Volume 15 — Connecticut Reports

This was an action of ejectment, brought by Perry Smith, Esq., against the individuals composing the firm of G. I. Vin-ent ⅜ Co. and Frederick J. Fenn, Esq. The cause was tried at Litchfield, August term, 1841, before Sherman, J, The plaintiff claimed title to the premises, by the levy of an execution in his favour, for the sum of 8144 dollars. The defendants claimed title, by the levy of an execution, in favour of all the defendants except Fenn, for the sum of 6999 dollars.

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

This was a bill of foreclosure. The facts in the case appear from the report of a committee appointed by the court to ascertain them. They are substantially as follows.

This was an action for money had and received by the defendant, to the plaintiff’s use.

This was an action on the case, for neglect of duty by the defendant, as a deputy of the sheriff of Litchfield county, in not keeping and delivering up, when demanded, to be taken on execution, 35 mahogany cased, bronze-pillared clocks, which the defendant, as such deputy sheriff', had previously attached in a suit brought by the present plaintiff against Anson 11. Stuart. The action was commenced in December, 1836.

This was an action of trespass quare clausum fregit, returnable before a justice of peace.

This was an action on the case against the defendant, as a constable of the town of Plymouth, for neglect of official duty in the service of two writs of attachment in the plaintiff’s favour against Percival T. Butler.

This was an action of indebitatus assumpsit for money had and received to the plaintiff’s use. The cause was tried at Litchfield, February term, 1842, before Storrs, J. The plaintiff’s claim was for 666 dollars, 60 cents.

IN ERROR. This was an action of assumpsit, brought originally by Truman Curtiss against Grinnell Spencer. The declaration contained three counts ; one of which only it is necessary to notice here.

This was an action brought by Jesse Bucknam, as indor-see of a promissory note, against Daniel Barnum jr., Alan-son Taylor and Frederick W. Smith, as makers, alleged to be partners under the name of D. Barnum & Co. The note was made in the city of New-York; the partnership name of the defendants was subscribed thereto ; it was for the sum of 477 dollars, dated the 23rd of January, 1839, and was payable to A. W. Sanger, or order, six months after date.

This was an action for a libel. The writing complained of as libellous, was a report, made by the defendants, as a committee of the Factory School District in Greenwich, to that district: which was set out in the declaration, with proper innuendoes, and was as follows: “ To the Factory School District.

IN ERROR, This was an application to the county court, by Ard Reynolds against Ezekiel Reynolds and Edmond Lockwood, for a private way.

This was an action of trespass qu. cl.fr. The locus in quo was thus described in the declaration: “ A certain piece or tract of land in Trumbull, at a place called Shag, in quantity 7 acres, 1 rood and 29 rods, bounded North, by George L. Sherman in part, in part by the Picket tract, so called, in part by the plaintiff’s own land, and in part by Elias Y. Hawley's and William Curtiss’ land ; East, by land of John - Olmsted; South, by John Olmsted and Benjamin Bennett; and…

This was an action of debt on a probate bond, dated the 12th of December, 1822, against the defendant, the surety of Henry Belden, deceased, who was adminstrator of the estate of Uriah SellecJc, deceased. The defendant, in his plea, set forth the bond and condition, which were in the ordinary form. The time limited in the condition for the exhibition of claims, was six months, and for the settlement of the estate, seven months.

This was an action on the case. The first count of the declaration, after stating the incorporation of the defendants, by the legislature of this state, and their general powers, alleged, That the plaintiffs being lawfully possessed, in their own right, of a certain building with a cider-mill therein, situated in Bridgeport, on the land of Edward Burroughs, one of the plaintiffs, the defendants, on the 23rd of March, 1840, caused a certain steam engine to pass along their…

This was an action of trespass quare clausum fregit, brought originally before a justice of the peace ; appealed to the county court, where it was tried on the general issue ; and that court, having found that the title of land was in question, found the issue for the defendant.

This was an action of ejectment for a parcel of land in Bridgeport, lying West of the Pequonnuck river.

This was an action of debt, brought by the plaintiff, as administrator of the estate of Sarah Starlin, deceased, late of the city of New-York, to recover certain dividends made on ten shares of the capital stock of The Connecticut Turnpike Company, after her decease. The defendants pleaded, that the cause of action did not accrue to the plaintiff at any time within six years before the commencement of the plaintiff’s action against them. On this allegation, issue was joined.

This was a scire-facias, brought by Jeremiah Sturges, Esq., treasurer of the county of Fairfield, against Orrin Sherwood, on a recognizance, entered into by the latter, to keep the peace.

This was an action of debt on a bond executed by William Mix and Jesse Peck, as principals, and John 8.

IN ERROK. This was a bill in chancery for an account, discovery and payment, or surrender to the plaintiffs, of the balance in the hands of the defendants. The defendants, Elliott & Doolittle, made answer thereto ; and thereupon a committee was appointed to ascertain and report the facts. From these sources, the following statement is derived.

This was an action of assumpsit, founded on a writing signed by the defendants, of the following tenor : “ For value received, we jointly and severally covenant and agree with the New-Haven County Bank, that we will, at all times, hold ourselves responsible, to the amount of 20,000 dollars, to said bank, for such paper as may be indorsed by the firm of Street, Mitchells Gilbert, and holden by said bank, and will save said bank harmless from all loss, cost or damage, which…

This was an action on the case, in two counts. In the first count, the plaintiff alleged, that the defendant, on the 20th of October, 1840, wrongfully and unjustly put, and caused to be put and placed, divers, to wit, ten large logs of wood, and a large ox-cart, in the public highway in Branford, and wrongfully and injuriously kept and continued, and negligently and wrongfully permitted the same to remain therein, and in the usually travelled path thereof, during the space…

IN ERROR. On complaint made to a justice of the peace, in April, 1841, against William H. Hale, for the sale of spiritous liquors and wine, contrary to the statute of 1839, he was bound over to the next term of the county court, holden in June, 1841.

IN ERROR. This was an action of assumpsit, brought originally, by the town of Bethany, against the town of Oxford, for the support of Marietta Lines, a pauper. The cause was tried in the county court of New-Haven county, November term, 1840. The General Assembly, at its session in May 1839, passed an act or resolution, annexing part of the territory of the town of Oxford to the town of Bethany.

This was an action of indebitatus assumpsit for goods sold and delivered, commenced July 12th, 1840. The defendants pleaded the general issue, with notice of a set-off. The plaintiff exhibited a bill of particulars, specifying certain parcels of lumber, for which he claimed payment.

This was an action of trespass for the arrest and imprisonment of the plaintiffs.

This was an action of trespass de bonis asportatis. The defendants pleaded the general issue, with notice that they should prove certain facts as a justification.

This was an appeal, by Dyer Brewster and others, heirs at law of Dyer McCall, deceased, and by The American Society for ameliorating the condition of the Jews, from a decree of the court of probate for the district of Norwich, making distribution of said McCall’s estate.

IN ERROR. This was an action on the case for fraud in the sale of a cow, brought, by Maine against Bailey, to and tried in the county court.

This was an action brought to recover the value of certain articles of machinery used in a cotton factory. The declaration contained two counts ; one in trespass, the other in trover. The cause was tried at Brooklyn, January term, 1842, before Waite, J. , .

This was an action on a promissory note ; tried at Brooklyn, January term, 1842, before Waite, J. The plaintiff had a verdict; and the defendant moved for a new trial. The facts in the case and the ground of the motion sufficiently appear in the opinion of this court. The case was submitted without argument.

This was a bill in chancery for priority of title in mortgaged premises and an injunction. On the 25th of November, 1837, Francis L. Wheaton, being in debt to the plaintiff, made, executed and delivered to him sundry promissory notes, and a mortgage deed of a tract of land in Pomfret.

A new trial having been granted in this case, (14 Conn. Rep■ 174.) the defendants pleaded anew. To the first count, which is the one stated 14 Conn. Rep. 147. they pleaded Not guilty. To the second count, which was similar to the first, except that it averred that the defendants voluntarily opened the banks of the canal, and conducted the water into and across the lands of the plaintiff, whereby the same was washed and carried away, &c. several pleas were pleadetj.

This was an action of trespass for an illegal arrest and imprisonment of the plaintiff. Held: on the 7th of October, 1389, to transact the following business: 1. to choose officers ; 2. to raise money to defray the expenses of the society; 3. to take into consideration the expediency of raising money for the use of schooling for the year ensuing.

This was an action of trover for a quantity of plow castings.

IN ERROR. This was an an action of assumpsit, brought by Thomas H. Marshall against Ansel Humphrey, for money had and received, paid out and expended, &c. The writ was served, by attaching the defendant’s goods. In the county court, at its term in August 1839, the defendant pleaded in abatement the pendency of another suit, previously commenced, between the same parties, for the same cause.

This was an action of trespass guare clausum fregit, with a count de bonis asportatis.

Tins was an action of trespass vi ct arm is, alleging, that the defendant, on the 25th of August 1841, drove a certain carriage, called a barouche, on the public highway in Wethers-field, with great force and violence, against another barouche, the property of the plaintiff, in which he was then riding in and along said public highway, and thereby broke to pieces said barouche of the plaintiff; by means of which the plaintiff wa-; i!:r The cause was tried at Hartford,…

This was an action on the case for the diversion of a water-course. The cause was tried at Hartford, December adjourned term, 1842, before Slorrs, J, The plaintiff and defendant lived upon a road running North and South, the plaintiff’s house being thirty or forty rods South of the defendant’s. About fifteen or twenty rods West of their houses, a brook flowed from the North to the South through the premises of both parties, which was a permanent stream.

<p>Though where a party has in his possession a deed or other instrument necessary to support his title, and he refuses to produce it, and attempts to make out his title, by other evidence, such refusal raises a strong presumption that the legitimate evidence would operate against him; yet this rule is not applicable to such documents as he has no right to give in evidence, without the consent of the adverse party; the only effect of the refusal, in such ease, being to authorize the adverse party to give secondary evidence of the contents of the documents withheld.</p>

IN ERROR. This was a bill in chancery. The ease was as follows. Henry Kilbourn and the firm of Kilbourn & Wolcott, of which Henry Kilbourn was one, were the makers of several promissory notes made payable at the Hartford Bank. They were all indorsed by Charles Whiting & Co., for the accommodation of Kilbourn. The plaintiff was a subsequent in-dorser of three of these notes, which amounted to the sum of 3,500 dollars.

This was an action of trover against Solomon Marsh and John E. Sedgwick, for a stage coach. The cause was tried at Litchfield, February term, 1842, before Storrs, J. On the 10th of February, 1839, and before, the plaintiff was the owner of the coach in question.

This was an action of assumpsit. The declaration, consisting of two or three counts, stated in one count, that on the - 1st day of October, 1838, the defendant being the owner of shares in a joint stock corporation, transacting business in the town of Torrington, under the name of Wadkams, Webster & Co., it was mutually agreed between him and the plaintiff, that the defendant should sell to the plaintiff, and that the plaintiff should purchase of the defendant, said shares…

This was an action of assumpsit, founded on the following written instruments: 1. “ This agreement, made between William Church of Canaan, and Albert Bushnell of Salisbury, witnesseth — The said William, on condition that the said Albert performs the agreement on his part hereinafter set forth, agrees to pay him 1 dollar 75 cents per ton, for all the iron-ore the said Albert shall dig and raise from the ore-bed in Salisbury, owned by Samuel and Leman Church, not exceeding…

Pursuant to the opinion of this court, ante, 39-45. a new trial of this cause was granted, and was had, at Litchfield, August term, 1842, before Williams, Ch. J. The defendant, in support of his plea, offered evidence to shew, that Adino Hale, for many years before his death, had acquired a right of a way, by prescription or possession, over the locus in quo, now owned by the plaintiff, while Martha Hale was the owner thereof; claiming that this right continued in him until…

IN ERROR. This was an action of trespass for an assault and battery and for false imprisonment, brought originally by Stanton A. Campbell against Jerome B. Chambers and Horace Hollister. The defendants pleaded, severally, Not guilty. On this issue, the cause was tried, ax Litchfield, August term, 1841, before Sherman, J. The defendants, after due notice to the plaintiff, introduced evidence to prove the following facts, by way of justification.

This was an action of covenant broken. The declaration -stated, that on the 10th of October, 1827, by a certain instrument under seal, made between the plaintiff and Ichabod Loomis, and 'delivered by the plaintiff to said Loomis, which the said Loomis accepted, the plaintiff, for the consideration therein mentioned, demised and leased unto the said Loomis, his heirs and assigns, a certain peice of ground or building lot, with certain appurtenances thereunto annexed,…

This was a bill in chancery for a foreclosure. At different times on and between the 11th of December, 1835, and the 9th of November, 1836, Jesse Whiting made three promissory notes, and Whiting After the four notes, indorsed by the defendant, became due, and were lying over at the bank, and while his liabilities thereon continued, the plaintiffs attached his property for such liabilities ; and thereupon, the defendant, to relieve his property from such attachments, but…

This was an action of trespass against John Dick, Anthony Wyganl and Ezra Patch, for taking a quantity of satinet warps belonging to the plaintiff. The defendants pleaded, severally, Not guilty, with notice of a justification. The cause was tried at Danbury, September term, 1842, before Waite, J. The taking of the goods specified in the declaration, was admitted by the defendants.

This was an action of assumpsit. The declaration alleged, that the defendant, on the 15th of August, 1833, in consideration that the plaintiff would, at the special instance and request of the defendant, give credit to the defendant’s son, George Reed, and allow him to become indebted to the plaintiff, undertook and faithfully promised the plaintiff, that he Would hold himself accountable to the plaintiff for any sum that his said son George Reed might become indebted to the…

This was an action of ejectment for a tract of land, with a dwelling-house and out-houses thereon. The cause was tried at Danbury, September term, 1842, before Waite, J. . Simon Ingersol was the owner in fee of the demanded premises, and died seised thereof,’ in the month of January, 1828, leaving Alton Ingersol, (the plaintiff,) Alexander S. Ingersol, John J. Ingersoll and Sarah Ingersol^ now the wife of the defendant, his only children and heirs at law.

IN error. This was an action of debt on bond, brought originally by The Housatonuc Rail-Road Company against The City of Bridgeport,… Held: on the 25th day of March, 1837 : ‘•Also Voted, That Charles Hill, Charles Foote and Alan-son Hamlin, Esqrs., having been appointed by said city to 1 , 7 , . , . borrow one hundred thousand dollars, which is subscribed in the books of the Housatonuc Rail-Road Company, be required to give good and sufficient bond, to the acceptance of…

This was a bill of interpleader. The casé was as follows. On the 20th of April, 1841, Abraham Crissey was indebted to Thomas S. Husted, one of the defendants, upon a promissory note, payable to him, on demand, in the sum of 137 dollars, 50 cents, and on book, in the further sum of489 dollars, 75 cents, for two parcels of leather sold by Husted to Crissey, in the months of January and February, 1841 ; against which was a credit on book in favour of CrMsey, for 33 dollars, 51…

IN ERROR. This was an action of debt on judgment, brought by Cur-tiss against Beardsley, to the county court. The judgment - declared on was rendered in a suit between the same parties, on the 2nd of April, 1833, by Adoniram Fairchild, Esq., a justice of the peace, for 35 dollars damages, and 5 dollars, 54 cents, costs of suit.

IN ERROR. This action was originally brought by Alfred D. Curtiss against Philander Sharp, before a justice of the peace, and thence, by appeal, came before the county court. There were two counts in the declaration.

IN ERROR. This was an action of book debt, brought by Charles T. Shelton, Esq. against Abel Hoadley, and tried in the county court of New-Haven county, November term, 1841, on the general issue closed to the court.

This was an action on the case; tried, on the general issue, at New-Haven, October term, 1842, before Williams, Ch. J. The plaintiff claimed, that, on the 10th of January, 1840, the defendants, being owners of the steam-boat Lexington, which had, for several years, been one of the line of boats transporting goods for hire, from New-York to Stonington and Providence, for all persons who chose to employ them, being the owner of two carriages, placed them on board that boat, in…

The judgment of the county court in this cause, having been reversed, on a writ of error, pursuant to the advice of this court, ante 253., the cause was entered in the superior court, and was tried at New-Haven, January term, 1843, before Waite, J. The only question was, as to the settlement of Zebulon Lines, the husband of Marietta Lines, the pauper for whose support the action was brought.

This was an action of trover, to recover the value of a pair of Burr mill-stones, taken by the defendant. The cause was tried at New-Ilaven, January term, 1843, before Waite, J. The plaintiff claimed title to the property in question, by-virtue of a sale made to him by Walter 6>. Thompson and Charles Cooper. The defendant, who admitted the taking, claimed a right to do so, under the following circumstances.

This was a bill in chancery for a foreclosure. Held: as security for the debt due to them, a note of T. Butler, for 99 dollars, 31 cents, payable on the 26th of June, 1837.

This was an action of trespass qnare clausum fregiU brought by Joel K. Northum, William B. Nurihmn, Lucy-Ann Northum, and John C. Northum, against Alfred Kellogg, to the county court, in March, 1841.

This was a bill in chancery, stating the following case. On the 3rd of September, 1839, Seth Brainerd, the plaintiff-, was indebted to Cornelius Brainerd, the defendant, by three promissory notes, amounting, with interest to that timej to 475 dollars. The defendant demanded security for the payment of this sum, and declared, that if the plaintiff did not give him such security, he would harass him with suits, or otherwise put him to great inconvenience and expense.

<p>A, B and C, in April, 1810, in contemplation of a marriage between A and B, entered into an indenture tripartite, by which .4, having received personal property of the value of 6595 dollars, as the marriage portion of B, covenanted, that in case he should survive B, he would, within six months after her death, pay two third parts of that sum to C, in trust for such person as i? should, by will, appoint; and C covenanted that he would use all proper means to collect such sum as should become due from.A, and pay it over to the appointee of B. In a few days afterwards, the marriage between A and B took place. In January, 1811, B made her will, by which she gave to A the use of all said property during his life; and then, after giving a legacy to a nephew, disposed of the residue of her estate to her brother D, and appointed A her executor. In June, 1811, Bdied. A accepted the trust of executor; and the court of probate limited the term of six months for the presentment of claims against B’s estate. A remained in possession of said property, appropriating the income thereof to his own use, until his death in 1841. On an appeal from the report of commissioners on T-s estate, it was held, that D's right under the w ill of B, to two thirds of said property, was not barred, by the neglect of C or D to present the claim within the tíme limited for the exhibition of claims against Us estate.</p> <p>On an appeal from a report of commissioners, the claims as exhibited to them, are open for examination in the superior court.</p> <p>Therefore, if the claim of A, as exhibited to the commissioners, be rejected in part by them, and i?, another claimant, appeal from the report, the whole claim of A is open for examination in the superior court, and it is competent . to that court to allow the whole.</p> <p>Where the land of the wife was sold, by the husband and wife, and a promissory note for the avails was taken in her name, and kept by her, during her life, after which it was found in one of her drawers, and was inventoried, by her hushand, as a part of her estate; it was held, that such note, when made, became the property of the husband.</p> <p>In such case, no agreement between the husband and wife, could be made, during coverture, which, in legal effect, would transfer, by way of gift or sale, the property in the note, from the husband to the wife.</p>