Volume 18 — Connecticut Reports

.This was an action of trespass for illegally seizing the brig Joseph Gorham, and taking her from the plaintiffs, who, on the 15th of September 1843, as constable of the… Held: not in his own right, but as an officer of the state, and under process of the state. The process was valid ; and his taking under it was not a trespass. Luddington v. Peck, 2 Conn, R 700, Swift v. Chamberlain, 3 Conn. R. 537. Tarleton v. Fisher The right of recaption extends to no case like this.

This was an action of ejectment, to recover of the defendant the seisin and possession of one undivided seventh part of certain lands described in the declaration. Held: that he might pay on the Monday following. contended. 1. That the day of the testator’s death must be excluded in the computation. Here the character of the bequest, and the object of the condition, are to be regarded.

This was an action founded on the statute relating to highways and bridges, to recover damages for an injur)'’ which the plaintiff received, by being thrown from his horse, while passing, in the town of Weston, over a defective bridge.

This was an information in the nature of a quo warranto, filed by the state’s attorney for Fairfield county, on the relation of Sullivan M. Colborn, against the Washington, Bridge Company. Held: by the supreme court of errors, to be sufficient to cover the rights of navigation. 5.

The original action was assumpsit, brought by Morris Alvord and Ebenezer Mills against Alanson Lyon, before a justice of the peace, who rendered a judgment in favour of the plaintiffs, from… Held: that expenses of going into port to refit, ware-housing, &c., are subjects of general average. 3 Kent’s Com. 235, 6. 238. Abbott, 381, 2. Bedford Commercial Insurance Company v. Parker, 2 Pick. 1. 8. Walden v. Girard, 4 Dal. 274. 3. That the motion in arrest was properly overruled.

This was a complaint for forcible entry and detainer, brought by Andrew Bell against Stephen Raymond, before the judge of the county court and a justice of the peace.

This was an action of assault and battery ; to which the general issue was pleaded, with notice of special matter to be given in evidence. The cause was tried at Fairfield, February term, 1846, before Hinman, J. The assault for which the action was brought, took place on the 4th of April 1844, in a dispute between the parties relative to a piece of land, the possession of which was claimed by both.

The first of these was a bill in chancery, seeking the reformation of a mortgage deed and a foreclosure of mortgaged premises. The other was a cross-bill, setting forth a mistake or misapprehension on the part of the plaintiff therein, relative to the mortgage contract, and praying for equitable relief.

This was an action on a promissory note; tried, on the general issue, at New-Haven, October term, 1845, before Waite, J. On the trial, the making of the note, by the defendants, and the appointment of the plaintiffs as administrators cum testa-mento annexe, were proved and admitted The defendants then read in evidence a release, executed by Daniel Tolies, one of the plaintiffs, as administrator aforesaid, under his band and seal, dated April 0th, 1844, acknowledging the…

This was an appeal from a decree of the court of probate, passed on the 26th of March 1844, accepting the report of commissioners on the estate of Issac Mills, deceased, represented insolvent. By the doings of these commissioners, a claim in favour of the estate of Wildman against the estate of Mills, amounting to 2290 dollars, 46 cents, was allowed. The appeal was taken by the executors of Mills.

This was a bill in chancery to obtain from the defendant a conveyance of his interest in certain mortgaged premises, with other relief.

This was an action on an inland bill of exchange, drawn by Franklin Merrills, of Poughkeepsie, in the state of New-York, on the defendant, Chauncey Jerome, of New-Haven, in this state, dated the 1st day of March 1844, for 1678 dollars, 73 cents, payable to the order of the drawer, at the Union Bank in the city of New-York, five months after date, accepted by the defendant, and indorsed by Merrills to the plaintiff.

This was an indictment for the murder of Lucius P. Osborne; tried at New-Haven, October term, 1845, before , T 1 TT7 • T ' hams, Ch. J. and Waite, J. While the jury were being empanelled, Joel Augur was called, by the sheriff, as a talesman ; and being enquired of, by the counsel for the prisoner, whether he had formed any opinion as to the prisoner’s guilt, he said, that soon after the prisoner’s arrest, he read certain newspaper accounts in relation to the supposed murder;…

This was an action of account, brought by John S. Peters and William Jarvis, administrators of the estate of Richard W. Hart, deceased, against Stephen W. Starkey, alleging, that from the 10th of January, 1834, to the 16th of March, 1837, the defendant was bailiff of said Haft, and during that time had the charge, care and management of sundry claims and demands in favour of and belonging to said Hart — fdescrib-ing them] which notes and accounts the defendant received, to…

This was an action of assumpsit, to recover the expense of support furnished by the plaintiffs to Elijah Hubbard 2d, and Anna, his wife, and their five minor children, [naming them,] alleged to be inhabitants of the town of Berlin, who were residing in the town of Middletown, and were destitute of property, and reduced by sickness to want and distress; of all which the defendants had notice.

<p>The relation of landlord and tenant between a juror and the bondsman for the prosecution of the suit, is not a disqualification of such juror. ⅜</p> <p>Where the plaintiff in an action of trespass vict armis, in one count, alleging sundry wrongful acts of the defendants, on one day, claimed, that all the acts complained of took place, on that day, in the prosecution of a concerted plan of the defendants to get the plaintiff out of the house; and after the plaintiff had given evidence of an assault, by one of the defendants alone, early in the morning, she was proceeding to prove a subsequent assault, by the other defendant, when the defendants objected to the latter evidence; the court decided and charged the jury, that the plaintiff, under her declaration, could prove but one assault, and that the one she had elected to prove ; but that if the acts complained”'of were parts of a concerted plan of the defendants, as claimed by the plaintiff, the evidence objected to was proper; it was held, that the course thus taken by the court was correct.</p> <p>Where the complaint of a grand-juror, who had testified for the plaintiff in such action, was offered in evidence, by the defendants, to rebut the testimo-rsy of such grand-juror and of other witnesses; and there was nothing in the complaint inconsistent with such testimony ; it was held, that the complaint was inadmissible.</p> <p>Where the declaration charged a joint assault by the defendants; to which they pleaded jointly Not guilty, and informed the court, that this was intended to meet the declaiation exactly; there was no claim by the plaintiff thatone of the defendants could be subjected for an assault by the ether, unless they acted in concert; the defendants claimed and-requested the court to charge thejury, that if they should find one defendant guilty and the other not guilty, they should render a verdict accordingly; but the court, in view of the matters actually in controversy, submitted the caseto thejury upon the evidence, directing them only, that if they should find the facts proved, as stated in the declaration, they must return a verdict against the defendants; and the jury returned such a verdict; it was held, that the defendants had noground of complaint against the charge.</p> <p>Where a verdict for the plaintiff was given, on the 6th day of the term ; and a motion in arrest being filed by the defendants,the cause remained pending in courtuntil the 15th, when the plaintiff died ; it was held, that judgment might be rendered as of the day of the verdict.</p> <p>In such case, it makes no difference whether the cause of action would, or would not, survive.</p> <p>Though the plaintiff, in an action of trespass vi et armis, may show, that the assault complained of took place in the house occupied by him, as giving a character to the transaction; yet he will not be permitted to prove title in himself.</p>

<p>This was an action of ejectment; tried at New-London, September term 1845, before Waite, J.</p> <p>The material facts in the case are these. John Lewis, from whom the plaintiff claimed title, made, in 1799, a contract, with Samuel Green for the purchase of a certain tract of land, situated in the city of New-London. In 1801, he purchased of Jared Starr a small strip of land, the demanded premises, adjoining the Green land upon the South-Easterly side ; and two years afterwards, he received from Green a conveyance of his land. In the year 1808, Lewis, being the owner of both pieces, lying together, conveyed to Caleb Gillet “ a certain lot of land,” giving the boundaries of it, but in such a manner as to render it doubtful from them alone, whether they included both pieces, or only the Green land. But all doubt on that subject was removed, by another clause in the deed, stating that it was the same lot of land that he purchased of Green and Starr. Gillet subsequently conveyed the same lot to Jacob Holmes ; Holmes to Leonard H. Bulkley ; and Bulk-ley, by deed bearing date August 13th, 1829, reconveyed it to Holmes. The language used in describing the lot, in all these deeds, is very similar. On the 12th of February, 1830, Holmes executed a deed to Matthias IV. Baker, giving the boundaries and description of the lot as in the preceding deeds, but further describing it as <£ being the same lot of land 1 purchased of Leonard II. Bulkley, as per his deed on record, dated New-London, February 12th, 1830, will felly appear, and to which deed, recorded in book on page of said records, reference may be had.” Baker, in March, 1831, conveyed the premises to the plaintiff'.</p> <p>No deed from Bulkley to Holmes, bearing date February 12th, 1830, was produced ; nor was there any evidence tending to show that any such deed had ever been given, except the reference above stated in the deed to Baker; nor that any other deed was ever given by Bulkley to Holmes, except that of August 13th, 1829.</p> <p>The defendant claimed, that as no deed had bgen produced of the date referred to in that from Holmes to Baker, the reference must be regarded as a nullity, and could not be taken into consideration by the jury, in determining whether the latter deed embraced the demanded premises ; and he prayed the court so to instruct the jury. He further claimed, and offered evidence to prove, that the parties to said deeds did not in fact intend to include in them the demanded premises: and that if the jury were satisfied, that such was the intent of the grantors, their verdict must be in his (the defendant’s) favour.</p> <p>The court did not instruct the jury in conformity to these claims, but submitted the question, whether by virtue of said deeds, the plaintiff had acquired title to the demanded prera-ises.</p> <p>The jury returned a verdict for the plaintiff; and the defendant moved for a new trial for a misdirection.</p> <p>after remarking, that in ejectment the plaintiff must prove title; (1 Sw. Dig. 507.) contended, 1. That in this case, the plaintiff must fail to establish her title, unless the deed from Bulkley to Holmes of August 13th, 1829, can be regarded as a part of the deed from Holmes to Baker.</p> <p>2. That if a party would avail himself of a reference, he must produce the document referred to, or prove its loss and give evidence of its contents. 1 Stark. Ev. 173. Here, the deed referred to was not produced; nor was there any proof Gf its loss. A mistake in a deed, if there was one in this * cannot be proved at law ; a court of equity alone being competent to furnish such relief. But no evidence was offered to show a mistake.</p> <p>3. That in the absence of the deed referred to, without proof of loss or mistake, the jury should have been instructed^ that the reference should be regarded as a nullity.</p> <p>4. That if the intention of the parties can be ascertained from the deeds alone, the court erred in leaving the question whether the plaintiff thereby acquired a title to the demanded premises, to the jury, to be determined by them from extrinsic evidence.</p> <p>insisted, 1. That the description in the deeds under which the plaintiff claims title, independently of the reference in the deed from Holmes to Baker, was sufficient to include the,demanded premises.</p> <p>2. That if any aid from that reference was needed, it must be considered as pointing to the deed from Bulkley to Holmes of August 13th, 1829, the date specified in the reference being rejected as incongruous. This deed from Bulkley to Holmes unquestionably embraced the demanded premises.</p> <p>3. That if there still remained any doubt as to the application of the description to the demanded premises, that doubt is now removed, by the finding of the jury.</p>

This was an action of indebitatus assumpsit, brought originally to the county court, and thence appealed to the superior court. The declaration, consisting of two parts, (a) was as follows. 1.

<p>IN ERROR.</p> <p>The husband has such an interest in lands owned in fee by the wife, that he can give a lease thereof for a term of years, which will be valid, during the coverture at least; and an agreement to give such a lease, if not otherwise objectionable, may be enforced in a court of chancery.</p> <p>A, having a freehold estate in a certain lot of land owned in fee by his wife, entered, in the fall of the year, into a parol agreement with B, that he, A, would erect upon such lot a substantial brick store, and have it completed by the 1st day of April then next; and that he would let such store to B for the term of three years from said 1st day of April, for the yearly rent of 500 dollars, to be paid quarterly. A erected such store, on said lot, pursuant to the agreement; and B immediately took possession of it and occupied it for one year, paying the stipulated rent quarterly. Before the expiration of this year, A gave 5 notice to quit possession, and brought summary process to get him out, B then sought the aid of a court of chancery to compel A to give him a lease of the premises, in conformity with the terms of the agreement. Held, 1. that the agreement was within that clause of the statute of frauds, which relates to the sale of lands &c. or an interest therein ; 2. that here was a part performance, sufficient to take the case out of the statute, so as to authorize a court of chancery to decree the specific performance of it; 3. that the agreement was to be performed within one year, and consequently, was not within that clause of the statute which relates to agreements not to be performed within one year.</p> <p>In such case, B, after the erection of the store and before the commencement of the suit, offered to A a writing in the form of a lease, to be executed by him, containing a clause, providing that in case the store should be destroyed by fire, or rendered unfit for use, the payment of rent should from that time cease, until it should be put in good order by A ; and thereupon A refused to execute such lease, or even to read it, saying, 511 have no lease to execute;53 it was held, 1. that A was not bound to execute the lease offered, or any lease containing such a provision ; but 2. that this furnished no excuse to A for not executing a lease containing the usual provisions.</p> <p>It seems, that at law, nothing short of a full and complete performance, by one party, of an agreement within the statute of frauds, will take it out of the operation of that statute.</p>

<p>Where the defence to an action for the obstruction of a water-course, by the erection of a dam below the plaintiff's works, and thereby setting the water back upon them, was, a right in the defendant., acquired by prescription, to raise the water, in the manner and to the height complained of; and it appeared, that the defendant at first erected a temporary wooden dam, by which the water was raised to that height; but he afterwards, for his convenience in erecting a permanent stone dam, discharged the water, for some time, through a waste-way, in consequence of which the water was so lowered as not to flow up to the plaintiff’s wot ks; and then, when the permanent Jam was completed, the water was raised again, by means thereof, to the height complained of, and was so continued; it was held, that the period of user, by virtue of which the prescriptive right claimed by the defendant could be ao quired, did not commence until the water was permanently raised, by the stone dam, after its completion.</p> <p>In April, 179⅜, A conveyed to B a parcel of land bordering: on a water-course, with liberty to B to use the water to operate his mill, or any other use he might see cause to put it to, at any time when it run over the grantor's dam above. B occupied the premises so conveyed, and used the water to operate his mills from that time until July, 1843. In an action then brought by B against C3 the owner of a mill privilege below, for raising the water, by means of a permanent dam, and thereby setting it back upon B s works, it was held, l. that whether B’s right to use the water was, under his deed from A, a qualified right, or not, C, having no right or license to do the acts complained of, had thereby violated the right of B, for which B was entitled to a recovery; 2. that for this purpose, it was not necessary for B to prove any specific actual damage resulting therefrom.</p> <p>In actions of this description, actual possession alone, is, as against a mere wrong-doer, a sufficient title to support a recovery.</p>

This was an action of assumpsit, brought by Joseph Steene, assignee of the estate and effects of Henry C. Peck-ham, a bankrupt, under the late bankrupt act of Congress, against Eli Aylesworth, to recover the value of certain real estate conveyed by Peckham, before he became a bankrupt, to the defendant, and of divers goods, wares and merchandize, by him, before that time, sold and delivered to the defendant.

This was a bill for the foreclosure of a mortgage. The case stated and found was as follows.

This was an action on the case, brought by Thomas C. Perkins, Esq., as administrator of the estate of Henry Hudson, deceased.

This was an appeal from a decree of the court of probate, accepting the report of commissioners on the estate of John Ward & Sons, assigned for the benefit of their creditors, under the statute of 1828.

This was an action of ejectment. The declaration, containing but one count, was as follows : That to the plaintiffs the defendants render the seisin and peaceable possession of two certain tracts or parcels of land, [describing them] containing thirty five acres, with all the buildings thereon, together with all the tools, machinery and fixtures for making brass and wood clocks ; both of which tracts of land, said machinery, fixtures and tools, the plaintiffs, on or about…

<p>A writ of attachment in an action of book debt, in favour of A against B, dated the 10th of November, was served, on that day, by attaching the property of B and leaving a copy with him. While this writ was in the hands of the officer, unreturned, A discovered that his claim, which was the subject of the suit, was not then due. The officer then, by A's direction, erased his in-dorsement of service on the writ, and with that writ, without other alteration, attached the same property, on the 14th of January following, after A’s claim had become due; and having indorsed the writ as served on that day, returned it to the clerk of the court. B pleaded the general issue, and, on the trial of the cause, objected to a recovery by A, on the ground that no cause of action had accrued when the action was commenced. Held, 1. that if the rights of B had been essentially affected, by the act of the officer in erasing his first in-dorsement. of service, he might be compelled to restore it, either upon motion or writ of mandamus ; 2. that as the action, at the first service of the writ, was ineffectual to secure the claim, such service would not abate the suit after-wards commenced ; 3. that the use of the same writ on both occasions, was justifiable; 4. that consequently, the defence relied on was unavailing. [One judge dissenting.]</p>

<p>Partnership debts are to be paid out of partnership funds.</p> <p>The interest of one partner in the partnership property, is his share in the surplus, remaining after the payment of the claims against the partnership; and that surplus alone is liable for his individual debts.</p> <p>Any appropriation of the partnership property, by one partner, in payment of his individual debts, without the consent of his co-partners, is a violation of his duty, and a fraud upon them.</p> <p>A creditor of one partner can only attach or levy his execution upon the partnership property, in such manner as to lake that partners interest therein, subject to the claims of all the partnership creditors.</p> <p>On the 1st clay of June, 1842, A, B and C. entered into partnership, In the business of keeping a livery stable, and as such partners, purchased of D, property necessary for conducting such business, to the amount of 8200 dollars, for which they gave their joint and several promissory notes, payable on the 1st day of February, in the years 1843, 1844, 1845 and 184G, respectively, in August 1842, C died ; and the business of the partnership was continued by A and B, with the partnership capital, without any adjustment of the partnership concerns, until 4.ay 1844; during which time, they paid from the partnership funds, two of the notes to D, amounting to 4200 dollars, the other two being still unpaid. At the time of C’s death, the partnership property was sufficient to pay the partnership debts; but the business was afterwards ruinous. A, being appointed administrator of C, sold, in May 1844, by order of the court of probate, and with the consent of C’s heirs, one undivided third part of the partnership property then remaining, to E, for the use and benefit of A ; and A thereupon assumed the payment of that portion of the notes to D, which it belonged to C in his life-time to pay. On the 19th of June following, A settled his administration account, charging C’s estate with 3002 dollars, on account of the notes given to D, and crediting that estate, with 2094 dollars, for the avails of the partnership property belonging to it thus showing a loss resulting to it from tbeparinership concern of 908 dollars. After the death of C, new partnership debts were contracted, which are still unsatisfied. Some of these creditors brought suits on their respective claims against A alone, attaching his interest in the partnership property; which suits are still pending. In April, 1844, A executed a mortgage of all his interest in the partnership property to certain other creditors, to secure debts against him individually. A is entirely insolvent, and B has no estate, except his interest in the partnership property. On a bill in chancery, brought by the heirs of C, against A and B, and the attaching creditors and mortgagees of A, it has held, 1. that the notes given by A B and C, to D, notwithstanding their form, constituted a partnership debt; 2. that the death of C dissolved the partnership then existing ; 3. that upon this event, all the effects of the partnership vested in A and B, the survivors, who became bound to apply them in payment of the partnership debts, so far as they were needed for that purpose; 4. that although the notes given to D were, in form, several as well as joint, so that D could sustain an action at law thereon against C’s administrator, without resorting to A and B as surviving partners, yet this did not vary the equitable rights of those interested in C’s estate, nor prevent the interposition of a court of chancery, to apply the partnership effects in payment of the debt; 5. that the rights of those interested in C’s estate were not impaired, by delay in closing the partnership concerns ; 6. that they were not impaired in consequence of the sale to A, through the agency of E; for whether A could, under the circumstances, be both seller and purchaser or not, yet he received the property subject to the incumbrance of the notes to Df and it was still liable for the payment of those notes ; 7. that the creditors of the partnership, whose debts were contracted after the death of C, were entitled to share in the partnership effects; 8. that those creditors who liad brought suits against A alone, and attached his interest in the partnership property, which suits were still pending, were also entitled to share in the partnership effects; 9. that the mortgagees and other creditors of A individually, could take nothing, except his share in the partnership property, remaining after payment of the partnership debts,</p>

<p>In an action of trover for a wagon, brought by A against B, it appeared, that the wagon was attached, by the direction of B, while in the possession of C, as C’s property. A claimed that it was his property, and that be bad loaned it to C, for his accommodation. B claimed that it was C’s property, that it was ox-iginally obtained by him, in exchange for other property of his, and had been constantly in his possession and used as his own. In support of this claim, and to show the nature and character of C’s possession of the wagon, B offered testimony to show, that C, while he was in the possession and use of the wagon, declared to divers persons, that he was the owner of it, and offered to sell it as his own ; and that he had caused it to be repaired, on divers occasions, at his own expense: this testimony being unaccompanied with any evidence that these declarations and offers were made in the hearing or with the knowledge of A, or that such acts were authorised or assented to by him. Held, that both the acts and the declarations of Coffered to be proyed, were admissible; the former being such as usually flow from and accompany the ownership of personal property, and therefore tending to prove such ownership ; the latter, as showing the true nature and character of such acts, but not as otherwise proving the truth of what is asserted.</p> <p>It appearing, in such case, that A lived four or five, miles from C, and had, without objection or interference, permitted C to occupy the property in question; it was held, that proof of these circumstances was admissible, to show that A knew of the conduct of C in relation to the property, and assented to it; it being the province of the jury to determine their weight.</p>

<p>Where a husband and wife, in an action of ejectment, alleged, that the plaintiffs were well seised and possessed of the demanded premises; and on the trial, the evidence offered in support of their title, proved, that the wife was seised in her own right, and the husband only in her right; it was held, that it was not necessary for the plaintiffs to state in what manner they were interested ; and as the evidence showed that both “ were well seised and possessed,” it supported the declaration.</p> <p>Evidence of the loss of an instrument, in order to entitle the party to give secondary evidence of its contents, is sufficient, if it show, that he has done aU that could be reasonably expected of him, under the circumstances of the case, in searching for such instrument.</p> <p>Therefore, where the grantee of a deed was dead ; the administrator upon his estate made diligent search among his papers, and coffid not find it; his former partner, at the request of the administrator, made diligent search among the papers in the counting-room, where the deceased sometimes kept his private papers, and could not find it; and it did not appear, that it was ever in the possession of any other person than the grantee, after its delivery; it was held, that the loss of the deed was sufficiently proved.</p> <p>In the case of a lost instrument, it is incumbent upon the party to prove, not only its loss, but its existence as a genuine instrument, before he can give evidence of its contents.</p> <p>Where the party claiming under a lost deed, called one of the subscribing witnesses, who was unable, from want of recollection, to identify the instrument; but the party did not call the other, or prove his death, or otherwise account for his absence; it was held, that there was not a sufficient foundation for the admission of secondary evidence.</p> <p>Uterus, that if it had been shown, in such case, that the absent witness was dead, or in a situation where his testimony could not be had, secondary evidence would be admissible.</p> <p>Although a party claiming title to land, by virtue of a deed to himself, must produce it in evidence, or show its loss ; yet he may give in evidence copies from the public records, of all deeds necessary to trace the title to his immediate grantor, without producing the originals; and these copies are not only evidence of the contents of such deeds, but prima facie evidence of their existence as valid instruments, executed in the manner indicated by the copies.</p> <p>This rule, being a departure from the common law, growing out of our recording system, is restricted to instruments required by law to be recorded in our ⅜ public records.</p> <p>A party claiming title by descent from a grantee, is bound to produce the deed to such grantee, in the same manner as the grantee would be, if he were the party.</p> <p>But where the party, by showing the loss of thedeed, has established his right to give in evidence a copy from the public records, that copy, when thus produced, will have the same effect as any other copy of a deed from the same records.</p> <p>A new trial will not be granted, unless the court can see, that injustice either was, or might have been, done, on the former trial.</p> <p>Therefore, where the plaintiff, in an action of ejeetment, claimed title, first, by virtue of an absolute deed to him from the defendant, and afterwards, by virtue of a mortgage deed of the same property, to secure a debt which was out. standing and unpaid ; after a verdict for the plaintiff, it was held, on a motion for a new trial, that if the former deed was improperly received in evidence, yet as the latter deed showed a complete title in the plaintiff, which would alone entitle him to a recovery, a new trial ought not to be granted.</p>

<p>Though it is a general principle, that if a man having two parcels of land, to one of which he has no access except over the other, and he conveys the accessible parcel, reserving the inaccessible one, a right of way to the latter over the former is reserved to the grantor; yet it does not follow, that if he afterwards convey the inaccessible parcel to a third person, such person has, by force of the conveyance, the same right of way ; it will not pass as an appurtenance of the land.</p> <p>A right of way of necessity, in whatever manner it may have originated, is limited by the necessity which created it, and is suspended or destroyed, whenever that necessity ceases; and this, notwithstanding its continuance would be convenient to the party claiming it.</p> <p>in an action of trespass qu. cl. fr. the defendant justified under a right of way of necessity. The facts were these. A, being the owner of a certain tract of land, conveyed it, except a small wood-lot, to 2?, under whom the plaintiff claimed. After this conveyance, A had no other means of access to such wood-lot, than over the locus in quo. He then sold the wood-lot to C, under whom the defendant claimed, who did not reside in the vicinity of A A new public highway was afterwards laid out across the wood-lot, by means of which the defendant could conveniently transport his wood therefrom to market, but it was not convenient for him to use it, in conveying the wood to his dwelling-house, as the distance that way would be greater than across the locus in quo; but still he had, by means of such highway, free access, at all times, to the wood-lot from his dwelling-house. This was the state of things existing at the time of the alleged trespass. Held, 1. that Afs right of way of necessity over the locus in quo, did not of course pass to C; and if O, or thedefendant under him, had,at anytime, a similar right of way, it accrued to them respectively, by virtue of their own necessities, and was limited thereby ; 2. that upon the laying-out of the new highway, the defendant’s necessity ceased, and with it his right of way over the locus in quo ; 3. that consequently, his justification failed.</p> <p>In establishing a prescriptive right of way over the land of .another. every thing depends upon the character of the user. If exercised uninterruptedly, under a claim of right, and in the face of a proprietor sui juris, it may, in fifteen years, ripen into a right; but if done by the courtesy and license of the proprietor, and subordinately to his right as proprietor, it will be otherwise.</p> <p>Whether a witness has impaired the credibility of his testimony, by his de-meanour upon the stand, is a question for the jury to determine ; and if there be other evidence on the same point, the court may properly submit the whole to them ; nor is the court, in such case, bound to interfere, by its direction or advice.</p>

<p>The will of a testator, who died in 1832, contained the following provision: Si My will is, that my daughter S . the wife of G , should she outlive said G., her husband, shall have 500 dollars out of my estate; and if she should not outlive said Gher husband, then said 500 dollars shall be secured and equally paid Eo the sons of said S., my daughter, within ten years after my decease ; which is, with about 1000 dollars I have heretofore given my daughter S., all her patt of my estaie.” In assumjtsU, brought in August 1846, while S. and her husband were both living, by one of the sons of S'., against the executors of the testator, to recover the plaintiff's portion of the legacy, it was held, that the words £t within ten years after my decease,” did not limit or qualify the gift to the testator’s daughter; and that, on the death of her husband, at any time during her life, she would become entitled to receive it; consequently, no right of action had accrued to the plaintiff.</p>

This was an action on the case, in two counts: the first, for enticing away the apprentice of the plaintiffs, Charles Thomas; the second, for receiving such apprentice into the defendant’s service, and harbouring and detaining him, after he had left the service of the plaintiffs. The cause was tried, on the general issue, before the county court of Litchfield county, December term, 1845.

<p>m ERROR.</p> <p>A, a mechanic, entered into a contract with B, in consideration of a certain sum to be paid by B, to erect for him a dwelling-house and barn upon a building-lot containing about one acre. After the work was partially completed, B sold the lot to C, who assumed B’s obligations to A. Another contract was then made between A and C, by which A agreed to erect fences, &c, on the lot. Within sixty days after the stipulated work was finished, A lodged in the town-clerk’s office a certificate, stating, that he claimed a lien on the buildings and premises, describing the latter by particular boundaries, for the materials furnished and labour expended, under the above-mentioned contracts amounting to 1900 dollars. About three months previous to the lodging of this certificate, D, a creditor of B, attached the premises as B’s property, and eventually obtained judgment against B, and levied the execution upon the property so attached. A brought his bill in equity against D, making B and C parties, to enforce his lien and foreclose their respective claims. The superior court decided, that A had no lien for the erection of the fences, but established the residue of his claim. On a motion in error, it was held, 1. that the certificate described the premises on which a lien was claimed, with the requisite certainty; 2. that it was not necessary to specify in the certificate the amount expended upon the dwelling-house and the barn, separately; 3. that the certificate was not void, because it included in the amount specified therein the expense of the fences ; 4. that consequently, A had a valid lien for the amount expended on the dwelling-house and barn; 5. that this Hen embraced not only the buildings and the land covered by them, but also the land about the buildings, used with them, and necessary, or reasonably convenient, for their use, which, in this case, was the entire lot.</p>

This was an action of assumpsit, to recover moneys expended by the plaintiffs for the support of Mary Bryant, and George W. and Sarah-Ann Bryant. The defendants pleaded the general issue, which was closed to the court. Under this issue, the cause was tried, at Fairfield, February term, 1847, before Ilinman, J. The court found the following facts.

This was an action by the plaintiff, as holder 6f a check on the Stamford Bank, payable to one Waterbury, or bearer, drawn by the defendant. There were two counts in the declaration ; the first stating a delivery of the check, by the defendant, to Waterbury, and a subsequent delivery thereof, by Waterbury, to the plaintiff; the second, stating a delivery by the defendant, directly to the plaintiff. The cause was tried, at Danbury, October term 1840, before Williams, Ch. J. .

This was an action of assumpsit, by the plaintiff, as in-dorsee and holder of a promissory note, against the defendant, as indorser. The note referred to was made by Joseph Crawford dp Son, dated July 25th, 1839, for 600 dollars, payable to B. W. Lockwood, or his order, on demand, with interest.

This was an action on the case for fraud in the sale of certain patent-rights for an undivided fourth part of the states of Mississippi and Tennessee. The declaration originally contained three counts. It will be sufficient for the present purpose, to stale the first, and that in a form somewhat condensed.

This was an action of trespass quare clausum fregit, brought originally to the superior court; to which the general issue was pleaded. Held: that the grant extended to the cen-tre of the ditch. The rule above stated holds, though trees standing by the side of the river are mentioned as the point of beginning or ending. Lunt v. Holland, 14 Mass. R. 14th 151. So where the boundary is the bank. Hatch v. Dwight, 17 Mass. R. 289. 299.

This was an action of covenant broken. The declaration contained two counts.

This was a bill of foreclosure. On the 15th of April 1844, the defendant, being indebted to Catharine Newman in the sum of 1600 dollars, gave her his promissory note for that sum, and executed to her a mortgage of real estate to secure the payment of the note.

This was an action of debt on book ; which was referred to auditors, who reported the following facts. The plaintiffs are attorneys and counsellors at law, residing at New-Haven ; and their account was for professional services rendered and for disbursements made, by them, in the prosecution of a petition for a divorce, in behalf of Lucy A. Pendleton, against her husband, the defendant.

This was an action of assumpsit for the support of Elias Perkins, a pauper. The cause was tried, on the general issue, at New-Haven, January term 1847, before Storrs, J. On the trial, it was proved and not denied, that the supplies had been furnished to the pauper, and .notice duly given to the town of Bethany, as alleged in the declaration.

This was an information against Charles Barth, preferred originally by a grand-juror of the town of New-Haven, to a justice of the peace.

This was an action brought by the plaintiffs, as indorsees and holders of a promissory note, made by the defendant, for 2000 dollars, dated March 1st, 1844, and payable to Franklin Merrills, or order, four months after date. The defendant pleaded the general issue, with notice of special matter to be given in evidence, by way of defence.

This was a bill in chancery for an injunction against the town of Lyme, restraining them from opening a certain new road in that town. The bill stated the following case. Prior to the year 1824, there was no direct public highway from Essex ferry in the town of Lyme, through the town of Salem, to the city of Norwich.

This was an action for goods sold and delivered ; tried at New-London, September term, 1846, before Hinman, J. The plaintiffs claimed to recover for goods sold and delivered, at different times, to Seymour Davenport, who purchased them as agent, under the name of “ Seymour Davenport, agent.” But he did not inform the plaintiffs for whom he was agent; and there was no evidence that the plaintiffs, at that time, knew that he was the agent of the defendants.

This was an action of slander. The declaration contained two counts. In the first, the alleged slanderous words were — ,l He is a thief.” In the second, they were — “ He is a thief, and he stole the hay and hay-seed from Mrs. Dow’s barn.” The defendant pleaded the general issue, without notice of special matter in defence, or by way of justification.

This was an action for supplies furnished to William H. B. Cone and his family, they being paupers. The cause was tried, on the general issue, at New-London, September term, 1846, before Hinman, J. The jury returned a special verdict, finding the following facts. William H. É. Cone was the son of William P. Cone, who was the son of Henry Cone.

This was an action of book debt, brought originally by John T. Cahill against the Norwich and Worcester Rail-road Company. The cause was referred to auditors, who made a report in favour of the plaintiff, for 5336 dollars, 25 cents, with interest from the 1st day of December, 1843.

This was an action on the case, the declaration containing three counts.

This was an action of debt, brought before a justice of the peace, to recover of the defendants the sum of five dollars, fifty cents, for the passing of a schooner, called the Banner, owned by them, from the port of New-London to the port of Norwich, through the channel of the river Thames, drawing eight feet and eight inches of water.

This was an action of covenant, brought upon a certain agreement, executed by the parties, bearing date May 22nd, 1829.

This was a bill in chancery, brought by Edwin Gavit and others against Horace Whitaker, Jedediah Williams and George W. Clark, praying the court to establish an assignment made by Clark in trust for his creditors, and give the plaintiffs the benefit of it, and also enjoin Whitaker against the further prosecution of a writ of scire-facias which he had brought against Williams. The case stated in the bill was as follows.

This was an action of ejectment ; tried at Brooklyn, January term 1847 before Williams, Ch. J. On the 27th, of April, 1823, Eleazer Bowen, the father of the parties, being the owner of the demanded premises, by his deed of that date, conveyed them, for the consideration of 2000 dollars, to Silas and Anthony Bowen.

This was an action of trover, for certain articles of household furniture. The cause was tried, at Brooklyn, January term 1847, before Williams, Ch. J. The articles in question were part of the furniture of a public house in the city of Norwich, called the American House; which articles were originally the property of the plaintiff.

This was an action of replevin, brought to recover certain property, claimed as the property of the plaintiff, which had been attached, by the defendant, as deputy of the sheriff of the county of Windham, by virtue of a writ in favour of Benjamin B. Knight and Lorenzo E. Brown of Providence, in the state of Rhode-Island, against Eli B. Gleason.

The declaration and pleadings in this case, are concisely stated in 16 Conn. R. 568. & seq. It is there said, that “ the second plea terminated in an issue in factand as the object then was to obtain a decision upon those pleas only which terminated in issues in law, the second plea was “ laid out of the case.” The attention of the reader will now be directed to that plea and the proceedings under it.