Volume 19 — Connecticut Reports

This was an appeal from certain decrees of the court of probate, made and passed on the 1st day of December, 1846; one allowing and settling the account of the executrix of Preserved Marshall, deceased ; another authorizing and directing her to sell real estate, either at public or private sale, sufficient to raise the sum of 812 dollars, 91 cents ; and the other, accepting and approving her return of the sale.

This was an action of assumpsit, to recover the amount of a promissory note,, alleged to have been made by the defendant’s testator, with the usual money counts. The defendant pleaded the general issue, with notice, that under such issue she would offer evidence to prove that the note described in the plaintiff’s declaration was given without consideration, and was obtained by fraud. The cause was tried at Hartford, January term, 1848, before Storrs, ./.

IN ERROR. This was a bill of foreclosure, brought by Araha Newton and Laura, his wife, against Timothy Abbe and others. Held: that only the real value - of the consideration can be recovered. James v. Morgan, 1 Lev. 111. Flayer v. Edwards, Cowp. 112. The (goldsmiths Company v. Carter, Id. 110. Jestons v. liroohe, Cowp. 793. Cutler v. How, 8 Jl/tm. /¿. 257. 250. Baxter & al. v. I'VWe.s, 12 Aftws. /Í. 305.

This was a bill in chancery, praying for a foreclosure of mortgaged premises. Joseph Brown, one of the defendants, alone appeared, and filed a cross-bill and answer. On a hearing of the cause before the superior court, at Hartford, January term 1848, on the bill, cross-bill and answer, the following facts were found ; which are all that are material relating to the questions made by the parties.

This was an action of assumpsit, brought by Rachel Caldwell, adm inistratrix of John Caldwell, deceased, against Charles Sigourney, as the surviving maker of a promissory note. Held: that such a diversion of the fund was a fraud upon third persons, and that a bond given by the defendants to effect that object, was void. In this case, both Lloyd and the defendant may avoid the note in suit, on similar ground. Of the two cases this is the stronger one. 2.

This was a bill in chancery, praying for a set-off. At the time this bill was brought, there were two separate and distinct actions pending in the superior court in favour of Charles T. Bull, one of the present defendants, against Lucy Ripley, the present plaintiff; one of which was an action of book debt, and the other an action of account.

This was an action of book debt. The defendants were described in the writ as “ Steiger Enz & Co., of the town East- Windsor, [in this state,] and Bourry de Invernáis & of New-York” alleging that the individuals of the last named company were unknown to the plaintiffs.

IN ERROR. This was a bill in chancery, brought originally to the county court, by Bethuel Phelps, against Hiram Osborn, Arnold Hamilton, William Abbe and Daniel B. Dorman. The object of the bill was to procure the correction of a mistake in a contract for the sale of a certain tract of land, and a decree for the specific execution of the contract.

This was a bill in chancery. For a statement of the allegations in the bill and the prayer for relief, see 17 Conn. R. 531. The original decree dismissing the bill having been reversed, by the decision of this court, there was a new hearing of the cause before the superior court, at Litchfield, February term 1848 ; when the following facts were found.

This was an action for a libel. The declaration alleged, that there being sundry suits at law pending in the courts of Litchfield county, brought by the plaintiff against Syl-vanus Merwin, and various controversies and matters of difference existing between them, it was, on the 16th of October 1845, agreed between them to refer all such suits, controversies and matters of difference to the final arbitrament of three persons, under a rule of court; that such reference being…

This was an action of disseisin, brought to recover possession of certain lands situated in the town of New-Milford. The cause was tried, at Litchfield, February term 1848, before Church, Ch. J., upon the plea of the general issue. On the. trial, the plaintiff claimed title, by virtue of the levy of an alias or second execution, which, by the officer’s return thereon endorsed, appeared to have been legally levied upon the demanded premises.

This was an action of assumpsit, brought by Thomas Bull, as indorsee of a promissory note, dated December 14th 1841» payable to Truman Orton, or order, on demand, against Amos E. Allen and Vincent Judson, as makers thereof. The declaration alleged, that the instrument in question was the joint and several promissory note of the defendants.

This was an action of ejectment for three parcels of land lying in Stamford. The defendant pleaded the general issue, which was closed to the court.

<p>The plaintiff being the uncle and step-father of the defendants, who resided in his family, executed and delivered to them, without any valuable consideration, a quit-claim deed of his real estate, containing the following clause immediately after the description of the premises: “reserving to myself the use and improvement of said property, during my natural life ; also to dispose of any part thereof, should it be necessary for my support.” The deed was executed by the plaintiff, under a belief that such reservation was legal and effectual to enable him to sell such part of the property as should be necessary for his support. On a bill in chancery to have this conveyance set aside, on the ground of a mistake of the plaintiff as to its legal effect, without shewing that he needed the avails of the properly, or any part of it, for his support, it was held, that until the exigency contemplated by the reservation had happened, the application for relief was premature; and there-fote, the bill was dismissed.</p> <p><⅞⅞. Whether a reservation, in a voluntary conveyance in fee-simple, of the right of the grantor, during his natural life, to dispose of any part of the property conveyed, be void and inoperative, as repugnant to the terms and general intent of the conveyance ?</p> <p>Qu. Whether the mistake of a party as to the legal effect of an instrument executed by him, is, of itself, a ground of relief in equity against such instrument ? In this state, a reservation in a deed of land, of the use and improvement of the property conveyed, during the grantor’s life, is valid and effectual.</p>

<p>Where the declaration contained two counts; one in trespass, for putting filthy substances into a quart of rum in a jug, whereby the rum was rendered valueless and wholly spoiled ; the other in case, for putting filthy and noxious substances into a quart of rum contained in a jug, intending to cause the plaintiff to drink thereof; and tjje plaintiff drank of the mixture, supposing it to be rum, and was thereby made sick and much injured in his health; it Was held, 1. that these counts were, on the face of them, for causes of action essentially different, and could not be joined, either by the common law, or upder the statute of 1836; 2. that the defendant might take advantage of such misjoinder, by writ of error.</p> <p>Non-joinder as plaintiffs.Plea in abatement.</p>

<p>Where a parcel of land is sold for a specific purpose, and conveyed, without reservation, the law will not imply, in favour of the vendor, a right, of way of necessity over or through such land, inconsistent with the object of the purchase.</p> <p>Where a right of way of necessity exists, in favour of any person, it is not a fixed and located way, absolutely vested in him, but is qualified by the necessity in which it originated, and is varied or ceases, as that necessity varies or ceases.</p> <p>An action on the case for a nuisance cannot be sustained, unless: the plaintiff shows a particular injury to himself, distinct from that which he suffers, in common with the rest of the community.</p> <p>Therefore, where the grievance'complained of, consisted in the erection, by the defendant, of a dam in a navigable creek, by means of which the plaintiff was prevented from passing along such creek, from his residence above to his land below, and the converse; it was held, that this obstruction was not the subject of a private action.</p>

<p>On Monday, the 1st of June, the Bridgeport Bank cashed for D, a check, drawn in the city of New-York, on the Manhattan Company, payable to and indorsed by D. On Thursday, the 4th, it was sent, with a package of other papers, from Bridgeport, by the captain of the steam-boat running daily from that place to New-York; the steam-boat leaving Bridgeport about 1 o’clock, P, M., and arriving in New-York early in the evening of the same day. The Bank of New- York, to which it was sent for collections received it, and presented it for payment, on Saturday, the 6th, when payment was refused, and the check was protested, and due notice thereof given to D. It appeared, that at the time of this transaction, there was, and for years before, had been, an established usage in the Bridgeport Bank, not to send packages of money, checks, &c. to New- York, by the mail, but by the captain of the steam-boat, once a week, generally on Thursday, and not oftener, unless there was an unusual accumulation of paper, which did not at this time exist; and of this usage £) was well informed. In an action brought by the Bridgeport Bank against D, as the indorser of such check, it was held, 1. that such usage was sufficient evidence of an agreement between the parties not to insist upon the usual rule of law regarding the transmission of checks; 2. that such usage was not inoperative, as being unreasonable, or as wanting any of the requisites of a good custom ; 3* that there was no improper delay in the presentment of the check in New-York, as it was not received, by the Bank of Neto- York, until the 5th, and was presented the next day ; 4. that in the computation of interest on the check, as against D, six per cent, only was to be allowed. [One judge dissenting, on the last point.]</p>

<p>No particular time is prescribed by law within which the damages assessed for the laying-out of a new street in the city of Bridgeport, shall be paid to the persons entitled to receive them, or deposited in the city treasury for their use; it being only necessary this be done in a reasonable time, and before the street is opened.</p> <p>Therefore, where a new street in that city having been laid out and established, and the damages assessed, an order was passed, by the court of common council, on the 16th of March, directing that the street be opened on the 1st of April following; the damages assessed were paid into the city treasury, on the 11th of May; the party entitled to them received them on the 21st of the same month ; and on the 5th of June, a warrant was issued by order of the court of common council, for the removal of a building owned by such party, standing in the street and constituting a nuisance therein; it was held, 1. that the damages were deposited in the city treasury within a reasonable time ; 2. that if otherwise, the reception of the damages, by the party, was a waiver of the objection, and a ratification by him of what had been done; consequently, that the order and warrant were not void, on account of such delay in depositing the damages.</p> <p>Where the court of common council passed an order, directing that a street, previously laid out and established, be opened on a certain day ; it was held not to be essential to the validity of such order, as against a party affected thereby, that he should have had notice to be present at the meeting at which it was passed.</p> <p>Where a street had been laid out, by exact measure and definite bounds, and every building within its limits was specified and appraised, and these proceedings had been recorded; an order of the court of common council was passed, and a warrant was issued, predicated upon such proceedings, requiring the removal of all such buildings, and parts of buildings, from the street, at the expense of those persons respectively, whose duty it was to have removed them; it was held, 1. that such order and warrant were not void, by reason of their generality; 2. nor because the removal was tobe effected at the expense of said persons.</p> <p>The court of common council of the city of Bridgeport, has, under the charter and by-laws of the city, full authority over its streets, legally established, and opened ; and it is the duty of that body to see that such streets are cleared of nuisances and obstructions.</p>

This was an action of trespass, for an injury to a building. The declaration contained three counts ; an abstract of which is given in the opinion of the court. The defendants pleaded Not guilty, with notice of special matter to be given in evidence by way of defence.

This was an action on the case, brought by Judson Win-ton, as administrator of Sarah E. Benedict, deceased, to recover for the conversion, by the defendant, of certain articles of household furniture. The declaration contained three counts. The first was in trover, in common form, founded upon a lawful possession by the plaintiff.

IN ERROR, This was an action of book debt, brought originaliy by Blackman & Betts, against Hurd & Hoyt, On a motion for that purpose, Eliphalet Swift, Esq., was appointed sole auditor, to audit and adjust the accounts between the parties, and to make his award thereon. He found and reported the following facts. Most of the several items charged in the plaintiff’s account were admitted by the defendants; but they claimed, to have made payment in full.

This was an action of trespass quare clausum fregit, with a count m case, under the late statute. The cause was tried at Fairfield, April adjourned term 1848, before Ellsworth, J. On the trial, it was proved and admitted, that the plaintiff was the owner of a certain piece of land in the town of Stamford, bounded North by a highway ; he having acquired a title thereto, by a deed from Stephen B. Provost, executed and delivered to the plaintiff, in 1843.

This was an action brought by Dulles, Aertsen & Fisher, as the indorsees of a promissory note, against William De Forest & Co, and Milo Lewis, as the makers. The cause was tried, at New-Haven, January term 1848, before Hinman, J. On the trial, the plaintiff's, in support of their declaration, offered in evidence the note therein described, which was as follows : $2000. “ Naugatuck, Oct. 25th, 1842.

This was an action on the case, for the non-delivery of -certain lumber and shingles, which were, by the plaintiffs, put on board the brig Energy, Major R. Frisbie, master, owned by the defendant, at the port of Wilmington, in North-Carolina, to be transported to Point a Petre, in the island of Gauda loupe, and there delivered to Jules Fluriot, the consignee of the plaintiffs.

This was an action of assumpsit, founded on an order drawn by C. iS. Dunning, on the defendants, to deliver certain goods specified therein, with the prices annexed, to the plaintiffs, as they should order them from time to time ; which order was accepted, by the defendants. The declaration contained the common counts, and six special counts, stating the contract made by the defendants, in different forms.

This was an action of ejectment for a parcel of land in the city of New-Raven. The cause was tried, on the general issue, at New-Raven, January term 1848, before Hinrnan, J. To establish a title in the plaintiff, he introduced evidence to prove, and claimed that he had proved, the following facts. On the 18th of December 1829, John $.

This was an action of assumpsit, to recover for necessary expenses incurred in the support of Charlotte Lines, an infant child, claimed to be an inhabitant of the town of Bethany. The cause was tried, at New-Haven, January term 1848, before Iiinman, J. On the trial, it was admitted, that Zebulon Lines was a settled inhabitant of the town of Bethany, and died, on the 1st of November 1843.

This was an information for uttering and putting off, as true, a counterfeit bank bill of the Randolph Bank.

This was an action on a bond, given by the defendants, ■executors of the last will and testament of David White, ■deceased, to the plaintiff’s predecessor in office, as judge of ¡probate for the district of Chatham in this state, in the form prescribed by law for executors, The defendants, having prayed oyer of the bond and condition, pleaded performance generally. The plaintiff, in his replication, assigned the following breaches. 1.

This was an action of trespass vi el armis, alleging an assault upon the plaintiff, beating and wounding him ; to which the defendant pleaded the general issue, with notice of special matter in justification. The cause was tried at New-London, September term 1847, before Storrs, J. On the trial, the plaintiff claimed to have proved, that the defendant assaulted and beat him, in the manner alleged in the declaration.

This was an action of ejectment, for one undivided half of a parcel of land, and a store thereon, lying on Water street, in the city of Norwich. The cause was tried, on the general issue, at Norwich, March term, 1848, before Church, Ch, J. The plaintiff claimed title to the demanded premises, by virtue of the levy of an execution in his favour against Albert Smith.

This was an action of assumpsit. The declaration con-several counts; one of which was on a promissory note, . under the defendants hands, by them well executed, dated the 20th day of May, 1837, in and by which they promised the plaintiff to pay to him, on demand, for value'received, the sum of fifty dollars, with interest from date, as would by said note fully appear, could the plaintiff produce and show the same here in court; but the plaintiff says, that said note having…

IN ERROR. Tins was a complaint, preferred by a grand-juror of the town of Norwich, to a justice of the peace, against the present plaintiff in error, for a violation of the statute of 1846,… Held: in Barth v. The State, that the expression store or shop, as used in that information, imported but one place; yet here the expression is house, store and shop, making the same distinction between store and shop, as between house and store.

This was an action of assumpsit. The declaration contained thfee counts. The first was for work and labour performed By the plaintiffs, in building a certain dwelling-house, out-house and fixtures, for the defendant, at his request; and also for divers materials furnished in the doing and Completing of said Work, at his request.

This was an appeal from a decree of the court of probate. On the 2d day of May, 1846, Warner Howard made his last will, and thereby, after making provision for his wife, and giving a few specific legacies to his eldest son, disposed of the residue of his estate as follows: “ I give, devise and bequeath all the residue of my estate, real, personal and mixed, to my minor children, viz. Hiram Howard, Mary Howard, Charles Nathan Howard, Julia Maria Howard, Emily Jane Howard, and…

This was an action of trover, for certain articles of household furniture, brought by Griffin Clark, against Horace Whitaker, Henry L. Clark, Amasa C. Hall and Edmund, Perkins. A new trial having been granted in this cause, pursuant to the decision in 18 Conn.

IN ERROR. John Crawford brought an action of assumpsit, before a justice of the peace, against the town of Un on, to recover for a coffin, furnished by him for one Cynthia Weld, the deceased wife of Harrison Weld, a resident of that town, and a person poor and destitute of property. Samuel W. Moore, one of the select-men of the town, appeared before the justice, and, as such select-man, pleaded, that the defendants never assumed and promised.

IN ERROR. This was an action on the case, brought by Samuel D. Anderson, against Darius Starr jun., before the county court, for a breach of warranty regarding a horse.

This was an action of ejectment, brought by Lucy Jane Gilbert and Cordelia Gilbert against Albert Chapin. The plaintiffs are the only children of William Gilbert, deceased.

This was an action of trespass quare clausum fregit. Held: and now holds, owns and possesses, all the right, title and interest of said Robert Robbins in said portion of said premises, with the rights, privileges and appurtenances thereunto belonging: that the defendant, by reason of said grant and conveyance from said Robert Robbins sen. to said Robert Robbins jun., had, and of good right…

IN ERROR. James Noble brought his action of book debt against Giles Remington, before a justice of the peace. Held: as an inevitable result, that book debt would not lie in a like case ; and that the remedy was by “ another kind of action.” Punderson v. Shaw, Kirby, 150. Dyer, J. dissenting. But Hart v. Smith has been since overruled; and it is now held, that indebitatus assumpsit is the proper remedy in a case of this kind.

The prisoners, Solomon Dowd and Lucina Coleman, were charged, in the indictment, with the murder of Niles Coleman, the husband of Lucina Coleman, by means of poison. In the first count, it was averred, that they mixed a deadly poison, called corrosive mercury sublimate, in a solution of camphor, and gave him the mixture to drink, which caused his death.

This was an action of book debt, brought by Avery Atkins, against John Churchill and Henry A. Seymour, partners, under the firm of Churchill & Seymour. The defendants pleaded a set-off, alleging, that the plaintiff, before the commencement of this suit, was, and still is, indebted to Churchill, one of the defendants, by a judgment of the county court of Hartford county, which he.

in ERROR. This was a complaint, made by a grand-juror, to a justice of the peace, containing three counts.

IN ERROR. Tins was an appeal from three orders of the court of probate for the district of Farmington, made in the settlement of the estate of Preserved Marshall, late of Avon, deceased : one allowing and settling the administration account of Ruth Marshall, the widow of the deceased, and the surviving executor of the will; another, for the sale of the real estate of the deceased ; and a third, accepting and approving the return of sale.

IN ERROR. Tins was a bill in chancery, seeking the recovery of a sum of money paid by the ¡plaintiffs to the defendants, or one of them,… Held: by said Clark, as the agent of the plaintiffs, and remained in his possession, at Hartford, as the property of the plaintiffs, at the time of the drawing of said lottery, on the day and year last aforesaid, at Providence, in the state of Rhode-Island: that at the drawing aforesaid, - said ticket containing the combination aforesaid,…

This was a bill in chancery for an account of the proceeds of mortgaged property, for the application thereof to the claims of the plaintiffs respectively, for liberty to redeem, and for other relief.

This was an action of trover for four leather-top carriages.

<p>In this state, a quit-claim deed is a primary conveyance, and vests in the releasee all the interest, even in fee, which the releasor possesses.</p> <p>A school district, in the town of M., had been, for more than thirty years, in the adverse, exclusive possession of a piece of land, on which they had erected a school house, and used it for the purposes of a school, during that period. A, the adjoining proprietor, claiming a title to the premises from his ancestor, executed his quit-claim deed thereof, to B, who received it, with the full knowledge, that the district was thus in the adverse possession of the premises. It was held, 1. that a quit-claim deed is an alienation, within the meaning of the statute against selling pretended titles; 2. that from a possibility of a dissolution of the district, A did not possess a reversionary interest, which he could convey by deed, as it did not appear, that the district held under a title derived from A, or his ancestor; 3. that the district, as disseisors, had acquired a perfect title, in fee, to the premises ; 4. that B was liable to the penalty of the statute, for receiving the deed.</p>

<p>IN ERROR.</p> <p>This was a complaint, preferred to a justice of the peace, by Filch Ferris, described as a grand-juror of the town of Canaan, against Ransom Wickwire, for a violation of the statute regulating the sale of spiritous liquors.</p> <p>The complaint contained eight counts ; but it is not necessary to state any of them, except the third, fifth and seventh. In the third count, it was alleged, that the defendant, at Canaan, on the 10th of November 1847, sold spiritous liquor, to Truman P. Stoddard, a person addicted to habits of intoxication, the defendant knowing him to be so addicted. The fifth count alleged, that the defendant, at the time and place aforesaid, sold spiritous liquor to George Fellows, a person addicted to habits of intoxication, the defendant knowing him to be so addicted. The seventh alleged, that the defendant, at the time and place aforesaid, sold spiritous liquor to Harlow Deming, a person addicted to habits of intoxication, the defendant knowing him to be so addicted.</p> <p>The defendant being brought before the justice, and being put to plead, alleged, that the complaint and matters therein contained, were insufficient in law ; praying judgment, &c. The prosecutor replied, that the complaint and the matters therein contained, were sufficient in law. The justice thereupon rendered judgment as follows : “ This court; having heard the arguments of the parties, and duly considered the same, is of opinion, that the aforesaid complaint of Filch Ferris, grand-juror, and the matters therein contained, are sufficient in law; and it is thereupon considered, that the prisoner pay a fine of lu dollars on each count in the aforesaid complaint, amounting to 80 dollars, together with costs of prosecution, taxed,” &c.</p> <p>From this judgment, the defendant appealed to the county court, and the cause was entered in the docket at its term in December 1847. At this term, Leman Church Esq.,attorney for the state, appeared to prosecute the complaint; and the ■defendant also appeared, and filed the following written motion : “ The defendant in court prays judgment of said complaint, that the same be erased and dismissed, and he no longer holden to answer thereto, because, he says, that said complaint is signed, and was preferred against him, by one Filch Ferris, as a grand-juror of said town of Canaan, and is not otherwise signed, and was not, and is not, in any other manner, preferred against the defendant. And the defendant says, that in fact said Fitch Ferris was not, when he signed said compiaint, and when he preferred the same, a grand-juror of said town ; and was not legally appointed to serve in the office of a grand-juror, by said town ; nor in any manner, lawfully authorised to sign and prefer said complaint. All which the defendant is ready to verify ; wherefore he prays judgment, that said complaint be erased and dismissed, and he no longer holden to answer thereto.”</p> <p>This motion being opposed by the prosecutor, the court refused to erase the cause from the docket, on the ground that the error ought to appear on the face of the record, and that parol testimony was not admissible, under this motion, to show that Filch Ferris was not a grand-juror.</p> <p>The defendant then, at the same term, filed a plea in abatement, alleging the same facts, as in the motion to erase; praying judgment that said complaint be dismissed, and he no longer holden to answer thereto. The proesecutor objected to the acceptance of this plea; and the court refused to accept it, because the defendant had demurred to the complaint, in the justice’s court, before he offered this plea.</p> <p>The cause was tried, before the county court, in April 1848, on the plea of Not guilty.</p> <p>On the trial, the prosecutor, after having offered George Barse, to prove one act of selling spiritous liquor, under the third, fifth and seventh counts in the complaint, claiming such evidence to be admissible, for the purpose of proving that Stoddard, Bellotes and Deming were addicted to habits of intoxication, and that such habits were known to the defendant, before the selling complained of, offered other witnesses, to prove, that the defendant had, for a long time before the offence complained of, been in the habit of selling to those persons spiritous liquors, to he drunk by them to excess. To the admission of this evidence, the defendant objected ; but the court admitted it.</p> <p>The prosecutor then inquired of one or more of the witnesses respecting several acts of intoxication, by Stoddard Fellows and Denting; and after such inquiry, offered to prove, by such witness or witnesses, that from his or their knowledge of those persons, and of their habits, they were addicted to habits of intoxication ; or he made the inquiry, whether they .were, from what he or they knew of their habits, addicted to habits of intoxication, or not. To this evidence the defendant objected ; but the court admitted it.</p> <p>The prosecutor, in reply to the objection, and in his remarks to the jury, disclaimed the introduction of this evidence, after the testimony of Barse to the proof of a single sale to each of the three persons before-named, for any other purpose than to show the knowledge of the defendant of the habits of those persons. And the court particularly instructed the jury, that any proof of more than one sale to either of said persons, was admissible only to show the knowledge of the defendant of their habits of intoxication ; and that the prosecutor, having offered Barse to prove a single act of sale to each of (hose persons, was confined in his proof to those particular instances of sale; and that if the testimony in regard to other sales did not prove a knowledge, on the part of the defendant,of the habits of intoxication of those men, it was to be laid out of the case.</p> <p>Several of the witnesses summoned to appear and testify in behalf of the state, disobeyed the subpoena served - upon them, and were arrested and brought before the court, by virtue of a capias issued for that purpose. After a verdict against the defendant, on the third, fifth and seventh counts, the prosecutor claimed to tax against him the costs, amounting to 19 dollars, 60 cents, which had accrued by virtue of such capias. This was objected to, by the defendant, but was allowed by the court.</p> <p>The defendant filed a motion in arrest of judgment, alleging, that the several counts, on which the defendant was found guilty, were wholly insufficient in the law to warrant the court to render any judgment thereon.</p> <p>A writ of error being brought, by the defendant, in the superior court, it was reserved for the advice of this court.</p> <p>contended, 1. That a complaint, signed and preferred, by any other person than an informing officer, is absolutely void. Kingsbury v. Clark, 1 Conn. R. 406.</p> <p>2. That the written motion to erasé the cause from the docket, when filed, became a part of the record ; and it was the duty of the court to inquire into the truth of the facts alleged, for the purpose of determining its jurisdiction. A question to the jurisdiction may be raised, by a motion to erase, as well as by plea; and whenever the court discovers, at any stage of the proceeding, that it has no jurisdiction, it is bound to erase the cause from the docket. 1 Sw. Dig. 606. Ketland, q. t. v. The Cassius, 2 Dali. 365. 368. Commonwealth v. Davis, cited in Commonwealth v. Porter, 2 Pick. 559.</p> <p>3. That the court erred in rejecting the plea in abatement. In the first place, the fact that the complaint was not signed by proper authority, is matter of abatement, as going to the jurisdiction. Hinman v. Taylor, 2 Conn. R. 357. Secondly, the cause was a new one in the county court, and the defendant might there plead anew.</p> <p>4. That the defect in the complaint, shown both in the motion to erase and in the plea, was not waived, by the demurrer before the justice. In the first place, a demurrer is no plea, but a mere excuse for not pleading; and therefore, admits nothing, except for the purpose of trying the de-Secondly, in criminal proceedings, a demurrer is set down, in the order of pleading, after pleas to the juris- . s ' r J diction, and before pleas m abatement. 4 Bla. Com. 333. Chill. Crim. Plead. 439. Thirdly, in practice, a demurrer is put in, for the mere purpose of taking the cause up by appeal ; and the statute, which allows an appeal in crimina1 causes, is to be libe tally construed, so as to give the appellant. the full benefit of all exceptions, which he might make before the justice. The defendant has a right to demand a trial by jury of the question now under consideration. Fourthly, as an exception of this character goes to the jurisdiction of the court, so far from its being waived by a demurrer, it may be made even after verdict. Commonwealth v. Davis, 2 Pick. 561. 563. Fifthly, although in civil causes matters dehors the record cannot in general be brought before the court, except bv a regular plea ; yet in criminal proceedings, the practice is much more liberal, and motions to abate or quash the indictment, are of every day’s occurrence, both for extrinsic and intrinsic causes. Chitt. Crim. Plead 301. The People v. Monroe Oyer and Terminer, 20 Wend. 108. Sixthly, the defendant, in his motion and plea, alleged, that Fitch Ferris was not, when he signed the complaint, a grand-juror ; and the only question then was. whether parol testimony was admissible to show that he was not a grand-juror. This was a mere question of fact. If the town record showed a regular appointment., the defendant might show, by parol, that Ferris was not an elector, or not twenty-one years of age. and therefore ineligible. Such proof must necessarily be parol.</p> <p>5. That evidence, showing that the defendant had sold spiritous liquor to Stoddard, Fellowes and Deming, at other times than those specified in the complaint, was improperly admitted. In the first place, if it proved anything, it proved a distinct offence, which might be a ground for a distinct prosecution. Secondly, it did not conduce to prove the commission of the offence charged in the complaint: one crime can never be proved, by evidence of the commission of another. Thirdly, if the object was, as claimed by the pros- . ccutor, merely to show the defendant’s knowledge of the habits of those men, it could have been attained, by showing acts of sale to them, by others, in his presence, without proving a sale by himself, the only effect of which would be, to prejudice his case in the minds of the jury.</p> <p>contended, 1. That according to our practice, the court never dismisses a cause for want of jurisdiction, on a motion to erase it from the docket, unless the objection appears upon the face of the proceedings. Where the fact upon which the jurisdiction depends, lies out of the cognizance of the court, it must be presented, by a proper plea, and brought before the court according to law. 1 Conn. R. 170. Nye v. Liscombe, 21 Pick. 263. 265. Simonds v. Parker, 1 Mete. 508.</p> <p>2. That the complainant was a grand.juror defacto, and the proceeding regular on its face. Extrinsic evidence was therefoie inadmissible to show a defect in his appointment. Plymouth v. Painter, 17 Conn. R. 585. If a writ be served by an officer de facto, it will not abate. Bucknam v. Ruggles, 15 Mass. R. 180. Fowler v. Bebee, 9 Mass. R. 231. Commonwealth v. Fowler, 10 Mass. R. 290. 301.</p> <p>3. That a demurrer is a plea in bar; and the defendant, by such a plea, before the justice, and by his appeal to the county court, has waived all objection to the jurisdiction.</p> <p>4. That the evidence introduced to show, that the defendant had been in the habit, before the offence complained of, of selling spiritous liquor to Stoddard, Fellows and Denting, to be drunk to excess by them, was admissible, to show, that the defendant knew they were addicted to habits of intoxication.</p>

<p>The right of a person acting colore officii, to the office in which he acts, can. be tried only in a proceeding to which he is a party, directly presenting that question ; and not in a collateral way. between third persons.</p> <p>Therefore, where A had entered into a recognizance for his appearance at'an adjourned court held by ajustice of the peace, in a prosecution by B, acting as a grand-juror, for a statute offence ; and an action was afterwards brought, by the town treasurer, against d, cm such recognizance; it was held, that A could not show, by way of defence, that B was not chosen a grand-juror until after six others had been chosen.</p> <p>The record of a court of competent jurisdiction imports verity, and cannot be contradicted.</p> <p>Therefore, where the record of ajustice of the peace, in a criminal proceeding of which he had cognizance, stated, that the defendant was called, and made default of appearance ; and the defendant, in a subsequent suit, offered testimony to prove, that he, in fact, appeared at the time and place appointed, and then temporarily withdrew, by the permission and at the request of the justice; it was held, that such testimony was not admissible.</p>

<p>Where a complaint for a statute offence, was preferred to a justice of the peace, by a person claiming to be, and acting asa grand-juror; the defendant demurred to the complaint, and thereupon judgment in chief was rendered against him ; he then appealed the cause to the county court; after which, the proceedings being regular on the face of the record, he moved the court to erase the cause from the docket, on the ground that the complainant was not a grand-juror; it was held, 1. that the exception, if otherwise available, was waived, by the demurrer; 2. that the application was made too late.</p> <p>And where the same matter was pleaded in abatement, in the county court; it was held, on similar- grounds, that the plea was not receivable.</p> <p>An officer de facto, acting colore officii, is as well qualified to act, while thus in office, as if legally appointed and duly qualified.</p> <p>Therefore, where the defendant in a complaint preferred against him, by a person claiming to be and acting as a grand-juror of the town of C, on the trial, offered evidence to prove, that such person was the last of seven persons appointed at the preceding town meeting of C, and was therefore not legally appointed ; it was held, that such evidence was inadmissible.</p> <p>Where the prosecutor, on the trial of a complaint for selling wine and spiritous liquor to R, alleged to be a common drunkard, offered evidence to prove, that JR, during the preceding year, had purchased liquor at other places than the one mentioned in the complaint, and had become drunk thereon ; it was held, that such evidence, though not connected with proof of the defendant’s knowledge of such facts, was admissible.</p> <p>And it seems, thaf the sale of spiritous liquor to a common drunkard, is an offence within the statute, whether the seller knew him to be a common drunkard or not.</p> <p>Where the complaint alleged, that the defendant sold wines, spiritous liquor, or other intoxicating beverage, to R, he being a common drunkard; it was held, that the terms, wine and spiritous liquor, were not of the same import as other intoxicating beverage ; consequently, the offence was charged in the alternative, and the complaint, on that account, insufficient.</p>

<p>To suffer a ram rto go al large, or out of the owner’s enclosure, within the meaning of the 6th section of the statute relating to sheep, implies consent or willingness of the mind.</p> <p>Though the statute intends to enforce strict care, on the part of the owner, in restraining his ram; it does not require such a degree of care, as amounts to an obligation on him to restrain the animal, at all events, unless prevented by some uncontroulahle cause; nor any greater care than is usually taken by careful and prudent farmers in like cases.</p> <p>The want of such care, either in restraining the animal, or in reclaiming it when at large, would afford sufficient proof; that it was suffered to go at large, within the meaning of the statute.</p>

This was an action on the case, alleging, that the defendant, on the 10th day of August 1847, did negligently, carelessly and unlawfully set up and erect a certain gate, of great size and weight, viz, about 15 feet long and 5 feet high, and'about 500 pounds weight; and as the plaintiff was afterwards, on the same day, walking over the ground near said gate, as he lawfully might, said gate fell over upon the plaintiff; whereby, and by reason of the carelessness and negligence…

This was a case agreed upon by the parties, without action, and submitted to the superior court, under the statute of 1848. Slat. 109, 10. §211. ⅛ The* facts were these. On the 24th of October, 1848, Edward W. Atwood and Levi Crouch were manufacturing gerniah-siiver spectacles; ,#thé partnei^mp having commenced* on the 21st of June previous.

IN ERROR. This was a petition, brought by Catlin and others, to the county court, at its term in December, 1845, praying for alterations in the highway leading from the North-East part of Harwinton, to Bristol.

<p>The plaintiff was employed, by the defendants, a school district, to teach their school, for four months, at 18 dollars per month of 20 days; to commence between the 15th of November and the 1st of December, 1845. la consequence of a school-house not being provided, by the district, he did not commence teaching until the 17th of December ; and he continued teaching for 65 days only; his wages for this time amounting to SBclollars, 50 cents. On the 3rd of November) 1846, after the commencement of this suit, and after costs to the amount of 11 dollars, 20 cents, and interest on the principal to the amount of 1 dollar, 25 cents, had legally accrued, the defendants paid the plaintiff said sum of 58 dollars, 50 cents, for his wages, but refused to pay him anything towards the interest or costs. Held, 1. that if there was an express agreement to pay interest — a matter left doubtful by the finding — it might be recovered ; but if otherwise, the interest being merely incidental to the debt, and the latter being paid in full, a recovery for the former could not be sustained; 2. that the defendants not having taken advantage of the payment made, by plea, the plaintiff was entitled to judgment for nominal damages, which would, of course, carry the costs.</p> <p>Matters of defence, arising after the commencement of the suit, cannot be pleaded in bar of the action generally but must, when they have arisen before plea or continuance, be pl uded to the further maintenance of the suit; and when they have arisen after issue joined, they must be pleaded pivis dar-rein continuance.</p>

IN ERROR. The plaintiff in this case, as the administrator of the estate of Mary Smith, late of New-Canaan, deceased, exhibited his administration account to the court of probate for the district of Norwalk, for settlement. The account was as follows: “ The estate of Mary Smith, in account with Sherman Smith, adminr.

This was an action founded on the statute of 1842, entitled, “An Act to abolish imprisonment for debt.” The declaration contained two counts.

This was an action of indebitatus assumpsit for money had and received ; tried, on the general issue, at Danbury, October term, 1848. The plaintiffs are the executors of the last will of David Northrop, late of Sherman, deceased. He died in April, 1832 ; and his will was duly proved and approved. Sally Graves is the wife of the defendant, and is still living. The plaintiffs, in support of their claim, offered in evidence, 1.

This was an action of assumpsit, to recover certain sums of money expended by the plaintiffs for the support of Laura Barlow, the wife, and of Josia.fi Barlow and Sally Barlow, the children, of Samuel Barlow, alleged to be settled inhabitants of the town of Westport, residing in Reading, being destitute of property, and reduced by sickness to want and distress.

This was an action on the case, to recover damages for injuries done to the plaintiff’s oxen, by the locomotive of the defendants, through the carelessness of their servants.

IX ERROR. This was an action on a promissory note, alleged to have been made by 8. Selleck, in his life-time, dated the 30th day of August, 1831, in and by which he promised to pay the plaintiff, on demand, the sum of 34 dollars ; which note had been lost or destroyed, by time and accident, and. could not, therefore, be produced in court. The declaration also contained a count for money had and received, and the other common counts.

IN ERROR. This was an appeal from a decree of the judge of probate, for the district of Newtown, passed on the 9th of May, 1846,… Held: by Mr. Belden, in trust, for that town. After the appointment of Peck, as a commissioner, and . , , -1 while he was acting in that capacity, he was duly appointed, and has ever since been, administrator on the estate of Henry W. Tucker, deceased, one of the late firm of Beecher & Tucker, to whom, as partners, Sherman Was indebted, by…

<p>In an action brought by A, as administrator of B, against C, A, to show his right to sue, produced his letter of administration, granted by thejudgeof the probate district of W., in which B, the intestate, was described as “ late of E. in the district of W.and it appeared, that B, at the time of her death, in 1845, lived in that part of the town of IÍ’. which, in 1846, was incorporated as the town of E, and constituted a distinct probate district, the whole of the town of W. being previously in the probate district of W; it was held, that as such description referred to the right territory, though since changed in name and relations, it was sufficiently correct to render the letter of administration admissible in evidence.</p> <p>D, being conservator of B, and having the moneys of B in his hands, entered into an agreement with E, by virtue of which E received such moneys, which were to be repaid to D, if needed for B’s support, and after the death of B, were to be paid over to the heirs of E’s mother, the sister of B. After the death of B, A, B’s administrator, brought an action against E, to recover such moneys remaining in his hands. Held, that as the agreement between D and E could not controul the estate of B, after B’s death, A was entitled to recover.</p> <p>The payment of interest on a debt is a sufficient recognition of that debt, as due at the time of such payment, to take the case out of the statute of limitations.</p>

<p>In construing a remedial statute, which has for its end the promotion of important and beneficial public objects, a' large construction is ¡to be given, when it can be done without doing actual violence to its terms.</p> <p>The phrase laying out, as used in the statute relating to highways, includes not only the initiatory act of laying out the road by the select-men, but also the acceptance of the survey by the town, and the recording thereof.</p> <p>Therefore, where several persons in the town of W. brought their petition to the coumy court for a highway, averring therein, that the select-men had neglected and refused to lay out the same, and cited the town to appear; and the respondents appeared, and filed their answer, that the select-men had not neglected and refused to lay out the road, but that the select-men had proceeded, before the date of the petition, to lay out the same, and had made a survey thereof in writing, which survey they had presented to a legal meeting of the town, and the town voted not to accept the same, and that no fur- . ther proceedings had ever taken place in relation thereto since that time; it was held, that the answer to the petition was insufficient, and that the county court had jurisdiction of the case.</p> <p>The period of twelve months, until the expiration of which a highway, after having been laid out, shall not be laid open or occupied, (Slat. p. 340. ed, 1838,) must be intended to commence from the time when the way shall have been legally established, by the combined measures of the select-men and the town.</p>