Volume 10 — Connecticut Reports

A new trial having been granted in this cause, (9 Conn. Rep. 380 — 388.) it was tried again at New-London, September term, 1832, before Bissell, J. It was admitted, that Lodowick Bill was the deputy of the defendant; and that the plaintiff’s writ was put into his hands for service, as stated in the declaration.

This was an action of ejectment; tried at New-London, September term, 1832, before Bissell, J. The plaintiff claimed title, by virtue of the levy of an execution on the demanded premises, as the property of one John Chapman. James Smedley was the former owner ; and the plaintiff, to prove title in John Chapman, offered a deed, executed and delivered to him, by Ebenezer Learned, Esq., as the attorney of Smedley, dated the 10th of November, 1825.

This was an action of ejectment; tried, on the general issue, at Norwich, March term, 1833, before Williams, J. The plaintiff claimed title to the demanded premises, under Benjamin Brown, jun.; and in support of his claim, introduced Benjamin Brown, sen. as a witness, who testified to facts materially to the issue.

This was a bill in chancery, founded on a contract between the plaintiff and Azariah Bill, which was thus set forth in the bill: That on the 16th of April, 1823, it was agreed between them, that the plain tiff should support Bill and wife, in a comfortable and handsome manner, both in sickness and in health, during their natural lives ; and that the plaintiff should have the use and improvement of the farm, stock, and farming tools of said Bill, during his life ; and that at…

This was an action of trespass quare clausum fregit. The defendant, by his plea, admitted the plaintiff’s right, and justified under an entry in right of James LamphCre, the owner of an adjoining lot, who claimed a right of way over the land described in the plaintiff’s declaration ; which way, the defendant averred, was, by John H. Frink, granted to Lo-dowick Fosdick, under whom Lamphere claimed title, thirty-six feet in depth from Bank street, to pass and repass, at…

This was an action in favour of the indorsee of a promissory note against the maker. The note was for the sum of 955 dollars, 21 cents; was dated the 29th of October, 1827; and was payable to John Moore, or order, thirty days after date.

Tuis was a bill in chancery, stating, That on the 9th of April, 1832, and for a year before, &ephem C. Rutchinson and Luther Kinne were copartners in a small shop in the town of Griswold; that on the 9th, 14th and 19th days of April of that year, they possessed certain goods, of the value of 800 dollars, purchased by them of the plaintiff and of others whose debts the plaintiff has assumed; that on said 19th of April, J~L .1 Richards, one of the defendants, as guardian of…

This was an action of trespass de bonis asportatis ; tried at Brooklyn, January term, 1833, before Church, J. In October, 1830, Remmington, one of the plaintiffs, owning a farm in Plainfield, leased it to Perry, the other plaintiff, for one year, by an indenture, containing, among others, the following stipulations: That the farm was to be let and occupied, to the halves ; the parties to find the stock equally ; all kinds of articles raised on the farm to be divided, when…

This was a bill in chancery, the object of which was, to disencumber certain property mortgaged by Joseph Hawes sen. to Joseph Hawes jun., by a decree declaring the mortgage deed fraudulent and void, and thus to let in the plaintiff to redeem from other creditors, who had valid liens thereon, as if no such deed had been given.

This was an action brought by the plaintiffs, as indorsees of - a promissory note, made by the defendants and William Jill-son, since deceased, for 1500 dollars, dated the 10th of June, 1829, and payable to Charles Lee, or order, on demand, with interest; which note Lee, on the 3d of August, 1829, indorsed to the plaintiffs. The defendants pleaded a set-off of sundry debts due from Lee to them, and that Lee was insolvent.

This was an action of trespass quare clausum frágil, brought before Seth Dunham, Esq., a justice of the peace, demanding seven dollars damages. The defendant pleaded, 1st, Not guilty, on which issue was joined; 2ndly, a justification under a right of way, granted, by the General Assembly, to the Boston Turnpike Company. The special plea was traversed in part, on which issue was joined.

This was an action on a promissory note, made by Samuel Stebbins, deceased, in these words : “ Simsbury, January 7th, 1818. I promise to pay John Wood Pease, when he shall arrive at the age of twenty-one years, the sum of one thousand dollars ; value received.

This was an action of ejectment; tried at Hartford, February term,. 1833, before Daggett, Ch. J. Both parties claimed title to the premises under Barnabas Pease; the plaintiff, by the levy of an execution, on the 12th of December, 1829 ; the defendant, by a deed from Barnabas Pease to him, dated the 21st of October, 1828. The levy of the plaintiffs execution was admitted to be correct; and the controversy turned on the validity of the defendant’s prior deed.

IN ERROR. The original action was replevin, instituted by John B. Watson against John Watson and others, before a justice of the peace. The declaration contained four counts ; in the first of which the defendants were charged with having taken and unjustly impounded the beasts therein described, (a) In the other counts no distress or impounding was alleged.

This was an action of ejectment; tried at Hartford, September term, 1833, before Church, J. The plaintiffs claimed to have proved a title to the lands described in the declaration ; and that the… Held: that it is a present right of possession, and not a future estate, which is affected by the statute of limitations. If the defendant’s counsel are right, a feme covert will lose her title, by five years ad- - verse holding.

IN ERROR. This was an action of debt, brought by George A. Dwight, against Henry Lewis and Alanson Nash, on a bond, for 1500 dollars, dated the 4th of December 1829, demanding 2000 dollars in damages.

This was a bill in chancery ; the object of which was, to obtain from the defendant payment of certain expenses and charges incurred by and due to the plaintiffs, for the transportation of a quantity of coal and grindstones, pursuant to a contract between the plaintiffs and Collins & Co. The contract, dated the 1st of May, 1833, was set forth in the bill.

IN ERROR. This was a bill in chancery, brought by Solomon and Edward Whitman., to obtain from Lemuel Whitman, administrator of Lemira Whitman, deceased, a transfer of five shares of the capital stock of the Middlesex County Bank, standing in her name, on the books of that institution.

This was an action of indebitatus assumpsit for money had and received, with the other usual money counts.

This was an action on a promissory note for 500 dollars, dated the 17th day of April, 1832, and payable to the plaintiff within thirty days from date. The defendant pleaded Non assumpsit; on which issue was joined.

IN ERROR. This was a bill in chancery, brought originally to the county court, to obtain the legal title to certain real estate, on which the plaintiff had levied an execution. On the 1st of January, 1828, Constantine McMahon was indebted to the plaintiff in the sum of 209 dollars, for which he gave his promissory note, payable on demand, with interest. He was, at this time, largely indebted to other creditors and insolvent, and has ever since continued so to be.

This was an information against Henry Bailey, charging him with breaking and entering an out-house, in the town of Cornwall, wherein goods, wares and merchandize were deposited, in the night season, with an intention to commit theft therein.

IN ERROR. This was an action of trover for a steer, brought by Allen against Picket, and tried in the county court, on the general issue. Held: on the 5th of October, 1829, and had been duly qualified. The plaintiff, at the time of laying the tax, was, and ever since has been, an inhabitant of said town.

This was an information, in the nature of a quo war- ^ ap-orney for the state, against The Norwalk and Danbury Turnpike Company, alleging, That the defendants, on the 11th of November, 1831, without any warrant or grant whatsoever, did, with intent to take toll of persons travelling upon the great market road from Danbury to Saugatuck, usurp the franchise of erecting, and, under colour and pretext of such usurped franchise, did erect, a toll-gate and fence on and across said…

This was an action of account, brought by the plaintiff’, as administrator of Samuel Peck, deceased, against the defendant, as bailiff and receiver of said PecA from the 1st of April, 1827, to the 10th of March, 1829 ; alleging, that, during that period, said Peck occupied a farm of land in North-Castle, in the state of New-York, under a lease from the defendant, on certain terms, and that the defendant furnished less than his share of the seeds and received more than his…

This was an action of book debt against William H Holly, Simeon H. Minor, John Brown, Jonathan B. Water-bary, William S. Wood, William Hoyt, jr., Roswell Hoyt, and Lounsbury Balmer, demanding 350 dollars. William H. Holly and William S. Wood suffered judgment by default. The other defendants appeared and pleaded oxoe nothing.

This was an action of debt on book, commenced June 27th, 1833, returnable to the county court.

This was an action of assumpsit, stating, that on the 1st of February, 1825, Donald Baldwin died, leaving real estate of the value of 1000 dollars, being about 50 acres of land in Newtown ; that Philo Baldivin, as one of the heirs of Donald Baldvñn, was entitled to one fifth part of such estate, after payment of the debts of the deceased and the expenses of settling his estate ; that on the 19th of November, 1825, the right of Philo Baldwin in such estate was legally…

This was an action on a promissory note, made by the defendant. The suit was commenced on the 18th of May, 1832. Held: all the powers which the first-mentioned committee had, by virtue of their appointment in December, 1830, ceased on said first Wednesday of March, 1832; and consequently, they had no right to institute and prosecute this suit.

This was an action of account, declaring, that from the 1st of January, 1826, to the 1st of March, 1828, the defendants were the bailiffs of the plaintiff and receivers of his moneys ; averring particularly, that the defendants, on the 1st of July, 1827, received the money due on a policy of insurance belonging to the plaintiff against the Pacific Insurance Company, amounting to 5000 dollars, to satisfy the counsel fees of the defendants, and to render a reasonable account…

This was an action on the case, for obstructing a watercourse, which passed through the plaintiffs’ land, and propelled the wheels of a mill owned by them, by which they sustained damage.

This was a petition for a divorce, alleging-, that the respondent committed adultery with one Sherlock Avery and others unknown ; tried at New-Haven, January term, 1834, before Bis sell.

This was an action of trespass quare clausum fregit. Mary Wheeler, the plaintiff, was married to William Wheeler, in the year 1800 ; and continued to be his lawful wife until August, 1832, when she was, by a decree of the superior court, divorced from him, for his wilful absence for more than three years. In 1808, the land mentioned in the declaration was conveyed to her, and she became the lawful owner thereof in fee-simple.

IN ERROR. This was an appeal from the following decree of the court ,of probate for Neio-Haven district: “ It is found, by this court, since the order heretofore passed for a dividend among the creditors, that the following debts, mentioned in the commissioners’ report, viz. tire debts due to Jehial Forbes Son, to Ebenezer Seeley, to H. R. tj- S. R. Hotchkiss, and to Riley B. Beach, the whole amounting, as appears by the commissioners’ report, to the sum of 1816 dollars, 83…

IN ERROR. This was a bill in chancery to redeem mortgaged premises. Held: that the mortgage, in this case, not being followed by possession, was utterly void, and that it would be so, even against a volunteer: and in this view, it was clearly immaterial whether an assignee for the benefit of creditors, was to be deemed a bona fide purchaser or not.

This was an action on the case against the defendant, as sheriff of New-Haven county, alleging, that Grindley Harrison was indebted to the plaintiff; that a suit was brought against him, by writ of… Held: “ that they (i. e. the remainder-men) cannot take but by way of remainder, which cannot be joint, because of the word successive.

This was an action of indebitatus assumpsit. A concise statement of the declaration appears in 9 Conn. Rep. 358..

This was a bill in chancery for an account. Held: owned, and paid for, in the following proportions, viz. the Russells one quarter, each, and Green one half; that on the 1st of September, 1816, it was mutually agreed between these parties, that Green should ship this lumber to the city of New-York, and there dispose of it, and pay over the net avails thereof to the Russells, in…

This was an action of trespass de bonis asportatis and quare clausum fregit-, in distinct counts. To each of the counts the defendant pleaded a justification. The first plea, admitting the possession of the plaintiffs, and the taking, as charged, justified the same, by virtue of process, executed by the defendant, as sheriff, against the personal property of Timothy W. Baldwin.

This was an action on the case against the defendant, a constable of the town of Neic-London, for not delivering certain goods by him attached in a suit brought by the plaintiffs against Marvin Fargo ; alleging, that the plaintiffs obtained judgment and execution in such suit ; which execution was put into the hands of Barrel Lathrop, a deputy sheriff, who demanded of the defendant the goods so attached ; and that the defendant refused to deliver them, &c. The defendant…

This was an action of assumpsit against the defendant, as indorser of a promissory note, made by one Brockicay, payable at the Union Bank in Neto-London. The declaration alleged a demand of payment at that place, and notice of nonpayment to the defendant, in the usual form.

in error. This was an action on the case. The declaralion stated, that the plaintiff owned and possessed a lot of land, at the corner of Main and Court streets, in the city of New-London, with the first and second stories of the brick building thereon standing, and also the foundation and cellar underneath the same; that the defendant, at the same time, owned and possessed the third or upper story, and the roof of said building, directly over the parts thereof owned and…

This was an action of trespass, quare clausum fregit, alleging sundry acts of trespass, committed by the defendant, on the 15th of April, 1829, and on divers other days and times between that day and the day of the date of the writ.

This was an action of assumpsit to recover compensation for the erection of a bridge across the -Vhetnc'ret river in Frunk-lin. Held: that the overseers of the poor of a town in New- York, contracting as such ; (OIney v. Wicks, 18 Johns. Rep. 122.) a quarter-master-general of the army employing boatmen to work for the army ; ( Walker v. Swartwout, 12 Johns.

in error. This was an information, filed by the prosecuting attorney for the county of Windham, for a violation of the statute of 1833, regarding the instruction of coloured persons not inhabitants of this state.(a) The information alleged, That at Canterbury, in said county, on the 24th of September, 1833, for the purpose of attending and being taught and instructed in a certain school, which before that time had been and then was set up, in said town of Canterbury, for the…

This was an information for the crime of adultery. The information, consisting of a single count, alleged, that at Vol-untown, on the 23rd of January., 1834, Sybil Bates, then being the lawful wife of Silas Bates, feloniously suffered and permitted William Eldridge, to have carnal knowledge of her body, against the peace, &c. The prisoner pleaded Not guilty; and on that plea the cause was tried, at Brooklyn, January term, 1834.

This was an action of trespass; tried at Hartford, September term, 1834, before Williams, J. In the spring of the year, 1817, and before, Dudley Case was the owner in fee of a farm… Held: that the owner had only a reasonable time to remove it. A tenancy at will, or a license at will, is determined, by any act of the owner of the land evincing his desire to determine such an interest. Much more, then, will an action of ejectment and the levy of an execution have this effect.

This was an action on the case. The declaration stated, That on the 9th of April, 1822, the plaintiff was seised and possessed, in his own right in fee simple, of a moiety in common and undivided of certain clothier’s works, at Griswold’s Mills in Simsbury, consisting of land and water privileges, dye-house, fulling-mill, finishing shop, machinery, tools and apparatus, of the value of 1500 dollars, and mortgaged his said moiety of the premises, by mortgage deed, then…

IN ERROR. This was an action of assumpsit on a receipt of property taken on execution, given by Anson McLoud and Henry Gates, to William Selby, jun., the officer.

This was a bill in chancery for a discovery. The bill stated, That in the year 1828, a company was incorporated, by the name of th& Arrowmamet Manufacturing Company, with a capital not exceeding 150,000 dollars ; that the charter of incorporation.constituted the defendants, [Gad Cowles and Martin Cowles) with Luther Spalding, the first directors, and provided, that the stockholders should not be liable in their private capacity, for debts due from the company, provided that…

This was an action on a promissory note of the Hartford Brewing Company, made by Lorenzo Bull, their authorized agent, dated February 18th, 1832, payable to the plaintiff on demand. Held: that they were liable in the same manner as though there had been no incorporation.

This was an action on the case for obstructing the plaintiff in the exercise of a right claimed by him of passing the Southern gate on the defendants’ road, toll-free. The cause was tried at Litchfield, August term, 1834, before Daggett, Ch. J. The right claimed by the plaintiff depended on a contract entered into between the defendants, of the first part, and the plaintiff and others, of the other part, on the 10th of August, 1803.

This was an action upon the covenants of seisin and against incumbrances in a deed. Held: that he might recover ; that the plaintiff’s right of action was complete on receiving his deed ; and that the right was not assignable. 3. That there is no estoppel, in this case, to prevent the plaintiff’s recovery.

IN ERROR. This was an action of replevin, alleging, That the defendants, on the 27th of May, 1S33, at Canaan, from and off the land of the plaintiffs, with force and arms, took certain beasts particularly described, and them impounded and detained.

This was a scire-facias in a process of foreign attachment, stating, that the plaintiffs brought their action of book debt, by writ dated the 26th of September, 1831, to the county court of Litchfield county, holden on the 3rd Tuesday of December, 1831, against Robert Hine, an absent and abscond- - ing debtor, and so described ; that a true and attested copy was left with Frederick Holcomb, (the present defendant,) attorney and debtor to said Hine ; that in April, 1832, the…

This was an action of ejectment. On the 8th of June, 1789, David Boland, of Sharon, in this state, made his last will and testament, legally executed to pass the title to real estate, containing, among other provisions, a clause in the following words: “ Item.

This was an action of assault and battery. The defendant pleaded the general issue, with notice that under it he should offer evidence to prove, that the plaintiff, at the time of the alleged injury, was a minor, thirteen or fourteen years of age, and was the servant of the defendant in the trade and business of manufacturing clocks; that the plaintiff conducted himself insolently towards the defendant, and refused to obey his lawful commands relative to his duty as such…

IN ERROR. This was an information qui tam, brought before the coun. ty court, by Warner and Langdon against Aloah Merriam, alleging, That on the 16th of May, 1832, the complainants, by virtue of a certain statute law of this state, entitled “ An act to suppress Pedlars.

This was an action of debt on book ; tried at Danbury, September term, 1834, before Daggett, Ch. J. On the trial it appeared, that the… Held: that nothing had happened to alter the situation of the parties in respect of the plaintiffs’ original remedy on the covenant: a judgment on the simple contract did not bar a subsequent action on the covenant. after remarking that Holly, who gave the note, and against whom the judgment was recovered, having been defaulted, thereby…

This was an action on a promissory note of the following’ tenor: “ New Canaan, November 8th, 1833.

This was an action of book debt. By the writ, which was dated the 4th of February, 1835, the defendants were required “ to appear before the county court,… Held: commencing on the third Tuesday of March, 1835 ; and said writ and process were made returnable to said adjourned term, and returned to the clerk of said court, on the second day of said adjourned term, at the opening of said court; and by leave of said court, said suit was then entered in the docket of said court.

This was an action of indebitatus assumpsit for money had and received. On the 31st of October, 1765, Enos Ailing, by deed of that date, conveyed to the ecclesiastical society, then and ever since incorporated and known, by the name of the society of Trinity Church in New-Haven, a tract or parcel of land in New-Haven, upon the corner of Chapel and Church streets.

This was an action of assumpsit for money lent and advanced ; for money paid, laid out and expended; for money had and received, &c. The cause was tried, at New-Haven, August term, 1834, before Daggett, Ch. J. The plaintiff, during the year 1832, until the 12th of July, when he failed, and assigned his property for the benefit of his creditors, was transacting business in Neto- York, under the name of Wm.

This was an action of assault and battery and false imprisonment. The defendants pleaded the general issue, with notice of special matter to be given in evidence.

rI, ■ r . ,, . I his was an action or assumpsit to recover tolls tor passing the turnpike gate of the plaintiffs, on their road, with a mail stage, from the 1st of July, 1829, to the 2d of August,… Held: that a legislative grant of lands vested an indefeasible and irrevocable title. All the authorities adopt the same test. 3 Story’s Com. 241. 242.257. 258. 4 Wheat. 510. 1 Kents Com. 389.

This was a scire-facias against the defendants, as debtors to John L. Lewis, an absconding debtor; to which the general issue was pleaded. The cause was tried at New-Uaven, January term, 1835, before Church, J. No question was made on the trial, but that the previous proceedings were proper to charge the defendants, if they were the debtors of Lewis, on the 23rd of November, 1830, when the copies were left with them in service.

IN ERROR. This was an action of book debt, brought by Nathaniel Cook, administrator of the estate of Stephen Mix, deceased) against Mindwell Mix. The writ was dated the 12th day of June, 1833, and required the defendant “to appear before the county court to be holden at New-Haven, on the fourth Tuesday of June next.” At the county court held on the fourth Tuesday of June 1833, the plaintiff recovered judgment by default.

In the report of this case, ante 436 to 444. it is erroneously stated, that the other Judges (except Judge Church) concurred in the opinion delivered by Judge Huntington. Ch. J. Williams dissented on one point, for the following reasons.