence as to their merits, and for the reason before stated; and the application concludes with a motion that an alternative writ of mandamus issue, requiring the commission to inquire into the merits of these claims, and, if any such damages shall be found to be proved and justly due, to order their allowance and payment as a part of the entire expense of the Asylum street bridge improvement. The Superior Court having granted a rule to show cause, the defendant filed a motion to quash, presenting various legal issues, which it is not necessary to recite. The court found these issues for the defendant, and that the application was insufficient, and thereupon granted the motion and denied the application, and the plaintiff appealed to this court, which heard and |