Volume 20 — Connecticut Reports

<p>This was an action of assumpsit, brought by Amos Townsend, jun., as treasurer of the city of New-Haven, to recover of the defendants the damages assessed for the laying-out of St. John street in that city.</p> <p>The cause was tried, on the general issue, at New-Haven, January term, 1849.</p> <p>In support of the undertaking set forth in the declaration, the plaintiff introduced the following writing, signed by the defendants: “Mayor, aldermen and common council. We, your petitioners, would ask your honourable body to lay out St. John street, and, by appraisers, according to law, to rate and value all damages of laying-out, and such property as lies in said street, for which we, the signers of this petition, agree to pay to the city treasurer.” The plaintiff also claimed to have proved, that a certain parcel of land lying within the city of New-Haven, had formerly been laid or thrown open for public use, by the proprietors thereof on each side, and had been, by them, opened and dedicated to the public, as an open street or public highway, running East and West, and known by the name of St. John street; that the proprietors had erected dwelling-houses and other buildings on each side of said street; and that said street had been thus opened and occupied as a public street, for ten or twelve years, and its limits marked and defined, by buildings and fences, on both sides thereof. It was also claimed and admitted, that one Nelson H. Gaston owned, or claimed to own, a narrow strip of land, about one or two feet in width, running parallel with and near to the side-walk on the South side of the street; which Gaston claimed he had not relinquished or dedicated to public use, as part of the street. The plaintiff then claimed to have proved, that the sole object of the defendants in making the application above stated, was, to remove the claim of Gaston to said strip of land, which lay in the street in front of their lands and buildings, and interfered with their free passage one way and the other. They therefore desired said street to be laid out or accepted, by the city authorities, as a public street, as well for their own individual benefit, as for the public use.</p> <p>For the purpose of proving that said street had been laid out and accepted as a public street, within the meaning of the writing signed by the defendants, the plaintiff introduced in evidence, a copy of the proceedings of the mayor, aldermen and common council of the city of New-Haven, at a meeting held on the 26th of August, 1847. This document purported to be a survey and laying-out of the South line of St. John street, specifying the termini, with the intermediate courses and distances; “taking into said street a narrow strip of land, owned by N. H. Gaston, beginning &c., and extending about 140 feet in length, and varying from 1 to 3 feet in width.” At a meeting of the freemen of the city, held on the 20th of October, 1847, this survey and laying-out was approved; and St. John street, so surveyed and laid out, was accepted as a public highway. It was proved, that some or all of the defendants, as well as Gaston, were present, when such survey of the South line of the street was made ; and no one claimed to have the North side surveyed, or objected to the proceedings. The sum assessed to Gaston as damages, was 375 dollars.</p> <p>Upon the facts so claimed and proved, the plaintiff insisted, that he had right to recover in this action.</p> <p>The defendants claimed, and requested the court to charge the jury, 1. That if the defendants were liable at all, no action could be maintained against them, by the present plaintiff, but only by the city of New-Haven. 2. That St. John street had not been laid out, within the meaning of the defendants’ undertaking; because the North line of the street was not run; because the width of the street was not defined; because it was not found to be of common convenience and necessity; and because the proceedings were not recorded in the records of the town of New-Haven. 3. That the undertaking of the defendants was without consideration, and against the policy of the law.</p> <p>The court charged the jury, 1. That if from the facts claimed and proved, the defendants were liable upon their undertaking, this action might be sustained, by the present plaintiff. [This was stated proforma.]</p> <p>2. That the survey of the South line of St. John street, the taking and appraising of the land of Gaston, and the declaring of the land occupied as a street to be a public street, with the assent of the defendants, as claimed by the plaintiff, was a sufficient acceptance of the street so dedicated to the public, and a sufficient laying-out of the same, within the meaning of the writing signed by the defendants, although the proceedings had not been recorded on the records of the town of New-Haven, and although said street was not declared to be of public convenience and necessity.</p> <p>3. That if the defendants made their application for the laying-out of the street, as well for their own individual benefit as for the use of the public, as the plaintiff claimed; this constituted a good consideration for the promise of the defendants, and such promise was not void as being against the policy of the law.</p> <p>The jury returned a verdict for plaintiff, and the defendants moved for a new trial for a misdirection.</p> <p>contended, 1. That the plaintiff had no legal right to sue upon the contract declared on. Piggott v. Thompson, 9 Bos. & Pul. 147. Gilmore v. Pope, 5 Mass. R. 491. Bainbridge v. Downie, 6 Mass. R. 253. 258. Gunn v. Canting, 10 Johns. R. 387. Spencer v. Huntington, 6 Conn. R. 312. Bissell v. Spencer, 9 Conn. R. 267. Buckbee v, Brown, 21 Wend. 110. Sailly v. Cleveland, 10 Wend. 156. Ham. on Part. 3. Chitt. Cont. 53.</p> <p>2. That the consideration upon which the promise was made, has not been performed : in other words, the consideration has failed. First, it is not found, that the highway was needed. Secondly, no survey or laying-out has been recorded in the town records. Thirdly, there has been no highway surveyed, by the mayor, aldermen and common council of the city. Beardslee v. French, 7 Conn. R. 125. Hinckley v. Hastings, 2 Pick. 162.</p> <p>3. That the consideration, if performed, was not such an one as would sustain the promise. If the highway was needful, it was the duty of the city authorities to open it, and pay for it; and a promise to pay money, in consideration that the promisee will do that which it is his duty to do, is of no validity. Chitt. Cont. 52.</p> <p>4. That the promise of the defendants was against the policy of the law. Chitt. Cont. 673. 677. Fuller v. Dame, 18 Pick. 472. Commonwealth v. Sawin, 2 Pick. 547. Parks v. Boston, 8 Pick. 218.</p> <p>contended, 1.That the consideration of the defendants’ promise was sufficient. In the first place, they, from their local situation, were principally interested in the laying-out, and would be peculiarly benefited thereby. It would not only promote their convenience, but it would render their property more valuable. Secondly, the defendants received at least a benefit in common with the other citizens, and were jointly liable with them for the expense. This is a sufficient consideration for a several promise. Thirdly, the transaction may be regarded as a promise to pay the city treasurer, for the benefit of Gaston, and as an agreement with Gaston to pay him, if he would dedicate his land.</p> <p>2. That there was nothing in the case contrary to public policy. The law favours the laying-out of highways; and its policy is, to make those pay who receive the benefit.</p> <p>3. That the laying-out of St. John street, was legal. The charter of the city gives power to the mayor, aldermen and common council to lay out and alter highways; and they are the sole judges of the convenience, and necessity.</p> <p>4. That the action will lie in the name of the city treasurer. Here it is to be considered, in the first place, that the prom-isee is often contingent, when the promise is made; as in the case of rewards offered in advertisements. Secondly, the plaintiff need not have advanced the consideration. If A agree with B, to pay C a sum of money, C may sustain the suit. Fel-ton v. Dickinson, 10 Mass. R. 287. Cabotv. Haskins, 3 Pick. 83. Thirdly, where a promise is made to a treasurer, by the name of his office, he can bring the suit. Fisher v. Ellis, exr., 3 Pick. 322. Thompson v. Page, 1 Metc. 565. In the case last cited, the treasurer was to be appointed after the promise.</p>

<p>This was an action on a promissory note, made by the defendant, payable to the order of W. M. B. Gorham, and by him indorsed to the plaintiff.</p> <p>The cause was tried, on the general issue, at New-Haven, January term, 1849.</p> <p>The defence set up by the defendant, was, that the note was altered and made negotiable, after it was signed by the defendant, without his consent or knowledge. To establish this defence, the defendant offered himself as a witness; to which the plaintiff objected. It was admitted, that the General Assembly of this state adjourned sine die, on the 28th day of June, 1848, at 12 o’clock, M.; and that this action was commenced and the writ served on the defendant after-wards, on the same day, at 4 o’clock, P. M. The court thereupon sustained the plaintiff’s objection, and excluded the defendant as a witness in the cause. The defendant, claiming that this decision was erroneous, moved for a new trial.</p> <p>contended, That the defendant was a qualified witness, by virtue of the 141st section of the act relating to “ civil actions.” Stat. 86. It is there explicitly declared, that “ no person shall be disqualified as a witness, in any suit or proceeding in law or equity, by reason of his interest in the event of the same, as a party or otherwise.” This was the law of the state, when the cause was tried, at the term of the superior court, in January, 1849 ; the revised statutes having taken effect on the 1st of January, 1849. Stat. 627. § 1. 5.</p> <p>This result is inevitable, unless it is avoided, by virtue of the 2nd section of the act of 1848, the first section of which act contains the precise provision just quoted from the revised statutes. The second section of the act of 1848, referred to, provides, that nothing contained in that act shall affect any suit then pending. This part of the case, then, turns on the question, whether this suit was pending, at the time referred to in the act of 1848; and this involves two enquir-ies ; first, when did that time occur; and secondly, was this suit then pending.</p> <p>The counsel for the defendant insisted, first, that the expression, “ now pending,” referred to the time when the act was signed by the governor, which was on the 24th of June. The law was then complete. This was the “ now'’ intended, and not a future time. But secondly, if this expression referred to the rising of the General Assembly, that event took place before the commencement of this suit. The former was at noon, on the 28th of June; the latter, at 4 o'clock in the afternoon of that day. Thirdly, it was competent for the defendant to shew, by parol evidence or otherwise, the time of day when these events respectively occurred. The maxim that there is no fraction of a day, is a mere fiction of law, which always yields to the matter of fact, where justice between the parties requires it. Roe d. Wrangham v. Hersey, 3 Wils. 274. In re Richardson, 6 Law Rep. 396. Brainerd v. Bushnell, 11 Conn. R. 24. Williams v. Cheesebrough, 4 Conn. R. 356. Cutler v. Wadsworth, 7 Conn. R. 6. In re Welman, 7 Law Rep. 25. In the service of writs especially, it is the constant and universal practice to enquire in what part of the day-the hour and minute, if necessary-the service was made.</p> <p>contended, 1. That the time referred to, in the 2nd section or proviso of the act of 1848, is the time when that act took effect-that is, the rising of the General Assembly, (Stat. 413. § 5.) which was on the 28th of June.</p> <p>2. That as this suit was commenced on the same 28th of June, it was pending at the rising of the General Assembly. This position depends upon the meaning of the words, “ from the rising of the General Assembly:" and this is to be determined by the record, and not by oral testimony. What then does the record say? It says, that the act was passed at the session of the General Assembly in 1848; and that the rising of the General Assembly took place on the 28th day of June of that year-not at any particular hour of that day. As the record says, that the rising of the General Assembly was on the 28th of June, without designating any particular time of the day, and as the act takes effect from the rising of the General Assembly, it takes effect from and after the 28th day of June, and not before. The legislature, in using the language from an act done, use it as meaning the same as from the day of an act done. done.</p> <p>It is not a legitimate subject of enquiry, at what particular part of the day an act of the legislature was completed. From the opening of the session, on a day specified, to its close, is one day-not to be divided. [The counsel here referred to the last day of the last session of Congress, which in fact continued from 10 o’clock, A. M. of the 3rd of March, to 7 A. M. of the 4th of March ; and important bills were passed and appointments made, after 12 o’clock of the intervening night; and yet the record stated all these transactions as of the 3rd of March, the validity of which has never been questioned.] The law knows no fraction of a day. When a computation is to be made after an act done, the day of doing the act is to be excluded. Chitt. Cont. 730. Lester v. Garland, 15 Ves. 248. Avery v. Stewart, 2 Conn. R. 69. Bigelow v. Wilson, 1 Pick. 485. Pellew v. Wonford, B & Cress. 134. (17 E. C. L. 343.) Sands v. Lyon, 18 Conn. R. 18.</p> <p>The law of 1848 was not to take effect until after an act done. That act to be done was the rising of the General Assembly, which took place on the 28th of June. Consequently, the law in question did not take effect until after the 28th of June; and as this suit was commenced on that day, it was pending when such act took effect. Of course, the case was within the proviso, and the defendant had no right to testify.</p> <p>3. That the question as to the admissibility of the defendant as a witness, was not controuled, by any provision in the book called the "Revised Statutes,” but was governed exclusively, by the act of 1848, so often referred to. It is claimed by the defendant, that the last-mentioned act was repealed by the act, entitled “An Act to carry into effect the revised statutes;" (Stat. 627. § 2.) that by the 141st and 143rd sections of the revised act for the regulation of civil actions, (Stat. 86.) the provisions of the act of 1848 were reenacted, with no other restriction than that they should not affect any suit pending on the 27th of June, 1848; and that by virtue of the 1st section of the former act, all the provisions in the book became, on the 1st of January, 1849, the statute laws of the state. Stat. 627. § 1. To this we have a plain and simple answer. It is this-the General Assembly of this state never did, at its session in 1848, or at any other time, make the enactment contained in the 141st and 143rd sections above referred to; and of this fact the court will judicially take notice. Further, what purports to be a law of the General Assembly of the year 1848, entitled “An Act to carry into effect the revised statutes,” never was passed by the General Assembly, and never received the sanction of the legislature; and of this also the court will judicially take notice. This being so, it is of little consequence to enquire how the interpolated provisions became incorporated in the revised statutes, as published. If it is claimed, that the committee made the alteration in the aforesaid act of 1848, and, in the name of the General Assembly, enacted what purports to be a law, found on the 627th page of the printed volume, labelled "Revised Statutes of Connecticut, 1849,” then we say, that the committee, either singly or combined, had no right, in the name of the General Assembly, to make statute laws to govern the people of this state, or to affect their legal rights; and this for two reasons. First, the General Assembly never attempted to authorise them to do so; and secondly, if it had, such authority would have been void. [The counsel then proceeded to fortify his position, and to answer objections.]</p>

This was an action of assumpsit against Thomas Shailor, Thomas Shailor, jun., and Daniel Ventris, as joint indorsers of three promissory notes, all made by John Elwell, payable to Thomas Shailor, jun., or order, and indorsed by the defendants.

This was an action of trespass de bonis asportatis, with a count in trover for the same cause of action ; brought by John Kirtland against Charles W. Snow and Samuel Colt. On the trial of this cause, at the August term of the superior court, 1848, the following facts were found, the issue being closed to the court. Snow had taken the property in question, by virtue of legal process in favour of Colt, against one Wilson Beckwith.

This was an action of trespass quare clausum fregiy; tried on the general issue, at Middletown, February term, 1849. The plaintiffs claimed title to the locus in quo, under a deed from Richard Brown, dated December 15th, 1791, and sundry mesne conveyances from his grantees and those claiming under them, to the plaintiffs.

This was an action of assumpsit, in several counts. In the first, the plaintiffs alleged, that the defendant engaged them to make for him 100 surgical instruments, called surgical adjusters, for each of which he promised to pay them 20 dollars, within a reasonable time; that the plaintiffs afterwards, from the 9th of July, 1844, to the 31st of March, 1845, continued to work, in performance of this contract, on their part, and to make and manufacture said surgical adjusters,…

This was an action of trover, for a quantity of lumber; tried at New-London, on the general issue, September term, 1849.

This was an action of assumpsit, brought to recover the rent of certain dwelling-houses, and a cotton factory, leased to the defendants.

This was an action of covenant broken. The declaration was substantially as follows: That on the 3rd day of March, 1843, at Salem, by a certain indenture then and there made between the plaintiff, on the one part, and the defendants, on the other part, the plaintiff did demise, lease and to farm let unto Henry C. Rogers, [one of the defendants,] his the plaintiff’s farm in said Salem, called the Wood-bridge farm, for the term of one year from the first day of April, 1843,…

This was an action against the defendants, as indorsers of an inland bill of exchange; tried, on the general issue, at Norwich, March term, 1849; when the plaintiffs obtained a verdict. The defendants thereupon moved that the verdict be set aside, on the following ground.

This was an action on the case, alleging, that the defendant, by means of a dam on his own land, had raised the water of a stream flowing through the adjoining land of the plaintiffs, four feet higher than he had any right to raise it, and thereby caused it to inundate the plaintiffs’ land. The cause was tried, on the general issue, at Norwich, March term, 1849.

This was scire-facias in a process of foreign attachment, demanding of the present defendant the amount of a judgment of the county court, rendered in that process, in the plaintiff's favour against George W. Clark. The defendant pleaded, that he was not the debtor of Clark; on which issue was joined. On this issue, the cause was tried, at Norwich, March term, 1849.

This was an action of assumpsit, for money had and received, by the defendants, for the use of the plaintiffis; and for money paid, laid out and expended, by the plaintiffs, for the defendants. The following are the facts in the case, agreed to by the parties. The plaintiffs are a body corporate and politic, incorporated by the General Assembly of this state.

This was a bill in chancery, praying for an injunction against obstructing the navigation of vessels to the plaintiff’s wharf, in the waters of New-London harbour. The cause was referred to a committee, who made their report to the superior court, holden, by adjournment, at New-London, in July, 1849. The material facts, embraced in the report, are the following.

This was a case agreed upon by the parties, and submitted to the superior court, under the statute of 1848. George Moore, of Lyme, in this state, having made his will, bearing date, February 25th, 1846, died, on the 18th of November, 1848, leaving his wife, Emily Matilda Moore, and four children, one of whom was then of adult age, and the other three, minors.

This was a bill in chancery, brought by Silas Bowen against Amasa Bowen and the heirs at law of Eleazer Bowen, deceased; praying for the confirmation of the plaintiff’s title to certain real estate, which the plaintiff claimed under a conditional deed from the said Eleazer; and also praying for an injunction against the further prosecution of an action at law to recover possession of the same, brought by Millard Bowen, one of the defendants.

This was an action on the statute relating to highways and bridges, alleging, that on the 1st day of April, 1847, a portion of the defendants’ road, in Eastford, West of and adjoining to a certain bridge, being so raised above the adjoining ground as to endanger the safety of travellers, was not in good and sufficient repair, for want of a good and sufficient railing; and that, by reason of the wrongful neglect of the defendants to erect and keep up thereon a good and…

This was an action on a policy of insurance against fire, upon the plaintiff’s dwelling-house, several barns and other buildings. The cause was tried before the superior court in the county of Tolland, at the October term, 1848.

This was a bill in chancery, brought by William E. Imlay and Lucretia W. Imlay, his wife, and William against Hezekiah Huntington, making also… Held: subject to the order and sole controul of the said Sarah Morgan after marriage, and payable to her at her request; and that of the residue and remainder of said legacies or property to be received, under, or by virtue of the wills of said James Morgan, Esq., and said Mary Morgan, after the deduction of said sum of ten thousand…

This was a bill in chancery, brought by John T. Mann, receiver of the Canajoharie and Catskill Rail-road Company, against Annie E. Cooke, executrix of the last will and testament of Edward P. Cooke, deceased; praying for a decree ordering her to pay to the plaintiff the amount remaining due and unpaid upon forty shares of the stock of said company, held by said E. P. Cooke, in his life-time, but now belonging to his estate.

This was an action of ejectment, to recover possession of a certain tract of land situated in the town of Suffield. On the trial of the cause to the jury, it was admitted, that the property originally belonged to one Seth Granger, and that the defendant was in possession. The plaintiff claimed title, by virtue of the levy of an execution in her favour against Granger; and introduced the judgment and execution, with the officer’s re turn thereon.

an action of trespass quare clausum fregit; tried at Hartford, on the general issue, September term, 1849. On the trial, the plaintiffs claimed title, by a non-existing grant, the original existence of which they claimed to have shown, by a variety of facts and circumstances, in connexion with a long possession by them.

This was an action of trover for the conversion of a large quantity of spectacles and silver spoons. At the term of the superior court, holden at Hartford, in September 1840, the defendants were defaulted and heard in damages. Upon such hearing, it was admitted, that the goods were taken by order of the defendant Ward, (Smith, the other de- fendant, acting as his agent,) and were never returned to the plaintiff.

was an action of trespass for taking and carrying away a certain ox-wagon. Held: as matter of law, to have been returned to the plaintiff at the time it was attached and placed under his shed ; and as he had caused the wagon to be attached as the property of the defendant, he was estopped from claiming that he had title to it, when it was taken from his possession, by the defendant; and that the title of the…

IN ERROR. This was a petition to the county court, brought by Lemuel Humphrey and others, against the towns of Wethersfield and Glastenbury, alleging, that the ferry across Connecticut river, between those towns, called Pratt's ferry, had been discontinued, whereby the public travel was incommoded, and praying for the relocation of such ferry, or the establishment of a new one, and the laying out of such highways leading thereto as should be necessary.

This was an action of slander, for charging the plaintiff with adultery with Caroline Edward, the wife of Moses D. Seward.

<p>IN ERROR.</p> <p>This was a Writ of error from the judgment of the county court, rendered upon an information against Alphonso Barnes. There were three counts in the information, the two first of which were abandoned upon the trial before the justice. The third count was as follows :</p> <p>“ And said grand juror further complains, that heretofore, to wit, on or about the 24th day of February 1849, at said Bristol, the said Alphonso Barnes did sell, and did offer to sell, by himself and by an, agent, wines, spiritous liquors, and other intoxicating beverage, to one Boylston Whitney, of said Bristol, the said Boylston Whitney being then and there addicted to habits of intoxication, and the said Alphonso Barnes then and there knowing him to be so addicted, and the said Boylston Whitney being also then and there a common drunkard ; against the peace and contrary to the statute in such case provided.”</p> <p>The defendant having been convicted before the justice, appealed to the county court, where the cause was tried before a jury. Upon that trial, the attorney for the state introduced Whitney as a witness, who testified, that on the 23d day of February 1849, he purchased of the defendant, Barnes, two quarts of whiskey, and paid him therefor.</p> <p>And for the purpose of proving, that Whitney was a common drunkard, at the time of the sale, the attorney offered evidence to prove, that, for more than two years previous to the sale, he was intoxicated, whenever he could procure spir-itous liquors; which habit continued into the month when the liquor mentioned in the information was sold to him. And to prove that this habit continued, and that there had been no reformation previous to the sale, he further offered testimony to prove, that he became intoxicated with the liquor purchased on the 23d day of February, and so continued, for several days ; and that he was intoxicated, at different times, for several weeks thereafter.</p> <p>The defendant objected to any testimony showing, that Whitney was in a state of intoxication after the 23d day of February. But the court decided, that the evidence need not be confined to the day of sale, but that acts of intoxication might be shown for a limited period afterwards, but only for the purpose of showing that he was a common drunkard at the time of sale.</p> <p>The jury having returned a verdict against the defendant, he filed a bill of exceptions, and also a motion in arrest of judgment, for the insufficience of the information, and after wards brought his writ of error in the superior court. The questions presented upon the record were reserved for the advice of this court.</p> <p>contended, 1. That the information was bad. First, for duplicity. It charges two distinct offences-1. that the defendant sold; 2. that he offered, to sell. Stat. 600. § 13. It also alleges, that the defendant did the acts, 1. by himself; and 2. by an agent. Commonwealth v. Symonds, 2 Mass. R. 103. State v. Nelson, 8 N. Hamp. 163. Secondly, fir uncertainty. It is uncertain of which offence the defendat has been convicted. 1 Chitt. Cr. L. 169. 172. Rex v. Horne, Cowp. 682. Thirdly, for repugnancy. The sale could not be made, by the defendant himself, and by another, as his agent. 1 Chitt. Cr. L. 174. 200.602. 2 Sw. Dig. 414.</p> <p>2. That the testimony to prove acts of drunkenness after the sale, was improperly admitted.</p> <p>contended, 1. That the information was not obnoxious to the defects imputed to it. First, the allegation of a sale of divers kinds of liquors, is not double. The People v. Adams, 17 Wend, 475. Barth v. The State, 18 Conn. R. 432. 410. Secondly, the allegation of a sale by himself and by an agent, is not double or repugnant. The State v. Caswell, 2 Humph. 399. Commonwealth v. Towner, 8 Mete. 527. y v. Perry, 5 N. Hamp. R. 504. Thirdly, the allegation of a sale, andan offer to sell, did not make the information double. Commonwealth v, Tuck, 20 Pick. 356.360. Commonwealth v. Eaton, 15 Pick. 273. Whart. Prec. Indict. 130. Fourthly, duplicity cannot be set up after verdict. Kilbourn v. The State, 9 Conn. R. 500. Commonwealth v. Tuck, 20 Pick. 361. King v. Howard, 1 Cush. 141. Arch. Cr. Pl. 53.</p> <p>2. That the evidence excepted to was properly admitted. This is analogous to a question of insanity, with regard to which it is held, that the evidence need not be confined to the time the act in question was done ; though the point to be determined is, what was the state of mind at that time ? 2 Greenl. Ev. 650, § 690. Grant v. Thompson, 4 Conn. R. 208. Kinne v. Kinne, 9 Conn. R. 102. Dickinson v. Barber, 9. Mass. R. 225.</p>

<p>This was an action of slander, for charging the plaintiff with dishonesty, at different times, and in various forms of speech, which were set forth in eleven counts of the declaration. The words stated in the first count were&emdash;“ He (the plaintiff.) is a damned thief. He has robbed me of more than a thousand dollars; and he isa damned robber.” The words stated in the second count, alleged to have been addressed to Hiram Woodruff, father of the plaintiff', were&emdash;“ I am going to see a lawyer, to have your son (the plaintiff,) arrested and put in jail, for swindling me out of my properly. He has swindled me out of two thousand dollars. He has made one thousand dollars a year in the business, (in partnership with the defendant.) and put the money in his own pocket. I will make a public prosecution of it ; and it will kill him.” The words set forth in the third count, were&emdash;“ I have lost two thousand dollars, by his rascality. The damned rascal has sunk two thousand dollars for me.” Those stated in anothercount, were&emdash;“ I have been to Wesiville, and found, that he has been dishonest there with his employers; and that he has taken money from their drawer, and put it into his own pocket.” According to the allegation in the other counts, the words were varied in the form of expression, but were substantially of the same import.</p> <p>The defendant pleaded the general issue, with notice that he should give in evidence matter justifying the charge.</p> <p>The cause was tried at Hartford, January term, 1850; and ilia jury returned a verdict for the plaintiff to recover eight hundred dollars damages.</p> <p>The defendant moved in arrest of judgment, alleging that William Bigelaw, one of the jurors empanneled to try the cause, during the trial, conversed with A ver Sperry, who was not one of the jury, and said to him, “ We (the jury) have got a tough case. It is the strangest that ever was in the world : people will come right into the court-house, and stand up, and lie before the public, and make it out of whole cloth. The case is all on one side, and no two ways about it:” meaning that the witnesses called by the defendant had testified falsely, and that the case was all on one side in fa-vour of the plaintiff. This juror afterwards united with his fellows in rendering the verdict against the defendant. The court found the matters slated in this motion in arrest to be true ; but of which of the parties, or which side, or of whose witnesses, the juror used this language, the court did not find, beyond what is implied from such language, and the verdict rendered, and the fact that the defendant’s witnesses were then under examination. The court also found, (what was not averred in the motion in arrest.) that the defendant had no knowledge whatever of said language or conduct of the juror, until after the verdict was rendered.</p> <p>The defendant moved for a new trial, because the verdict was against the evidence in the cause, and because the damages were excessive. The question as to the sufficiency of the motion in arrest, and of the matters therein alleged and found as a ground of arrest, as well as the questions arising on the motion for a new trial, were reserved for the advice of this court.</p> <p>The evidence on both sides was detailed in the motion ; but it is too voluminous to be inserted here; and perhaps if is not necessary fora light understanding of the points decided, that it should be. The testimony of the plaimifi’s witnesses as to the speaking of the words&emdash;substantially at least&emdash;was full and explicit; and the defence, either as a justification or in mitigation of damages, was the ground principally contested.</p> <p>con tended, 1. That the motion in arrest ought to prevail. In the first place, the juror’s misconduct, if properly shown, is sufficient to set aside the verdict. He violated his oath ; spoke to one not of the jury about the merits of the cause; avowed a predetermined opinion against one of the parties; and that party was manifestly the defendant. His witnesses were then under examination, and were evidently referred to, by the juror. Did he charge the plaintiff’s witnesses with lying, and scout all his proof, and then give a heavy verdict in his favour? Secondly, the motion in arrest is sufficient. An exception for misconduct in a juror, during the trial, or afterwards before verdict, is not presumed to be waived ; because the party has had no opportunity to take advantage of it. Hence, it is not necessary to allege, that the ground of exception was not known.</p> <p>2. That the verdict was against the evidence in the cause. [Here the evidence was minutely examined.]</p> <p>3. That the damages were excessive.</p> <p>contended, 1. That the motion in arrest, ought not to prevail. In the first place, from the facts stated in the motion, the court cannot see, that the alleged misconduct of the juror had, or might have had, an effect unfavourable to the party moving in arrest; and there fore, it will not grant the motion. Pettibone & al. v. Phelps & al. 13 Conn. R. 445. 450. Secondly, the alleged misconduct of the juror was not occasioned by the prevailing party, or any one in his behalf. Pettibone & al. v. Phelps & al. 13 Conn. R. 451. Bishop v. Williams, 2 Fairf. R. 495. Thirdly, the motion is insufficient, for want of an allegation that the alleged misconduct of the juror was before the trial closed. Pettibone & al. v. Phelps & al. 13 Conn. R. 442. Selleck v. Sugar Hollow Turnpike Company, 13 Conn. R. 459.</p> <p>2. That a new trial will not be granted for a verdict against evidence, unless it appears that the verdict was very dearly and palpably against the evidence in the cause. Stat. 90. ch. 13. § 155. Bacon v. Parker, 12 Conn. R. 213. Palmer v. Hyde, 4 Conn. R. 426. Lafflin & al. v. Pomeroy, 11 Conn. R. 440. Bulkley v. Waterman, 13 Conn. R. 328. Here the court cannot see, from the evidence disclosed, that a new trial would change the result.</p> <p>3. That where the evidence in a cause is contradictory, and its effects depend upon the credibility of the witnesses, and the probability of the facts narrated by them, the verdict will not be set aside as against evidence, although the preponderance, in the opinion of the court, is against the verdict. Douglass v. Tousey, 2 Wend. 352. Keeler v. Fireman’s Insurance Company, 3 Hill 251. Ex parte Bailey, 2 Cowen, 479. Astor v. Union Insurance Company, 7 Cowen, 202.</p> <p>4. That in an action for a libel or slander, a new trial will not be granted, on the ground of excessive damages, unless they are so flagrantly excessive, as to show, that the jury have been actuated by passion, partiality, or prejudice. Clark v. Binney, 2 Pick. 113. Moody v. Baker, 5 Cowen, 351. Shute v. Barrett, 7 Pick. 82. 86. Douglass v. Tousey, 2 Wend. 352. Coffin v. Coffin, 4 Mass. R. 1.</p>

<p>This was an information for setting fire to and burning a dwelling-house. The prisoner pleaded Not guilty; on which issue the cause was tried, at Hartford, January term, 1850.</p> <p>On the trial, it appeared, that the building burned was built by Norman Warner, and designed for a dwelling-house ; was constructed in the usual manner of a dwelling-house, in all particulars ; and was finished, except that it was not painted, as it was intended to be, and the glass was not set in the sash which had been placed in the upper half of one of the outer doors. The building stood by itself, and Was not appurtenant to any other building ; but it had not been occupied.</p> <p>Upon these facts the prisoner’s counsel claimed, and asked the court to instruct the jury, that the prisoner could not be convicted. The court did not so instruct the jury ; but left the question whether the building was a dwelling-house, for their determination, as a matter of fact.</p> <p>The jury found the prisoner guilty; and he thereupon moved for a new trial.</p> <p>contended, 1. That the enquiry whether the building burned was a dwelling-house, was a question of law only, and should not have been left to the determination of the jury, as a matter of fact, without a previous statement of its opinion upon the law. By the common law, courts are bound to instruct the jury on every question of law raised in the trial of a criminal cause. Rex v. Dean of St. Asaph, 21 How. St. Tri. 1039. United States v. Wilson, Bald. R. 99. United States v. Battiste, 2 Sumn. 240. 243. Commonwealth v. Knapp, 10 Pick. 478. 496. Our statute is explicit to the same effect. Stat. 260. Here, there was no controversy about the facts; the case turned wholly upon a matter of law.</p> <p>2. That the court should have charged the jury directly, that the building burned was not a house, in such a sense as to be the subject of arson. A house, in this sense, must be a dwelling-house. 2 Stark. Ev. 49. Commonwealth v. Posey, 4 Call, 109. But an unfinished, uninhabited building, although intended for a dwelling-house, is not one within the statute. 2 Russ. Crimes, 556, 7. Rosc. Cr. Ev. 249. Ellsmore v. St. Briavells, 8 B. &Cress. 461. (15 E. C. L. 266.) Thach. Cr. Ca. 240.</p> <p>contended, 1. That the matter submitted to the jury, was properly submitted as a question of fact. There is no rule of law from which, in connection with the facts stated in the motion, the court could deduce the conclusion, that the building was, or was not, a dwelling-house ; and therefore, the question was one of fact. This position has been established in analogous cases. See Commonwealth v. Squire, 1 Metc. 258.</p> <p>2. That if otherwise, this building was a house, and a dwelling-house. It was designed for a dwelling-house ; was constructed like one ; and was finished sufficiently to constitute it one. Many people wait for opportunity and means to finish their dwelling-houses. Does the law therefore refuse to protect them from incendiaries?</p> <p>declined argument.</p>

<p>This was an action of slander, for charging the plaintiff, a feme sole, with sexual intercourse with Denison Crane and George Merriam. The defendant pleaded Not guilty, with notice that he should give in evidence the truth of the charge. The cause was tried at Hartford, January term, 1850.</p> <p>On the trial, the plaintiff introduced evidence tending to prove the speaking of the words alleged in the declaration, and also to prove the general good character of the plaintiff for chastity. The defendant then offered a witness to prove, that the defendant, at the time of speaking the words, was, and ever since has been, a man of small property ; to the admission of which evidence, the plaintiff objected ; and the court sustained the objection, and ruled out the testimony.</p> <p>In the progress of the trial, the defendant offered a witness to prove, that before the speaking of the words by him, it had become a matter of common and general report, that the plaintiff had committed fornication with said Crane and Merriam respectively, for the purpose of mitigating damages. To the admission of this testimony the plaintiff objected. The court sustained the objection, and refused to admit the testimony so offered ; but the court said, the defendant might introduce evidence to prove the bad character of the plaintiff for chastity, before the words were spoken. The defendant proceeded with the rest of his proof : not, however, attacking the plaintiff's character, and ia the forenoon of the next day, finished his evidence ; when the plaintiff’s counsel informed the court, that they withdrew the objection, previously made by them, to proof by the defendant of common report. But the defendant’s counsel said, that they, after the ruling of the court, the day before, dismissed their witnesses to this point, and they had left town ; and they objected to the withdrawal of the objection at. that time. The court made no further determination, and the trial proceeded.</p> <p>The plaintiff obtained a verdict for 1572 dollars, 72 cents, damages; and the defendant moved for a new trial.</p> <p>contended, 1. That the testimony in regard to the property of the defendant, ought to have been admitted. Beunet v. Hyde, 6 Conn. R. 24.</p> <p>2. That the testimony as to the common report, ought to have been received. 2 Greenl. Ev. 282. § 275. (3d ed.) Earl of Leicester v. Wells, 2 Campb. 251. Commons v. Wallers, 1 Porter, 323. Calloway v. Middleton, 2 A. K. Marsh. 372. Henson v. Veach, 1 Blackf. 389. Young v. Slemons, Wright, 124. Nelson v. Evans, 1 Dev. 9.</p> <p>contended, 1. That the defendant cannot be permitted to prove his want of pecuniary means, to diminish damages. That a man may slander his neighbour with comparative impunity, is not one of the privileges of poverty which the law will sanction. The plaintiff may perhaps prove that the defendant is a rich man, to aggravate damages ; to show the greater extent of the injury to the plaintiff, in consequence of the defendant’s wealth and influence ; and this is as far as any case has gone. Bennet v. Hyde, 6 Conn. R. 24. 2 Greenl. Ev. 276. § 269. (3d ed.)</p> <p>2. That the defendant could not prove, that it was reported, before the speaking of the words, that the plaintiff had been guilty of the crime imputed to her; but the defendant must resort to proof of general bad character. Wolcott v. Hall, 6 Mass. R. 514. 518. Bodwell v. Swan & ux. 3 Pick. 376. 2 Greenl. Ev. 281, 2. § 274. (3d ed.) Treat v. Browning & ux. 4 Conn. R. 408. Matson v. Buck, 5 Cowen, 499. Root v. King & al. 7 Cowen, 613. 629. Mopes v. Weeks, 4 Wend. 659. Fisher v. Patterson, 14 Ohio R. 418. Young v. Bennett, 4 Scam. 43.</p>

<p>IN ERROR.</p> <p>This was a grand-juror’s complaint against Chauncey Barnes, for a violation of the statute relating to the sale of spiritous liquors, brought originally to a justice of the peace, and from his judgment appealed to the county court.</p> <p>The complaint alleged, that on the 29th day of September, 1849, at Hartford, said Chauncey Barnes, not being a tav-erner, did sell wines and spiritous liquors to a certain person whose name is to the grand-juror unknown, and did suffer and permit said wines and spiritous liquors, so by him sold, to be drunk by said person, in his, the said Barnes’’s house, store or shop, when and where sold; against the peace, &c.</p> <p>On the trial of the cause in the county court of Hartford county, November term, 1849, the attorney for the state claimed to have proved the facts alleged in the complaint. The defendant offered several of his boarders and others to prove, that from the 1st of June 1849, to the commencement of this prosecution, they had repeatedly called on the defendant at his house, for wine and spirit, and been refused, and had seen none sold in his house. By this species of evidence, the defendant claimed to have proved, that none was sold, and that the witnesses on the part of the state must be mistaken. To counteract the evidence thus offered, and to show a motive for the defendant’s conduct, the attorney for the state offered the record of the county court at its August term 1849, showing that a prosecution was pending against the defendant, from said 1st of June until the middle of August, for selling wine and spiritous liquors ; to which the defendant pleaded guilty. And the attorney for the state claimed, that it was only during the pendency of such prosecution, that the defendant refused to sell. He also offered, in connexion with such record, a witness to prove, and claimed to have proved, that during the same period, or some portion of it, when the defendant claimed that he refused to sell to sundry applicants, he did sell to divers other persons. To the admission of said record the defendant objected, on two grounds: first, that it did not tend to prove the issue; and secondly, that the sale complained of in the record, was made by the defendant, before he moved into the house in which he resided on the 29th of September last&emdash;a fact ad</p> <p>The court admitted the record, but charged the jury, that it was not to prove the guilt of the defendant; but if he refused to sell, under the hope that the first prosecution would be withdrawn, or the penalty lessened, by his stopping, or professing to abandon, further sales, it would tend to show a motive for his conduct other than the one alleged.</p> <p>The jury returned a verdict against the defendant; who thereupon filed a bill of exceptions, and brought a writ of error in the superior court; which was reserved for the advice of this court.</p> <p>contended, That the record adduced in evidence, by the public prosecutor, should have been excluded. In the first place, it did not appear, from the face of the record, that the same fact was there in issue as is in issue here. Church v. Leavenworth, 4 Day 274. 277. Ryer v. Alwater, Id. 431. 433. Cowles v. Harts & al. 3 Conn. R. 516. 522. 1 Stark. Ev. 195. 197. A record is not evidence of any matter that comes collaterally in question. 1 Stark. Ev. 190. Secondly, this record was not made admissible, by reason of any testimony offered by the defendant. It did not tend to disprove any fact which the defendant claimed to have proved. Thirdly, the parol testimony, in connection with which the record was introduced, did not render the record admissible. Fourthly, if the court erred in admitting the testimony offered by the defendant, this did not justify it in admitting the record in question. Stringer v. Young, 3 Pet. R. 336, 7.</p> <p>insisted, That the record of conviction was admissible in evidence. In the first place, it was offered, not to prove the truth of the matters then ¡11 issue, but the fact that such a proceeding was pending, at that time ; and for this purpose, it was not res inter alios acta, or in any respect exceptionable. Secondly, it tended to show why the defendant did not sell publicly and indiscriminately ; and so to rebut the defendant’s evidence.</p>

<p>Where the plaintiff’s account, in an action of book debt, consisted of sundry items, among which were two of memorandum notes, in this form-“Good to A. B. for fifty dollars, value received”-and it appeared, that these writings were given for money loaned, and at the time when the loans were made; it was held, 1. that money loaned may properly be charged on book; 2. that the taking of these notes for the moneys loaned, did not preclude the plaintiff from charging them on book, unless there was an agreement between the parties that the notes should be taken in extinguishment of the book debt; 3. that whether such an agreement existed, was to be determined by the triers, from all the circumstances proved in the case, as a question of fact; 4. that the form of the notes, and the circumstance that the plaintiff’s account embracing these charges, had been presented to the defendant, and retained by him without objection, not only furnished no evidence of such agreement, but indicated the absence of it.</p>

<p>was an action qui tam on the statute prohibiting the sale of lands of which the grantor is ousted of possession. The parcel of land, for the sale of which the action was brought, was one situated in the eleventh school district in the first school society of New-Milford, containing about 18 rods of ground, with a small house standing thereon, in which a school was kept. (The conveyance complained of was al- leged to have been made, by the defendant, to Morris B. Bar- low, on the 20th of May 1847, the defendant being ousted and held out of the possession thereof, by the entry and pos- session of said school district. The</p> <p>cause was tried, on the general issue, at Litchfield, August term, 1849. On</p> <p>On the trial, the plaintiff gave in evidence a quit-claim deed from the defendant to M. B. Barlow, dated May 20th 1847, purporting to convey to him absolutely, all the grantor’s interest and estate in the piece of land described in the dec- laration. That this deed was duly executed, delivered and recorded, was admitted. The plaintiff then introduced evi- dence to show, that said school district, in 1817, erected a school-house on part of said land, which, in 1845, was de- stroyed by fire; that in May of that year, said district voted to build a new school-house, and for the purpose of procuring a site for it, entered into an agreement with the defendant for the purchase of the land described in the plaintiff’s deed to M. B. Barlow; that in pursuance of such agreement, the defendant, by a deed dated November 17th, 1845, for the consideration of 50 dollars, conveyed said land to said dis- trict, “for the purpose of erecting a school-house, or school- houses for school purposes, and for those purposes only;" that under this deed, which was duly recorded, said district district entered into possession of said land, and caused a new schoolhouse to be erected thereon, which was completed in the fall of that year; and that said district has ever since possessed and occupied said school-house and land as their property, causing all their schools, both in winter and summer, to be kept in said school-house.</p> <p>The plaintiff, for the purpose of showing that the defendant had intentionally conveyed said land and school-house to Barlow, and not any supposed interest which he might have therein, introduced a witness, by whom he claimed to have proved, that the defendant, after his deed to Barlow, said, he had sold said land to Barlow, and had got his pay therefor. To the admission of this evidence the defendant objected; but the court admitted it.</p> <p>The defendant, for the purpose of showing that the district had acquired no title to any part of said land, by possession, offered testimony by which he claimed to have proved, that when the old school-house was placed upon said land, his father, who then owned it, gave the district permission to occupy it so long as the school-house should stand; that when it was burned down, the interest of the district in the land was extinguished; and that the defendant, who had purchased of his father’s heirs this land, with the lands adjoining, entered into possession thereof, and enclosed it, by a fence. For the purpose of showing, that the district acquired no title from the defendant, by virtue of their deed from him, he claimed to have proved, that after he had executed that deed, and before the new school-house was erected, one Mallory, who was employed to build it, called upon him, to procure a delivery of the deed; that the defendant accordingly went to the land, and handed the deed to the plaintiff, for his examination; that the plaintiff, having examined it, told the defendant, it was satisfactory, and immediately put it in his pocket; that the defendant thereupon immediately demanded of the plaintiff the price agreed upon for the payment of the land, or a return of the deed; that the plaintiff offered to give the defendant a district note for the price, which the defendant refused to take, saying that the plaintiff had no authority to give any such note, and again demanded either the money or a return of the deed; that the plaintiff, notwithstanding, kept the deed, and the purchase price has never been paid; that the defendant then forbade the erection of the house, but it was, nevertheless, erected and completed.</p> <p>It was admitted, that the defendant, during these transactions, was a member of said district; and there was no evidence that he ever made any other objection to the possession of said land by the district, than that above stated.</p> <p>The defendant thereupon claimed,</p> <p>1. That if said district entered into and held possession, under and by virtue of said deed to them, they acquired but a conditional estate in said land, which might be forfeited to the defendant, upon their using said land for other than school purposes; and consequently, that the defendant had such an interest, either legal or equitable, in said land, after the delivery of said deed, that he could legally convey the same, in the manner specified in his deed to Barlow.</p> <p>2. That as the district had never paid the stipulated price for said land, he had a lien upon said land therefor, and could legally convey the same, in the manner specified in his deed to Barlow.</p> <p>3. That as his deed to the district had never been legally delivered, the retention of it by the plaintiff, in the manner stated by the witnesses as aforesaid, was a fraud upon his rights; and that neither said deed, nor any possession, taken under and by virtue of the same, would preclude him from conveying said land to any other person, in the same manner as if no such possession had been taken ; and he prayed the court so to instruct the jury.</p> <p>The court did not so instruct the jury, but did instruct them, 1. That the defendant’s deed to said district did not, upon its face, show such an interest in the defendant, as that, after a delivery of his deed to them, he could convey said land to Barlow, in the manner specified in the deed to the latter.</p> <p>2. That although the defendant might have a lien upon the land conveyed to said district, by his deed, for the purchase price, which he could, by a proper instrument, assign to Barlow; yet his deed to Barlow did not purport to convey any such lien, or any debt whatever against said district.</p> <p>3. That to entitle the plaintiff to recover in this suit, it was not necessary for him to prove, that said district had acquired a valid title to said land, by deed, or in any other manner; that it was sufficient for him to prove, that, at the time of the execution and delivery of the deed to Barlow, the defendant was ousted of the possession of said land, by the entry and possession of said district; and that, if they found that the defendant had been so ousted, they might find for the plaintiff, although they should be of opinion that the deed to said district had never been legally delivered, but had been illegally retained by the plaintiff, in the manner claimed by the defendant.</p> <p>4. That if the jury should find, that at the time of the execution and delivery of the deed to Barlow, the defendant was ousted of the possession of said land and school-house, by the entry and possession of the same, by said district, claiming to hold the same adversely to the defendant, and as their own property; and the defendant having knowledge of such ouster, had intentionally conveyed said land and schoolhouse to Barlow, in the manner mentioned in said deed, and not any supposed interest or lien which he might have in the same; the plaintiff would be entitled to recover; otherwise, they might find a verdict for the defendant.</p> <p>The jury returned a verdict in favour of the plaintiff; and thereupon the defendant moved for a new trial. The questions arising on such motion were reserved for the advice of this court.</p> <p>contended, 1. That to constitute the offence prohibited by the statute, it is not sufficient that the purchaser and seller were out of possession, but there must have been an actual disseisin, by the entry and possession of some other person, under a bona fide claim of right. The possession of a mere intruder-a tort-feasor-is not a disseisin, and is not in law an adverse possession. A deed fraudulently obtained, is not available as the foundation of an adverse possession, so as to avoid a subsequent conveyance by the lawful owner. Livingston v. Peru Iron Company, 9 Wend. 511. Jackson d. Gillet v. Hill, 5 Wend. 532. A person entering even under a bona fide contract to purchase, is not in a position to hold adversely, until he has performed the condition necessary to entitle him to a deed. Ibid. Jackson d. Young & al. v. Camp, 1 Cowen, 605. Jackson d. Ten Eyck & al. v. Frost, 5 Cowen, 346. Jackson d. Hendricks v. Andrews &. al. 7 Wend. 152. Brandt d. Walton v. Ogden, 1 Johns. R. 156. The possession in this case being obtained by fraud, is not in law adverse; and the instruction given by the court to the jury, that it would make no difference whether the deed and the possession were obtained by fraud or not, was therefore erroneous.</p> <p>2. That a school district cannot purchase or hold lands, except for school purposes; consequently, they took but a contingent or qualified estate; and the defendant, under whom they claim, had an interest in the premises consistent with their estate, which he might well convey, by a quit-claim deed.</p> <p>3. That the defendant had a lien on the land for the purchase price unpaid; and if he had any interest in the land, either equitable or legal, he might convey that interest, without incurring the penalty of the statute.</p> <p>4. That an honest attempt, by the releasor, to convey some interest which he supposed he had in the premises, even if he was mistaken, was not the criminal act, which the statute intended to interdict. To convict a man of a crime, he must be brought within the intention, as well as the letter, of the statute.</p> <p>after remarking, that under the charge the jury have found, that the defendant was ousted of possession; that he knew it; and that he intentionally conveyed the land and school-house, and not any supposed interest which he might have therein; contended, 1. That the declaration or admission of the defendant, offered by the plaintiff, was properly admitted. In the first place, the defendant’s admission of any fact which the plaintiff is bound to prove, is always admissible. Secondly, the fact that the defendant had sold the land, and not merely some interest in it, or lien on it, was a matter in issue, in this case; and the defendant’s admission, that he had sold the land, and got his pay for it, was therefore admissible.</p> <p>2. That the charge was right, on all the points.</p> <p>In the first place, the clause in the deed to the district, that the conveyance was “for school purposes only,” had no effect whatever. School districts can never hold land for any other than “school purposes.” Stat. 304. § 41. In regard to all corporations, there is a possibility of a reverter, by breach of implied conditions, or by the dissolution of the corporation; yet before forfeiture and until dissolution, they hold the fee. 1 Sw. Dig. 77. 2 Bla. Com. 109. The benefit of a condition is not assignable. Co. Litt. 214. a. b. 1 Sw. Dig. 93. 4 Kent’s Com. 118. Nor any other contingent interest or possibility. Smith & ux. v. Pendell, 19 Conn. R. 111. The deed to Barlow was an apt instrument for the conveyance of the entire title. Sherwood v. Barlow, 19 Conn. R. 471. 476. Besides, the jury have found, that by this deed, the defendant intended to convey the entire land, and not a supposed interest in or lien upon it.</p> <p>Secondly, a lien upon land is a sort of mortgage created by operation of law. It has no existence aside from the debt, and cannot be transferred without the debt. Jackson d. Norton & al. v. Willard, 4 Johns. R. 41. 43. Huntington v. Smith, 4 Conn. R. 235. Runyan v. Mersereau, 11 Johns. R. 534.</p> <p>Thirdly, under the charge and upon the conflicting claims of the parties as to the title and possession of the district, the jury might have found, and probably did find, the title in the district, without reference to their title under the defendant’s deed. The district, by their thirty years’ possession, had a prima facie title. La Frombois v. Jackson d. Smith & al. in err. 8 Cowen, 589. 595. Livingston v. Peru Iron Company, 9 Wend. 511. 520. The district might lawfully and safely strengthen their possessory title, by getting the deed from the defendant.</p> <p>Fourthly, the question of delivery was immaterial, without reference to the former possession of the district. Whatever Sherwood, the agent,did, the district acted in good faith, and did all that good faith required; and no notice of the defendant’s claim of fraud was ever given to them.</p> <p>Fifthly, the district ousted the defendant. The actual, exclusive occupant, claiming the entire title, and acknowledging no subsisting superior title, holds adversely against all the world; and of course, by his entry and possession, ousts every one else. Bryan v. Atwater, 5 Day, 181. 189. Emerson v. Goodwin, 9 Conn. R. 421. 429. Livingston v. Peru Iron Company, 9 Wend. 517. Where there is an actual occupancy-a pedis possessio-under a claim of ownership, the possession is, at least to the extent of such occupancy, adverse. Livingston v. Peru Iron Company, ubi supra. Ken-nebeck Purchase v. Springer, 4 Mass. R. 416, Here, the district was in the actual occupation of the whole. But if not, the holding of the district under the deed, though retained by Sherwood, as the defendant claimed, was an adverse holding.</p>

<p>Where there is a warranty of soundness, and the action is brought for a breach thereof, proof of the warranty is indispensable, and it is immaterial whether the defendant knew of the unsoundness, or not.</p> <p>But if the action be brought, not for a breach of warranty, but for fraud in the sale, by representations which the defendant knew to be false, such knowledge is an essential ingredient in the fraud, and must be proved.</p> <p>Therefore, where, on the trial of an action on the case, alleging, that the defendant sold two horses to the plaintiff, by fraudulently and falsely warranting them to be sound, when in fact they were blind in both their eyes, which was unknown to the plaintiff, but well known to the defendant, after the plaintiff had introduced evidence to prove, that the defendant, at the time of the sale, made certain representations respecting the soundness of the horses, which he knew to be false, the defendant claimed to have proved, that the represent ations made by him, were accompanied by a distinct refusal to warrant the horses ; but the court instructed the jury, that if the ho ses were unsound, and the defendant made representations calculated and intended to deceive the plaintiff, and he was thereby deceived, the defendant was precluded from saying there was no warranty; it was held, that this was a misdirection, as proof of fraud, without a warranty, would not support the declaration. [The chief justice and one judge dissenting.]</p>

<p>This was an action of trespass, quare clausum fregit; tried at Litchfield, at the February term, 1850.</p> <p>There were several counts in the declaration. The second was for breaking and entering upon the plaintiff’s landsv and cutting down large quantities of wood and timber.</p> <p>Upon the trial of the cause, to the jury, the plaintiff, in support of the second count, offered evidence to prove, that the defendant employed servants to cut wood, and convert it into coal upon his land, adjoining the plaintiff’s, and that the servants cut wood, made coal, and made divers roads upon the plaintiff’s land ; and with the defendant’s teams and carts, transported the coal over these roads to the defendant’s furnace, for his benefit.</p> <p>There was no evidence that the defendant had ever authorized the acts complained of, or knew that the persons employed by him had committed, or intended to commit, them, unless the same might be inferred from the fact that he had employed a man, by the name of Dean, to cut wood upon his land, and convert it into coal, and then deliver it at his furnace ; and from the fact that the roads were cut, and the coal transported to the furnace, with his teams and carts.</p> <p>The defendant claimed, that if the acts complained of were done by Vean and the persons employed by him, without his knowledge and consent, he was not liable; and requested the court so to instruct the jury.</p> <p>But the court instructed them, that if they should find, that the defendant employed Dean to cut and convert into coal wood upon his own land, and then deliver the coal at his furnace ; and Dean, for the purpose of transporting the coal to the furnace, had cut and made the roads on the plaintiff’s land, and transported the coal over the same, with the defendant’s teams and carts, and delivered the coal at the furnace, for the defendant’s benefit; the presumption was, that the acts of Dean were done by authority and direction of the defendant, unless he showed, that he had forbidden Dean from going upon the plaintiff’s land, and doing the acts complained of.</p> <p>The jury returned a verdict in favour of the plaintiff; and the defendant moved for a new trial. The case was thereupon reserved for the advice of this court.</p> <p>contended, 1. That if a servant commits a trespass, without the knowledge, direction, or consent of the master, the latter is not liable. McManus v. Cricketl, 1 East, 106. 1 Sw. Dig. 69. 2 Rolle’s Abr. 553. 2 Selw. N. P. 1080. 3 Stark-Ev. 1446. Wilson v. Peverly, 2 N. Damp. 11. 54S.</p> <p>2. That a servant can, by no unauthorised and unsanctioned act of his, raise a presumption against the master; and so the court should have charged the jury. The master, in such case, is no more liable to such a presumption, than a stranger; for he is a stranger to the trespass.</p> <p>3. That the charge was decidedly erroneous, in instructing the jury, that it was incumbent on the defendant to show, that he forbade Dean to go upon the plaintiff’s land and commit the trespasses complained of. How could the defendant know what trespasses the defendant intended to commit, so as to be able to forbid him, under this charge ? The record shows, that there was no evidence other than the presumption referred to, that the defendant knew of the acts complained of. His non-interference, therefore, furnished no presumption against him.</p> <p>contended, That the defendant was liable for the trespasses committed by his servant, Dean, while in the defendant’s employment, and while conducting the business of such employment. In support of this proposition, they urged the following considerations. First, masters are liable for the torts committed by their servants, in all cases where the servant is acting by the direction and command of the master. If the tort complained of is committed with the knowledge and consent of the master, and for his benefit, he is liable. Reeve’s Dom, Rel. 256, 7. Secondly, whenever a master permits his servant, in the course of his business, to do an injury, he is considered, with reference to his liability, as having ordered it done. Ibid. Thirdly, whatever is done by the servant within the scope of his general authority, is certainly done by the master. Reeve’s Dom. Rel. 257. 1 Sw, Dig. 67, 8. I Bla. Com. 431, 2. Fourthly, whatever the duty of an agent requires him to do in the business of his employer, must be presumed to be done with the employer’s knowledge, and by his direction. Ex parte Machel, 1 Rose, 447. Ham. Dig. 560. pl. 7. Fifthly, in this case, it was the duty of Dean, under his contract with the defendant, to make roads for the transportation of the coal. Hence the presumption is, that the defendant directed him to make such roads. Sixthly, entire justice has been done, by the verdict; and the court, in the exercise of its discretion, will not disturb it.</p>

<p>Where the declaration, in an action on the statute against evasive transfers of bank stock, alleged, that the defendant, an inhabitant of the town of to defraud that town, and to prevent certain shares of bank stock owned by him, from being assessed therein, on a certain day, transferred to H, an inhabitant of the town of F, 35 shares of the capital stock of one bank, 81 shares of the capital stock of another bank, and 16 shares of the capital stock of another bank; it was held, 1. that the declaration was not bad for duplicity ; 2. nor because it did not embrace an offence within the statute.</p> <p>By the phrase ‘‘ ratable value,” as used in that statute, is not meant the percentage at which the stock goes into the grand levy-i.e. six per cent. of its value-but the whole amount of the stock at its actual value.</p>

in ERROR. The original action was trespass, brought by Grannis against Tallmadge, before a justice of the peace, and from thence removed, by appeal, to the county court.

This case came before the superior court, by a submission of the parties under the statute of 1848 ; (Stat, 109, 110. § 211.) and was there reserved for the advice of this court. The case agreed upon was as follows. Esther A. Lucas was born in Roxbury, in this state, in the year ; and was a settled inhabitant of that town.

This was a petition for a new trial of a cause, which had previously come before this court. Graves v. Waller, 19 Conn. R. 90. For the nature of the action and the declaration, it is sufficient, for the present purpose, to refer to the report of that case.

was an action of assumpsit for work performed and materials furnished, in the building of a school-house for the defendants. Held: at the time and place appointed, when the following votes were passed : “A motion being made to accept of the house, it was lost. Voted, that we will not accept of the house.

This was an appeal from the decree of the court of probate for the district of Newtown, made in the settlement of the estate of John Johnson, deceased, who died intestate. At the time of his death, his only surviving child was David H. Johnson, the present appellant.

<p>On the trial of an action of trespass, by a woman, for an assault upon her person, with intention to have illicit intercourse with her, the plaintiff introduced a witness, who testified, that at the time of the alleged trespass, he lived with the plaintiff, and one evening, between sun-down and early candle-light, the plaintiff was sitting in her bed-room, tending her child; that the defendant came into the keeping-room adjoining the bed-room, and asked for a paper ; that the plaintiff thereupon directed her daughter to go down into the basement story of the house, and get a light; that while she was gone for that purpose, the defendant went into the bed-room, and said something to the child; that soon afterwards, the plaintiff exclaimed, “ Let go of me ”-“ keep your hands off of me ”-“ keep your distance ”: that while her daughter was coming in from the basement with a light, the defendant left the bed-room, and soon afterwards, the house; that the position of the witness, during this transaction, was such, that he could not see either the defendant or the plaintiff, but he knew the voices of both. The defendant objected to the testimony of this witness, but it was received. On amotion for a new trial, it was held, 1. that the matters of fact involved in this statement were proper evidence to goto the jury; 2. that as the objection was taken to the whole testimony, the court did right in overruling it, even if the exclamation of the plaintiff was not admissible ; but 3. that it was admissible as an accusation of the trespass, which, though made to the defendant’s face, he did not deny.</p>

IN ERROR. This was an appeal from a decree of the court of probate for the district of Danbury, disallowing a claim on book, in favour of John H. Crone, against the estate of Mary Daniels, deceased. The superior court, at its term in February, 1849, appointed Daniel Blackman and Isaac H. Seeley, Esqrs. auditors, to examine and adjust the accounts between the parties.

This was an action of trespass de bonis asportatis ; commenced in May, 1846. The defendant pleaded the general issue, with notice of special matter justifying the taking, to be given in evidence. The cause was tried at Fairfield, February term, 1850.

Tuis was an appeal from a decree of the court of probate for the district of Stamford, passed on the 3d day of February, 1848. The appeal was brought by Andrew Bell and Betsey Bell, his wife, she being a daughter of Mary Raymond, deceased, named in her will.

This was an writ of replevin, in connexion with an action of trespass, brought by Henry D. Hathaway, as trustee of Julia M, Clark, against Charles St. John and Henry A. Burr, to obtain the possession of a pair of horses, carriage and harness, then in the possession of Reuben H. Way, a deputy sheriff, which he had taken,*in August 1848, by virtue of an attachment in favour of said St, John and Burr against Remick K. Clark.

This was an action on a promissory note or writing obligatory, under the defendant’s hand and seal, of the following tenor: $300 “ New-Haven, 28th September, 1846. Held: that it would destroy the same, but not to set up the want of a consideration as a defence. The jury gave a verdict for the plaintiff; and the defendant thereupon moved for a new trial. contended, 1.

This was an action on the case for negligence on the part of the defendants, in the transportation and delivery of certain goods belonging to the plaintiff. The cause was tried, on the general issue, at New-Haven, January term, 1850.

This was an action of replevin, to obtain the possession of certain goods, alleged to be the property of the plaintiff, which had been… Held: by the officer, under the defendant’s attachment. Burrows v. Stoddard, 3 Conn. R. 164. Hollister v. Goodale, 8 Conn. R. 334. The possession of Hubbell, without notice, is not the possession of the officer. There is no privity of contract or possession between them, as to the defendant’s attachment. Ingraham v. Wheeler, 6 Conn. R. 279.

This was an action of assumpsit, for supplies furnished, by the plaintiffs, to one Oliver Stephens, a pauper, from the 1st day of July 1844, to the 1st day of January 1849. At the term of the superior court in New-Haven, January term, 1850, the following statement of facts was agreed to, by the parties, and was, by the court, found to be true. 1.

This was a scire-facias in a process of foreign attachment. The plaintiff, among other matters, alleged, that he brought his action of assumpsit to the superior court, against Francis A. Gale, by writ, demanding 1000 dollars damages, and costs of suit; in which writ Gale was described as an absent and absconding debtor, out of the state, within the true intent and meaning of the statute, and therein the officer was commanded to leave true and attested copies thereof, at…

This was an action upon a bond, given by the defendants; Caleb Mix and Julius Tuttle, to the plaintiff, as judge of probate for the district, of New-Haven; the suit being brought for the benefit of William Townsend.

This was an action of debt on a bond of recognizance, brought by Stephen D. Pardee, as treasurer of the county of New-Haven, against Zenas M. Platt, demanding 150 dollar. Held: that the superfluous part of the condition would not vitiate the part that was good. It was the same in County Treasurer v. Burr, 1 Root, 392. and in the Massachusetts cases relied on in Waldo v. Spencer, Here however there is no part good. And in Darling v. Hubbel, 9 Conn.

IN ERROR. The original action was book debt, brought to the county court of New-Haven county, by Andrew J. Culver against Joel Hall 2d and others. The defendants pleaded the general issue, with notice of special matter to be given in evidence ; and the cause was tried in the county court, November term, 1849.

This was a scire-facias in the process of foreign attachment, to secure and recover a debt due to the plaintiffs from Dwight Hall, for which they had obtained a judgment against him. The defendant demurred to the declaration ; and the questions of law arising on the demurrer, were reserved for the advice of this court. contended, That the process of foreign attachment cannot be sustained against a town in this state.

IN ERROR. This was a bill in chancery, to redeem mortgaged premises. Held: by them. At the time the mortgage to J. T. Mix & Co. was execu- ted and delivered to them, the mortgage executed on the 2d of September, 1846, to R. M. Cowles, was outstanding, in full force, and so continued until the 26th of October, 1848 ; when Brown, in consideration of the notes described in the condi- tion, being given up, gave…

These were suits in chancery, brought to the superior . court, October term, 1847. The first two were brought to foreclose the defendants of their equity in certain mortgaged premises ; the other, by the Phoenix Bank against Lewis and others, claiming that the bank had an interest in the same mortgaged premises, and praying the aid of a court of equity to protect that interest.

This was an action on promissory notes. The officer, who served the writ, stated, in his return, that he attached all the right, title and interest, of the Killingworth Manufacturing Company, in certain real estate, particularly described, and that he left a true and attested copy ot the writ, with his doings thereon endorsed, in the hands of Nathan Griswold, president and director of said Killingworth Manufacturing Company, and within his dwelling-house in Killingworth; and…

This was an action of ejectment, to recover the seisin and possession of a tract of land in New-London, with a meetinghouse standing thereon ; of which, the plaintiff averred, he was, on the 1st of April, 1848, well seised and possessed, as trustee for a certain association of Christians, called and known by the name of the Methodist Society of New-London, and so continued until the 20th of August, 1848, when the defendants entered and ejected him.

IN ERROR. This was an application, made to the county court, by the president and directors of the Stonington Cemetery Association, stating, that… Held: upon the like notice, until said corporation shall, by their by-laws, otherwise order and direct; after which said meetings shall be warned and held, as said by-laws shall require; each share-holder being entitled, at such meeting of said corporation, to a number of votes equal to the number of shares held by him or her.

This was an action upon a policy of insurance, made, in the usual form, on the 17th day of June, 1845, for the sum of 6,750 dollars, upon the bark Fame and outfits, then on a whaling and elephantary voyage to Kergerland and elsewhere, and back to New-London.

This was an action of assumpsit, founded on an officer's receipt. The declaration consisted of two counts. The first was abandoned by the plaintiff. New- London July, 1850. Marion v. Falcon.

This was an action for a breach of promise to marry the plaintiff. The declaration contained four counts.

in ERROR. The original suit was a complaint of forcible entry and de-tainer, made by George W. Tarbox, against The Quinebaug Bank, returnable to Belton A. Copp, a county commissioner, and Philo M. Judson, a justice of the peace, alleging, that on the 11th day of August, 1849, the defendants made forcible entry into a certain manufacturing establishment, called the Eagleville manufactory, and the mill at Eagleville, situated in the town of Lisbon, of which the complainant was…

IN EREOR. This was a complaint in summary process, brought by Robert Brown against Charles B. Miner, to obtain possession of leased premises. The defendant pleaded the general issue ; on which the cause was tried before Philip Morgan, Esq. justice of the peace, and six jurors, in July, 1849.

This was an appeal from the doings of the commissioners on the estate of Richard Woodbridge, deceased, in allowing, against that estate, a claim of 10,000 dollars, in favour of Peleg Denison, executor of the will of said Woodbridge.

This case is not novus hospes here; having previously greeted us with its presence. So much of its history, previous to the last trial of it in the superior court, September term 1849, as is now material, may be seen in 18 Conn. R. 522. and 20 Conn. R. 98.

This was a bill in chancery, complaining of an injury to the plaintiffs, by means of a diversion of water, by the defendant, and asking for an injunction. On a hearing before the superior court, at Norwich, March term, 1850, the court made the following finding of facts.

This was a bill in chancery, praying for an injunction against the further prosecution of an action at law. At the term of the superior court, held in September, 1849, a committee were appointed to enquire into and report the facts alleged in the bill.

This was an action on a promissory note, made by the defendant, in the city of New-York, August 11th, 1840, promising to pay to S. C. & S. Lynes, or order, the sum of 197 dollars, 32 cents, on… Held: that they were not a bar to a recovery, and rendered judgment that the plaintiff recover of the defendant the balance remaining unpaid upon the note.

This was an action of trespass de bonis asportatis, with a count in trover, both counts being for the taking and conversion of the same goods. The suit was commenced in January, 1849. The defendant pleaded the general issue, with notice of special matter to be given in evidence. The cause was tried at Brooklyn, January term, 1850. On the trial, the plaintiffs claimed title to the goods in question, by virtue of a mortgage bill of sale from William.

This was a scire-facias, in a process of foreign attachment, under the statute of 1846, wherein Amasa C. Hall was proceeded against as the principal debtor, and James Porter, as garnishee. The. service of the writ in the original suit, was made on the 17th of December, 1846. The defendant pleaded the general issue; on which the cause was tried, at Brooklyn, January term, 1850.

This was a bill in chancery, stating an antenuptial agreement between the defendant and his wife, and praying for a decree which should compel him to convey to the plaintiff, one of her heirs, certain real estate, purchased with money belonging to her.

This was an action on an agreement, alleged to have been made by the defendants, in 1843, to assume the turnpike road of the plaintiffs, which passed through the town of Pomfret ; and alleging a breach, by the defendants, in not keeping said road in repair according to their contract, by reason of which an injury was sustained by a passenger. The cause was tried at Tolland, October term, 1849.