Volume 13 — Connecticut Reports

This was an action of ejectment; tried at Middletown, _ , , „ J rr . term, lado, before Huntington, J. On j.jie p]a¡ntjff; jn proof of his title to the demanded premises, offered in evidence an execution duly issued upon a judgment in his favour against the defendant, recovered before the superior court, on the first Tuesday of September, 1836, for the sum of 4187 dollars, 16 cents, damages, and 36 dollars, 17 cents, costs of suit, and the return of the officer thereon.

This was a bilí in chancery, in which the plaintiffs, claiming as heirs at law of Nancy Spencer, deceased, averred, that she, during her life, had caused to be attached and set off upon execution in her favour against The Smith Manufacturing Company, certain real estate situated in East-Haddam, with a stone manufactory upon it, the legal title in which was outstanding in the defendant, and praying that it might be vested in them, as they had the legal title.

This was an action of ejectment; tried at New-London, September term, 1837, before Waite, J. The plaintiff claimed title to the demanded premises, by virtue of a deed from John Denison to him, dated April 26th, 1811, and two deeds from John Denison 2nd to John Deni-son, jun., one dated February 26th, 1793, and the other, October 14th, 1802 ; a deed from Elihu Cheesborough to Edward Denison, dated August 7th, 1753; the distribution of Edward Denison's estate, made in…

This was an action of assumpsit, founded on a written guaranty signed by the defendant. The declaration contained three counts ; in the first and third of which the guaranty was recited. The cause was tried at Norwich, March term, 1838, before Huntington, J. On the trial, the plaintiffs abandoned the second count. In support of the first and third counts, the plaintiffs produced and read in evidence a writing in these terms : “ New-London, April 14lh, 1832. Messrs.

This was a bill in chancery for an injunction and security. Joseph Chadwick, late of Lyme, in this State, by his last will and testament; executed on the 14th of February, 1821, devised and bequeathed to his wife, Phebe Chadwick, the defendant, the use and improvement of two third parts of all his real and personal estate, which he might leave at his decease, after paying his debts, charges, &c., to have and to hold the same during the time she should remain unmarried after…

This was an action of ejectment for a tract of land in the town of Windham. The cause was tried at Brooklyn, August term, 1837, before Bissell, J. The plaintiff claimed title to the demanded premises, by virtue of the levy of an alias execution in his favour against Gurdon Huntington, formerly the undisputed owner.

This was an action of replevin, to obtain the restoration of a parcel of leather, which had been attached, by the defendant, as the property of Dorrance & Graves, to secure the payment of a debt due to him from Graves.

This was an action of tresspass quare clausum fregit ; tried at Tolland, April terra, 1838, before Waite, J. On the trial, the plaintiff introduced a witness, who testified, that, in Avgust, 1836, the defendant entered upon the plaintiff’s farm described in the declaration, and then in his possession, and reaped about six acres of rye standing thereon ; that the farm had been occupied, by the defendant, from the Spring of 1834 to the Spring of 1836 ; and that the rye reaped…

This was an aclion on a covenant, by indenture, entered into, between the plaintiff, on the one part, and the defendants, on the other, on the 24th of July, 1818.

This was an action of ejectment for three separate parcels of ¡and in Bristol; tried at Hartford, September term, 1838, before Bissell, J. The plaintiff claimed title to the demanded premises, by virtue of the levy of an execution thereon, issued upon a judgment of the superior court, February term, 1823, in favour of the administrators of Abel Lewis, deceased, against the defendant ; by virtue of a quit-claim deed from the defendant to said administrators; by virtue of a…

This was an action of ejectment; tried at Hartford, September term, 183?, before Bissell, J. In the life-time of Ann Watson, and until her death, the demanded premises were owned by her in fee; and the plaintiffs are her children and heirs at law, by John Watson, to whom she was lawfully married, and who is still living.

in error. This was a petition for a mandamus to Hiram Rider, esq., treasurer of the state of Connecticut, requiring him to pay over to the petitioners one seventh part of certain moneys^ received by him in his official capacity.

This was a scire-f acias in a process of foreign attachment against The Farmers and Mechanics Bank, as the of E. M. Morgan Co., absent and absconding debtors.

error. In September, 1836, The Hartford and New-Haven Railroad Company made an application in writing to the superior court in Hartford county, stating, That the General Assembly of this state, in May, 1833, granted them an act of incorporation, empowering them to locate and construct a rail-road from some suitable point in Hartford to the city of New-Haven ; and for that purpose to enter upon, take, purchase and hold such real estate as might be necessary and convenient…

This was a writ of habeas corpus, brought by George Pratt against Gilbert Allen, returnable to Ch. J. Williams, and by him submitted to this court for their advice. | Pratt was arrested by Allen, claiming to be and acting as ; sheriff of the county of Hartford, by virtue of an execution, ¡duly issued and directed to the sheriff of that county; and it j was admitted, that Pratt was legally held in custody, if Allen I was sheriff of the county.

in error. Upon a former writ of error between the same parties, the judgment of the county court was reversed, upon the ground that the statute law relative to the laying-out of highways, required, that on the report of a committee finding the road to be of common convenience and necessity, the court must adopt or reject the entire road as reported, and could not adopt a part and reject the residue.

error. This was an action of trespass quare clausum fregit, brought originally by Chauncey Baldwin against Leonard Tucker and three other persons, before a justice of the peace, and appealed to the county court.

error. This was a bill in chancery, brought by Daniel Botsford, as executor of Moses Botsford, deceased, against Lemuel Beers and others, to obtain the legal title to real estate. The case came before this court, on a demurrer to the bill, June term, 1836; when the demurrer was over-ruled. 11 Conn. Rep. 369 — 375.

This was an action of slander. The declaration contained four counts.

This was a bill in chancery brought by Aaron Sanford, jun. and Burr S. Wheeler, trustees for the creditors of Stephen Wheeler, under a deed of assignment by him, against George Wheeler, seeking relief against a mortgage deed. The material facts in the case are the following. On the 4th of May, 1836, Stephen Wheeler, who was then insolvent, owed to his son, George Wheeler, the defendant, a bona fide debt of 1418 dollars, 36 cents.

This was an action of debt on a note under seal, dated January 1st, 1831, for 100 dollars, payable one year and three months afterdate. The defendant pleaded, 1st, full payment; and 2ndly, accord and satisfaction. The cause was tried at Fairfield, April term, 1839, before Williams, Ch. J. On tbe trial, the defendant offered his brother, Harvey Bur-dell, as a witness.

This was an action of assumpsit for certain instalments on a subscription by the defendant to the capital stock of the company. The cause was tried at Fairfield, April term 1839, before Williams, Ch. J. The plaintiffs claimed to have proved all the facts stated in their declaration, tending to shew their right to sue and the obligation of the defendant.

This was an action of trover for a horse ; tried at JSew-Haven, October term, 1838, before Williams, Ch. J. On the trial, the plaintiff claimed the property in the horse under a bill of sale, dated May 3lst, 1837, from Edwin R. Yale, a partner in the firm of Yale & Henshaw ; and the defendant claimed the property under a subsequent bill of sale from E. R. Yale, to secure a debt due to him from Yale & Henshaw.

This was an action of ejectment; tried at New-Haven, October term, 1838, before Williams, Ck.

This was an action on a policy of insurance against loss or damage by fire, brought by writ of summons, to the superior court in New-Haven county, March term, 1838. Held: that the real plaintiffs were the stockholders. The question in that case was where was the party suing, during the five years that the statute of limitations had run ?

IN ERROR. This was an action of debt on judgment, brought originally before a justice of the peace, and appealed to the county court.

IN ERROR, This was an appeal from sundry decrees of the court of probate for New-Haven district, made in the settlement of the estate of Richard Stone, an insolvent debtor. Those which are the subject of examination in this case, are, 1. the decree of May 8th, 1837, appointing I. H. Townsend, W. P. N. Fitzgerald and John Durrie, to be commissioners on Stone’s estate. 2. The decree of January 9th, 1838, accepting the report of the commissioners. 3.

This was an action of trespass for forcible injuries to the school-house of the plaintiffs, its fixtures and furniture. Held: and consequently that the committee were not legally appointed, offered evidence to prove, and claimed that he had proved, that said meeting was not opened until 5 minutes after 7 o’clock ; and that as soon as the clock struck 7, the defendant, Peter Tyler, and one other person, all of whom were legal voters in said district, left…

This was an action of trespass on the case for flowing the plaintiff’s land. The cause was tried at New-Haven, January term, 1839, before Bissell, J. On the trial, the plaintiff introduced evidence to prove, that the defendants, in the fall of 1837, had re built an ancient dam across the stream mentioned in the declaration, on land-of Joseph Doolittle, one of the defendants, by means of which the water was impeded and made to flow the plaintiff’s land to its injury.

This was an action of trespass de bonis asportatis ; tried at New-Haven, January term, 1839, before Bissell, J. The plaintiff claimed title to the property in question, by virtue of a sale and… Held: that a person under an overseer can appoint appraisers of land on an execution against him ; this not being a contract within the letter, or an act within the spirit, of the statute.

This was an action of assumpsit on a promissory note, with counts for money had and received, and money paid, laid out and expended. The note was dated at Philadelphia, the 31st of March, 1837, for 8984 dollars, payable to the order of the plaintiffs, thirty days after date, without grace. The plaintiffs were described as a corporation, duly created by the legislature of the state of Pennsylvania, located at and doing business in the city of Philadelphia.

This was an action on the case, for raising the water in Gardner’s lake, by means of obstructions at the outlet, and thereby causing the plaintiff’s land adjoining that lake, to be overflowed. The cause was tried at New-London, September term, 1837, before Waite, J. The defendants had a mill-pond at the Northern end of Gardner’s lake ; the waters of the lake being drawn into such mill-pond for the use of the mills below.

This was an action for the support of a female, named Jenny, The cause was tried at New-London, September term, 183S, before Church J. In 1799, and for many… Held: that the slave was not so emancipated as to be capable of acquiring a settlement independently of her master. While the liability of the master to support the slave remains, the incapacity of the slave to acquire a new settlement remains also. .The latter is in the condition of a minor or an idiot — not sui juris.

This was an action against Samuel L. Hyde, as indorser of a promissory note, made by Oliver Allen, for 200 dollars. The first count in the declaration was in common form : there was another, which it is not necessary to state. The cause was tried at New-London, September term, 1838, before Church, J. On the trial, the plaintiffs produced in evidence the following writing: “ $200. Norwich, Ct.

This was an action of debt on bond against Alpheus Kingsley, Elisha Mansfield and James S. Clarh. The bond was dated the 14th of September, 1836, and was executed by Kingsley, as principal, and by Mansfield and Clark, as sureties.

This was an action of book debt for supplies furnished to the schooner Flora.

This was an action on the case for the obstruction of a water-course. The cause was tried at Norwich, March term, 1839, before Bissell, J. The plaintiff’s mill is situated on the Okseboksee brook ; and the defendant has a cotton mill on the same stream, a little above. On the site of the defendant’s cotton mill, there was, formerly, a grist mill, with a slight dam, barely sufficient to turn the water into a canal, by means of which the grist mill was operated.

•This was an action of ejectment for a small piece of land in the town of Lyme, described in the declaration as being bounded “ Southerly by the turnpike road.” The cause was tried at New-London, January adjourned term, 1839, before Church, J. Both parties claimed title under a grant or survey from the town of Lyme to Richard Ely, dated January 26th, 1676, in these words: “ Mr. Richard Ely, senior, his meadow on the East side of the Great River, belonging to Six-mile Island…

This was an action on the case against the defendants, as owners of the steamboat Bunker-Hill, and carriers for hire between Hartford and New-York, for injuries sustained by the plaintiff, a passenger on board such steamboat, through the want of proper care in the servant of the defendants.

This was an action of book debt, tried at Norwich, March term, 1839, before Bissell, J. Oil the trial, the plaintiff gave in evidence his book account against the defendant, amounting to 188 dollars, 63 cents, for a parcel of plank claimed to have been sold and delivered in the month of April, 1838.

This was an action of assault and battery and false imprisonment. The defendant pleaded the general issue, with notice of special matter in justification. The cause was tried at Norwich, March term, 1839, before Bissell, J. The defendant, at the time mentioned in the declaration, was master and in the actual command of the whaling ship Bingham, then on a voyage; and the plaintiff was, at the same time, a mariner on board that ship.

This was an action of ejectment, tried at Brooklyn, Octo-her term, 1838, before Huntington, J. The plaintiff claimed title to the demanded premises, by virtue of the levy of an execution in his favour, against Gur-don Huntington; and it was not denied, that he was entitled to recover, unless the defendant, who was in possession, had shewn a better title in Roger Bingham, who had had an execution in his favour, against said Huntington and Justin Swift, levied on the same…

Tins was an action of assumpsit, brought by the plaintiff, as indorsee of a bill of exchange, drawn by Samuel Dexter, as agent of the Boiven Bleaching and Calendering Company upon the defendants, and by them accepted, for 1000 dollars, dated June 24th, 1837, payable four months after date, to the drawer’s order, at either bank in Providence.

This was an action of slander. There were several counts, in each of which the words charged imputed unchas-tity to the plaintiff.

IN ERROR. In March 1836, Joseph Clark and others of Southington, and Elisha A. Cowles and others of Meriden, brought their petition to the county court holden at Hartford, on the fourth Tuesday of that month, for a highway in the town of South-ington, stating that the road was of common convenience and necessity, and that the select-men had been applied to, and had neglected and refused to lay out the road.

IN ERROR. This was a bill of foreclosure. Held: that if the incumbrance appears too large, it does no injury, unless there was a vitiating fraud. So if one take a mortgage of land, and take a further private security of stock, which he is first to apply to extinguish the debt, here the true extent of the incumbrance on the land does not appear, and yet it is a good mortgage debt.

This was a bill of foreclosure. On the 1st of August 1837, Thomas Brewer, Charles L. Roberts and Elbridge G. Roberts, being partners under the name of The New-England Carpet Company, and indebted to sundry persons in large sums, secured by notes, signed by C. L. Roberts, as agent of the company, requested the plaintiff to endorse such notes ; and to secure the plaintiff from loss or damage, by reason of such endorsements, the company mortgaged to him all their interest in…

This was a bill in chancery, to continue and render perpetual, a temporary injunction previously granted. Held: at their office, in the city of New-Haven, passed a vote, that “ the location of said road, for the purpose aforesaid, of the width aforesaid, the whole length of said line, should be, and was thereby established, by said company, and approved by themand that “ said board thereby confirmed and established the same.” In May 1839,…

This was an action against the defendant, as the maker of a promissory note.

in error. A new trial having been granted in this case, pursuant to the advice of all the judges, (ante 64-74,) the defendants pleaded anew. Their first plea was a denial of the truth of all the allegations in the declaration, except the execution of the indenture, and the payment, by the plaintiff of the first instalment. There were four other special pleas.

<p>To effect a complete adjustment of co-partnership concerns, the extraordinary powers of a court of chancery may be necessary ; and when necessary for that purpose, it will entertain jurisdiction, whether an action of account would, or would not, lie, between the parties.</p> <p>Therefore, where the parties to the articles of co-partnership were A, on one part, and B and three other persons, on the other part; and A brought his till in chancery for an account against B and others, alleging, that some of the defendants forcibly and fraudulently seized upon notes, accounts and other papers belonging to the co-partnership, and took them from the plain, tiffs possession, and still withheld them ; it was held, that this was a proper subject of equitable jurisdiction.</p> <p>A supplemental bill, when properly before the court, is an addition to the original bill, and becomes part of it, so that the whole is to be taken as ono amended bill.</p> <p>Therefore, where the original bill sought the adjustment of a partnership ac. count, and a supplemental bill was filed, calling for the production of papers in the defendants’ hands, to be lodged with the clerk of the court for inspection, and praying for an injunction against them with respect to the partnership «Wbts and effects ; it was held, that the matters alleged in the supplemental bill might properly be considered, in connexion with the original bill, in deciding upon the question of jurisdiction; and in this view, the jurisdiction was unquestionably sustainable.</p> <p>Where the committee appointed in a suit in chancery to take the partnership account, estimated the partnership effects, not by a sale, but by valuation or appraisal; and it appeared, that such effects were in the possession of the party objecting to the proceeding, who refused to give any account of them; it was held, that the course taken by the committee, was the only one in their power, and ought to receive the sanction of the court.</p> <p>Where the committee, in taking such account, charged to the defendants sundry notes in their hands belonging to the co-partnership against sundry persons, at the nominal amount of such notes, though it did not appear whether they had been collected, by the defendants, or were collectible ; yet as the defendants had reasonable notice of the lime and place of the meeting of the committee, and refused to appear befoTe them, and neglected to make any disclosure, explanation or denial of the plaintiff’s charges ; it was held, that the -committee might, with propriety, take those charges pro confesso, except so far as modified or explained, by the evidence before them ; and consequently, that their proceeding was, in this respect, unexceptionable.</p> <p>But where the committee charged to the defendants, in such account, “one slave, horses, wagons, harnesses, clocks, and divers other articles of visible personal property in Alabama, at 4,fi00 dollars and it did not appear, that such property was ever in the possession or under the controul of the de-feadants ; it was held, that this charge ought to be expunged from the account.</p>

<p>In a plea to an action on a bond, the conditions of which are general and in the affirmative, in contra-distinction to those which are in the negative, disjunctive or alternative, a general allegation of performance is sufficient.</p> <p>Where the condition of the bond in suit was, that the trustee of an insolvent person under the statute of 1828, should faithfully perform his duties ; and the replication to a general plea of performance, stated, that the court of probate appointed appraisers of the property assigned, but that the trustee did not, within two months after the assignment and his acceptance of the trust, make a true and perfect inventory and appraisement of the property held by him in trust, nor a list of the credits and choces in action, and has ever refused and neglected to inventory and appraise a large amount of the property so assigned, especially one gold watch and trimmings thereto, of the value of 150 dollars; without averring, that any credits or chases in action were assigned to the trustee, or that the articles specified were the property of the insolvent, or ever came to the possession or knowledge of the trustee ; it was held, that the breach in question was not well assigned.</p> <p>So, where the replication stated, that commissioners, duly appointed according to the statute, reported to the court of probate, that the sum of 1611 dollars was due to the several creditors, that their report was duly accepted, that the assets in the hands of the trustee amounted to 1500 dollars, and were nearly sufficient to pay all the debts allowed by the commissioners, and that to three creditors, (who were named,) the commissioners allowed certain sums, but that the trustee had paid no part of the sums thus found to be due ; without shewing, that the trustee had in his hands a surplus of assets beyond the preferable claims, which were applicable to the payment of the debts specified; it was held, that this breach was not well assigned.</p> <p>So, where the replication stated, that the court of probate made an order that the trustee should settle the estate, within one year from that time, and that he did not settle the estate within such year, nor had he ever settled the same, hut neglected and refused so to do ; without showing what acts, necessary to complete the settlement of the estate, the trustee had left undone ¡ it was held, that this breach was not well assigned.</p> <p>So, where the replication stated, that the court of probate made an order, requiring the trustee to sell all the estate assigned to him, giving public notice of the time and place of such sale, but that he did not comply with such order, or any part thereof; without showing, that a reasonable time had elapsed, since the order, for effecting the sale ; it was held, that this breach was not well assigned.</p> <p>The reason why the replication must be specific, while the plea may be gen. eral, in such case, is, that the onus lies on the plaintiff of pointing out the particular violations of the bond, that the defendants may be apprized of the facts, which the plaintiff will attempt to prove, on the trial.</p>

This was an action of trover; tried at Litchfield, August term, 3 839, before Sherman, J. On the trial, the plaintiffs claimed title to the articles of property mentioned in the declaration, by virtue of a conditional bill of sale from Nathaniel Stevens to them, dated the 6th of February, 1838, given to secure certain claims therein specified and referred to, one of which was a note for 800 dollars, from Stevens to E. Grove Lawrence, one of the plaintiffs.

This was an action of assumpsit, for services rendered by the plaintiff, upon the road of the defendants. There were three counts in the declaration ; the two first special, and the third a general count for work and labour. According to the averments in the first count, the plaintiff contracted with the defendants to make certain sections of their road and the bridges thereon, and that the same should be completed on or before the 1st day of November, 1831.

This was a bill in chancery, brought to the superior court, for an adjustment of partnership accounts, an injunction, and other appropriate relief. A demurrer was filed to the bill, at the term to which it was brought, upon which there was then a hearing before the court, and the bill was adjudged to be sufficient; and thereupon a committee was appointed to enquire into the truth of the facts stated in the bill.

This was an action on a promissory note. The declaration alleged, that the defendant, in and by a certain writing or note, by him well executed, dated the 20th day of June, 1838, promised the plaintiff, for value received, to pay him the sum of 213 dollars, with interest; as by said writing or note, ready in court to be produced, will appear ; nevertheless, the defendant, his said promise and undertaking not regarding, hath never performed the same, nor paid said sum of…

IN ERROR. This was a bill to foreclosure the equity of redemption in mortgaged premises. On the 12th of July, 1819, Joseph Squires mortgaged to Nathaniel Lothrop, a piece of land in Fairfield, to secure the payment of a promissory note for 216 dollars, payable on demand, with interest.

IN ERROR. This was a bill in chancery to obtain, from the defendants the title to a certain piece of land in Greenwich, called, “ the Byram lot,” and to restrain proceedings at law. The bill stated the following case.

This was a bill in chancery to obtain the avails of eight shares of the stock of the Hartford Bank.

This was an action of debt, brought by the plaintiff, as judge of probate, for the district of Norwalk, on a bond given to him, by the defendants, to secure the faithful performance, by Stevens, of the duties of executor of the last will and testament of Hezekiah Whitlock, deceased. The defendants pleaded performance generally.

This was an action by an officer, claiming damages of the defendants, for their refusal to surrender property, which he had taken, by a writ of attachment, in favour of Daniel Crowley, against Elisha Punderson and Amos Baker, and had delivered to the defendants, upon their written receipt, promising to re-deliver the same to him, or some other proper officer, on demand.

IN ERROR. The plaintiff in the original action described himself in the writ, as “ Henry Tolies, of Orange, in the county of Haven, and state of Connecticut.” To the present writ of error, brought by Colburn, Tolies pleaded in abatement as follows: “ And now the said Henry Tolies, the defendant in error, comes into court and prays judgment of the plaintiff in said writ of error, and that the same may- abate; because he says, that the said writ of error was no otherwise…

in error. In November, 1838, Gorham brought his action of book-debt against Bowers, before the county court; and W. P. N. Fitzgerald and Jared Bassett, Esqrs., were appointed auditors in the cause. At the term of that court in March, 1839, the auditors made their report, finding a balance of six dollars in favour of the plaintiff ; the report was accepted, and judgment rendered thereon. From this judgment, the defendant appealed to the superior court.

This was an action on a policy ^insurance against loss or damage by fire, to the amount of 5000 dollars, on the one undivided half of the paper-mill owned by the plaintiff, in Westville, in… Held: claiming to be tenant of the property, by virtue of his lease from the plaintiffs, and denying the right of the plaintiffs to enter upon or use the premises; and so held against the will and consent of the plaintiffs.

This was an action of assumpsit for the price of land sold and conveyed to the defendant. There were two counts in the declaration.

IN ERROR. This was an action of book-debt, brought by Bassett against Bradley. At the term of the superior court in January, 1839, auditors were appointed to adjust the accounts of the parties. The auditors, after a full hearing, found and reported, that the defendant was indebted to the plaintiff in the sum of 75 dollars. The defendant remonstrated against the acceptance of the report. The court found the following facts.

This was an action of ejectment; tried at New-Haven, January term, 1840, before Church, J. On the trial, it was admitted, that the plaintiff had formerly assigned to Sherman Bronson, two promissory notes against the defendant, which Bronson sued in the plaintiff’s name, and recovered judgments, and obtained executions thereon, which were levied on the defendant’s interest in the premises ; and this action of ejectment was brought to recover possession of the premises so…

This was an action of ejectment; tried at New-Haven, January term, 1840, before Church, J. On the trial, the plaintiff claimed title to the demanded premises, by virtue of the levy of an execution thereon, in his favour against Wealthy Bishop ; and in proof thereof, in con-nexion with other evidence, the plaintiff offered in evidence an authenticated copy of the record of the judgment, on which such execution issued and of the execution itself, duly returned into the office…