Volume 21 — Connecticut Reports

This was a bill in chancery, brought to compel the payment of a promissory note, executed by Mary D., the wife of John B. Steenbergen, out of property holden by her brothers, George P. Beirne and Oliver Beirne, under the will of their father, in trust for her and her children. The cause came on for trial at the February term, 1850, of the superior court for the county of Fairfield, when the following facts were found by the court.

This was an action on a policy of insurance, to recover the sum of 12,500 dollars, insured against loss by fire, on a mill, machinery, stock, &c., owned by the plaintiffs. The cause was tried, on the general issue, with notice of special matter to be given in evidence, at Hartford, January term, 1851.

This was an appeal from a decree of the court of probate for the district of Bristol, ordering payment of the claims of creditors allowed against the estate of Zelotes C. Grant, deceased. Held: that if there are absolutely no joint effects even of the smallest amount, or no solvent partner, or no separate debts, the joint creditors shall share the separate estate equally with the separate creditors.

This was a case submitted to the court on a statement of facts, agreed to by the parties, under the statute of 1848. Stat, 109, 110. § 211. The case embraced the following facts.

IN ERROR. This was an action of trespass quare clausum fregit and de bonis asportatis, brought by Church against Mansfield. Held: that the title to real estate was drawn in question, and that the plaintiff was entitled to full costs. Rider v. Hathaway, 2 Metc. 96. The decision in Bishop v. Seeley, 18 Conn. R. 389. does not conflict with these views. In that case, the general issue alone was pleaded. No notice of title or right of way was given.

IN ERROR. This was an action of debt, brought by Lyman, as treasurer of the town of Goshen, against Bentley, on a recognizance entered into by him, in… Held: found them proved, it would have been his duty to have bound over the accused for trial before a higher court. Stat. 253. § 147. Secondly, the averments in the complaint are the same—precisely the same—used in complaints filed by state’s attorneys in prosecutions for assault and battery, tried before the county courts.

This was an action on the case for the obstruction of a water-course.

This was an action to recover the expenses of the support and funeral of William Prout, alleged to be an inhabitant of the town of Sherman. The cause was tried, on the general issue, at Litchfield, February term, 1851.

This was an action of assumpsit on a written contract. The parties agreed upon a statement of facts, which was as follows. On the 21st of June, 1848, George Lathrop, the plaintiff, sold out his interest in the property of the firm of Atwood & Lathrop; which firm was, that day, dissolved, and Levi Crouch, jun., one of the defendants, took his place, and formed, with Atwood, a new partnership, under the name of Atwood & Crouch, for carrying on the spectacle trade.

This was a bill in chancery, praying for a discovery and an injunction against further proceedings at law. On the hearing before the superior court, at Litchfield, February term, 1851, the controuling facts from which arise the questions in the case, were found to be these. engaged in making and disposing of cabinet furniture, and, among other articles of copartnership property, used and owned by them, was a steam engine, boiler and apparatus, of considerable value.

This was a bill in chancery, brought to correct a mistake in a conveyance of certain real estate. The material facts in the case, as found by a committee, are the following.

This was a bill in chancery, praying for an injunction. The plaintiffs alleged, that on the 25th day of October, 1846, Samuel W. Johnson died, leaving a will, by which he gave and devised to his wife Susan, the use of one-half of all his real estate, during her life, and one moiety of all his personal property, for her sole use and benefit.

This was an action of ejectment for a small parcel of land in Stamford, containing about three roods. The cause was tried, on the general issue, at Danbury, October term, 1850. Held: on the 1st day of November, 1845, passed the following votes: “Proceeded to deliberate on the propriety of employing Bro. Henry H. Rouse, as our pastor, who has now been labouring with us, for several weeks, with reference to a settlement with us, and is now present as a candidate for office.

IN ERROR. This was an action of covenant for rent. The declaration originally contained but one count, alleging, That on the 15th of February, 1844, an indenture was made between Seth Stoddard, on the one part, and Alfred Walker, the present defendant, of the other part, in the following words: “This indenture, made, &c., witnesseth, that the party of the first part, for the consideration hereinafter mentioned, hath demised, granted and leased, and by these presents, doth…

This was an application to the superior court, as a court of chancery, to carry into effect a previous decree of that court, divorcing the plaintiff from the defendant, and granting to the plaintiff 5,000 dollars, as alimony. The plaintiff also prayed for a discovery and for an injunction.

This was an action of debt on judgment. The judgment set forth in the declaration was one rendered by the county court of Fairfield county, on the first Tuesday of… Held: that a receipt for rent, accruing at a certain time, was presumptive evidence that all rent previously accruing, had been paid. 3. That the powers of a partner, after the dissolution, are ample for the execution of instruments of this character. New-Haven County Bank v. Mitchell, 15 Conn. R. 206. 222.

This was an action of trover, for the conversion of certain goods, wares and merchandise. The cause was tried, on the general issue, with notice of special matter to be given in evidence, at Fairfield, February term, 1851.

This was an action on the case, to recover damages done, by the defendant, to the property of the plaintiff, by means of a carriage factory and blacksmith’s shop, erected and occupied by the defendant, on his land, in the immediate vicinity of a dwelling-house and lot owned by the plaintiff. The cause was tried, on the general issue, at New-Haven, October term, 1850.

This was a scire-facias in a process of foreign attachment. The original action was assumpsit, brought by Luman Cowles, against Francis A. Gale, an absent and absconding debtor, leaving a copy in service, on the 3d day of April, 1848, with Russell Coe, the present defendant, as the trustee and debtor of Gale. The defendant pleaded the general issue, on which the cause was tried, at New-Haven, October term, 1850.

IN ERROR. This was an appeal from the judgment and decree of the of probate for the district of Wallingford, made on 10th day of December, 1832, accepting and allowing the administration account of the defendant, executor of the last will and testament of Chauncey Barnes, deceased. The appellant was one of the children of the deceased; and the appeal was taken, within the time limited by law, after his arrival at the age of twenty-one years.

This was an action on the case, for injuries sustained by Marion Derwort, one of the plaintiffs, and wife of George H. Derwort, the other plaintiff, in consequence of the overturning of a stage-coach, owned by the defendant, and used by him for the conveyance of passengers for hire, from Bridgeport, to Derby.

This was a bill in chancery, seeking a reasonable proportion of the sum of 2,000 dollars, being the annual income of a fund devised by Samuel St. John for the benefit of his niece, Catharine S. St. John, one of the defendants. The material facts in the case appear in the report of the committee appointed by the court to ascertain them. By that report, the following facts are found.

This was an indictment for burning a dwelling-house, whereby the lives of persons were endangered. John W. Wolcott was indicted as principal in the offence, and Elisha W. Wolcott as an accessory, aiding in the commission thereof. The accused pleaded, severally, Not guilty; and the cause was tried, at New-Haven, October term, 1850. After a full hearing, it was committed to the jury, who found them, severally, guilty.

IN ERROR. The original suit was a bill for a foreclosure of mortgaged premises, brought by Russell Coe against Francis A. Gale, the mortgagor, and Lyman Treadway, a creditor of Gale, who had obtained judgment and execution against him, and had the execution levied on his equity of redemption.

This was an action of debt on bond, brought by Eleazer K. Foster, as judge of the court of probate, against Leveret Thomas, administrator of Hezekiah Thomas, deceased, as principal, and Henry A. Smith, as surety. The defendants pleaded performance of the condition of the bond. The plaintiff replied, setting forth specially certain breaches; to which there was a rejoinder, by the defendants, detailing the circumstances of the administration.

This was an action on the case. The declaration stated, that the plaintiff, being seised in fee and possessed of the piece of land in the city of New-Haven, therein described, with a building thereon, occupied by him, as a blacksmith, the defendants, on the day therein mentioned, and on divers days and times between that day and the bringing of the suit, wrongfully and injuriously, and without taking reasonable care to prevent the injuries thereinafter mentioned, made a…

IN ERROR. The proceeding in this case was commenced by a petition to the county court, brought by Peres Haskill and others against the town of Saybrook, for an alteration of the public highway leading from Deep River to Meadow Woods and Essex; which the select-men had refused to lay out.

IN ERROR. This was originally an action brought by Martin Wright against Benjamin Wright, on the statute concerning Fences, &c., to recover the sum of forty dollars, awarded by the fence-viewers, under the 8th section of that statute.

This was an action of ejectment, tried before the superior court for Middlesex county, at the February term, 1851. The plaintiff claimed title to the demanded premises, by virtue of the levy of an execution. They were conveyed to the defendant’s wife, Eunice Sawyer, in fee, on the 15th day of March, 1836. She is still living, and has issue of her marriage with the defendant.

IN ERROR. This was an action of trespass quare clausum fregit, brought by Stillman N. Deming against Levi Hubbard and Edward Hubbard; tried in the county court for Middlesex county, October term, 1850.

This was an action of trespass de bonis asportatis; tried at Nonvich, March term, 1851.

This was an action of ejectment, for two parcels of land and the buildings thereon, in the town of Stonington, commenced in March, 1849. The plaintiff pleaded the general issue, in which the cause was tried, at Norwich, at an adjourned term in August, 1850. On the trial, the plaintiffs founded their claim of title on the will of Joshua Robinson, deceased, dated April 5th, 1837 ; and approved by the court of probate, July 6th, 1838.

This was an action of indebitatus assumpsit, in three counts. In the first count, it was alleged, that on the 7th day of April, 1847, the defendant was indebted to the plaintiff in the sum of nine thousand, two hundred dollars, for so much money before that time lent and advanced to the defendant, by the plaintiff, at the special instance and request of the defendant.

This was an action of assumpsit, to recover the rent of a factory and the buildings connected therewith; tried on the general issue, at… Held: and charged the jury, that Hale's continuing to possess the factory, or holding over, was not of course the holding over of all the defendants; and that he could not continue Crosby and Conkey tenants against their will; but whether the possession and controul of all the defendants had terminated, or were continued as at the first,…

This was an action of assumpsit, by the indorsee against the indorsers of two promissory notes, made by George Randolph. There were four or five special counts, to which was added the common count for money paid, laid out and expended, by the plaintiff, for the use and benefit of the defendants, and at their special instance and request. The cause was tried at New-London, September term, 1850.

This was a scire-facias in a process of foreign attachment, brought to recover the amount of a judgment obtained against Isaac G. Ford. The cause was tried before the superior court for New-London county, at the March term, 1851. The court found the following facts, and reserved the case for the advice of this court.

This was an action of ejectment for a barn-yard and the barn and carriage-house thereon standing, in the town of Thompson. The cause was tried, on the general issue, at Brooklyn, January term, 1851.

This was a suit, by scire-facias, brought to recover the amount of a judgment rendered in an action commenced, by process of foreign attachment, against Carpenter & Elliott.

This was an action on a promissory note, alleging, that the defendants, in and by a certain writing or note, under their hand, by them well executed, dated the 16th day of June, 1849, promised the plaintiff to pay him, sixty days after said date, for value received, the sum of 200 dollars and 12 cents, with interest; with a profert of the note. To this were added the common counts.

This was an action on the case. The declaration contained several counts. Held: by respectable authorities, that a conviction, even though appealed from and annulled, is conclusive evidence of probable cause. Whitney v. Peckham, 15 Mass. R. 243. But that it was, in the language of the court, “entitled to great consideration,” there can be no doubt.

This was an action on a policy of insurance on sundry buildings in the town of Berlin. The declaration set out the policy, which was dated September 3rd, 1845, and the defendants’ charter, The 13th section of the latter was in the following words: “Sec. 13.

This was an action of debt, on a judgment of the county court for the county of Hartford, rendered in March, 1821, for 206 dollars, 39 cents, damages, and 14 dollars, 40 cents, costs of suit.

IN ERROR. This was a petition brought by Benjamin G. Webb and others, inhabitants of the town of Rocky-Hill, to the county court of the county of Hartford, in November, 1851, praying for the discontinuance of a highway therein described.

IN ERROR. This was a bill in chancery, brought by Horace Seymour against James Dodd, setting forth an agreement between the parties, and praying for a specific execution thereof.

This was a case agreed upon, by the parties, and submitted to the court for its decision thereon, pursuant to the statute, approved June 24th, 1848. The case embraced the following facts.

IN ERROR. This was a bill in chancery, brought originally to the county court, against the city of Hartford, praying for a discovery and other relief. Held: by said Alfred Smith, and by said Charles H. Brainard, as survivor and executor of said Charles Brainard. Extracts from the records of the court of common council of the city of Hartford, above referred to.

IN ERROR. The original suit was a complaint for a forcible entry and detainer, made by Stiles against the plaintiffs in error.

IN ERROR. The original suit was a complaint for forcible entry and detainer, made by Homer and others, against Stiles and others, to a special court, holden in Roxbury, in Litchfield county, by a county commissioner and a justice of the peace.

This was an action for a malicious and vexatious suit; brought originally against Richard Wickwire and Ransom Wickwire, but during the pendency of the suit, Richard died, and the suit was subsequently prosecuted against Ransom alone.

This was an action of debt on bond. The declaration set forth the instrument declared on, dated August 9th, 1845; to which there was a condition annexed, reciting, that certain controversies had arisen in the settlement of the estate of Andrew Hine, deceased, which had been mutually adjusted between Harmon Hine and the defendant, in consideration of which, the defendant promised to pay the plaintiff, the sum of 625 dollars, on or before the 1st of January, 1846; which sum…

This was an action of debt on judgment. The defendant pleaded the general issue, with notice of special matter to be given in evidence. The issue being closed to the court, the following facts were found by the judge.

<p>The mere submission to arbitration of the matters in controversy, involved in an action pending in court, does not operate as a discontinuance of the suit.</p> <p>Therefore, where the parties to an action of trover, during its pendency in court, by a submission in writing, submitted said action and the matters therein at issue, to the arbitrament of three persons, without any provision in the submission, that the award might be made by a less number than the whole; and an award was made, by two of the arbitrators, without the concurrence, and with the express dissent, of the third; it was held, 1. that the award so made was void; 2. that the submission did not operate as a discontinuance of the suit in court.</p> <p>In the English courts, a discontinuance—either voluntary, or involuntary—is a matter of practice only.</p>

<p>The testator, after making certain bequests to each of his children, devised the residuum of his estate to his daughter L, and appointed his two sons, Hand M, trustees of such estate, directing, that they should have the entire management thereof, at their discretion, for the benefit of his daughter L, during her natural life; and whatever of said estate should remain in the hands of said trustees, at her decease, should go to his grandson, subject to certain limitations. The trustees accepted the trust under the will, paid over to the cestui que trust, a part of the interest accrued on the trust fund, and then, without any fraudulent intent, withheld the residue, amounting to 311 dollars, though she was, a part of the time, in necessitous circumstances. On a bill in chancery, brought by L and her husband against the trustees, to compel them to pay over the arrears of interest accrued on the trust fund, it was held, 1. that by the will, the estate given to the daughter, was to be managed, by the trustees, for her benefit; 2. that the management conferred, embraced only such controul over it as was necessary to render it productive; 3. that consequently, the daughter was entitled to receive, annually, the net income of the fund; 4. that as the will contemplated also the contingency, that some part of the estate itself, i. e. the principal of the fund, might be wanted by her, and expended for her benefit, the court, in a proper case, would sanction such application.</p>

<p>Where a mother, who has since acquired a settlement, by commorancy, in the town of N, continued to reside in that town, with five minor children of hers in her family, of whom C was one; C remained with her, as part of her family, and was supported by her, and subject to her controul, until April, 1833, (which was before she had acquired,a settlement in N,) when his brothers having all left her, and she, being unable to find employment for her children, by reason of the stoppage of the factories, said to C, who was still a minor, that he might go and take care of himself, and have his time and his earnings; to which C assented; and it was so mutually agreed between them by parol, no pecuniary consideration being paid or received, by either of the parties; C thereupon left his mother, and found employment, by different persons, in different places, returning to his mother in N, in two instances, and boarding with her through the winter, and paying his board, for the purpose of attending school; in an action for the support of C's wife, it was held, 1. that the agreement between C and his mother, was as valid and effectual as if it had been in writing; but 2. that whatever else might be its effect as between the parent and child, it did not release the child from the authority and controul of the parent, nor the parent from the duty of maintaining and protecting the child; 3. that consequently, it wrought no such emancipation as prevented C from deriving from his mother her settlement in N.</p>

<p>As a general rule, legacies are to be paid out of the personal estate.</p> <p>It is also a general rule, that a will speaks from the death of the testator, and not from its date, unless its language, by a fair construction, indicates the contrary intention.</p> <p>Where the testatrix gave sundry legacies to her grandchildren, and devised the residuum of her real estate to her children; and it also appeared, that at the making of her will, she owned no personal estate, though she became the owner of such estate before her death; it was held, that such legacies were payable out of the personal estate.</p> <p>Parol evidence is not admissible to vary the construction of a will, where there is no ambiguity created by the application of extraneous circumstances.</p> <p>Where an additional inventory was exhibited, in the course of administration, and the only article therein complained of, was a muff, found to be worth one dollar, seventy-five cents, which was sold for two dollars, and the avails duly applied; it was held, that this was not a sufficient ground for reversing the decree appealed from; the remedy of the appellant, if he was entitled to any, being by suit on the probate bond.</p> <p>Where the administrators, in the settlement of their administration account, included two dollars, fifty cents, for services then future, though necessary to be rendered; there being in this no unfairness, nor injury to the estate, but a matter of convenience and economy; it was held, that this was not a sufficient ground of reversal.</p> <p>But where the administration account included, as fees of the judge of probate, fifty cents, each, for a finding on the return of the inventory and order of sale, on the approval of the sale, on the return of notice, and on the return of a sale of real estate; it was held, 1. that the services for which these charges were made, were included in other services, enumerated in the table of fees; 2. that the charges therein specified contained all the charges allowable by law to judges of probate and their clerks; 3. that the appellant being heir at law and devisee, could avail himself of this objection; 4. that consequently, the decree of probate should be reversed to that extent, and in other respects affirmed.</p>

<p>Where the declaration, in an action against a rail-road corporation, for a personal injury to one of the plaintiffs, after stating, that the defendants were the owners of a certain rail-road, running through the towns of W and P, and of certain cars for the conveyance of passengers upon that road, averred, that, on the day specified, the defendants were the owners of, and were running and propelling, upon said road, a certain train of passenger cars, for a certain reasonable reward paid to the defendants; it was held, that it sufficiently appeared from the declaration, that the defendants were common carriers.</p> <p>In such case, it was not necessary to allege, that the defendants had power by their charter, to become common carriers; for they being engaged in this business, and having, in its pursuit, made a contract pertaining to it, ought not to be allowed to say to the contracting party, that they had no power to do so.</p> <p>Where the declaration, by husband and wife, for a personal injury to the wife, after stating the nature and extent of the injury complained of, proceeded to allege, that by means of such injury, she became sick, and was prevented from attending to her necessary affairs, and that the plaintiffs were thereby forced to, and did, necessarily expend two hundred dollars in endeavouring to effect a cure; it was held, that although the plaintiffs could not recover, in the same action, for the wife’s personal injury, and also for the expenses of her cure, yet in this case, the ground of damages, was the wife’s personal injury alone, and the statement regarding the expenses of her cure, was to be considered as descriptive of the extent of her injury, and not as a distinct and substantive ground of damages, and in that aspect, though unnecessary, still it was very proper; but if otherwise, yet as the gist of the action was the breach of contract in not carrying the wife safely, and this was a ground on which the plaintiffs could recover, it will be presumed, after verdict, that the court confined the evidence to that ground.</p> <p>Where in one count of the declaration in such action, the promise was alleged as made to the wife, and in another, as made to the plaintiffs; but in the latter case, the allegation of the promise was preceded and followed by language, which shewed that the promise was made for the wife’s benefit; it was held, that the fair reading of this count was, that the promise was made to her; and consequently, there was no misjoinder of counts.</p> <p>A promise founded on a consideration relating to the wife’s personal security, does not vest absolutely in the husband, but may be the subject of an action in the name of husband and wife.</p> <p>In all cases where the cause of action will survive to the wife, she may join with her husband in a suit upon it.</p> <p>The case of Griswold v. Penniman, 2 Conn. R. 564. considered and commented on.</p> <p>Where the plaintiffs, on the trial of the action above stated, offered a witness to prove, that the wife gave money to him to buy a ticket for her passage in the cars to P; that such a ticket was accordingly procured for and received by her; and that she thereupon took her seat in the cars, to be conveyed to P; this evidence was objected to, because it went to prove, that the contract was made with the husband, on the ground, that the money paid for the ticket must be presumed to have been his; but as she might have separate property, and the money might have belonged to either of them, it was held, that the evidence was admissible, as conducing to prove the contract laid, its sufficiency being out of the question.</p> <p>An implied contract will be presumed to be made with the party in interest; and as the husband has, legally, no interest in the wife’s personal security, a contract for that purpose, will be presumed to be made with her.</p> <p>Where the plaintiffs, on the trial of such action, claimed, that the injury alleged resulted from the car’s not stopping, at the station in question, a reasonable time for the passengers to leave; which was controverted, by the defendants; and the plaintiffs offered evidence to shew the usual and customary period of the car’s stopping at that place; it was held, that such evidence was admissible.</p> <p>A carrier of passengers is bound to use the highest degree of care that a reasonable man would use.</p>

This was an appeal from two decrees of the court of probate for the district of Norfolk; one passed on the 29th day of September, 1851, and the other, on the 20th day of October, 1851.

<p>Where a contract was made between H, an individual living in New York, and P, a manufacturing company in this state, that P should convey to H, all the real estate and privileges used and occupied by P, in working the mills of the company, situated in the town of B; for which H promised to pay to P a certain sum of money, and to D, another sum; H performed on his part; and to carry this agreement into effect, on the part of P, he gave a deed of the property, describing it as situated in B; a portion of the property was in fact situated in the adjoining town of T, separated from the residue, only by an ideal township line, having been originally purchased and used for the purpose of a reservoir of water for the mills connected therewith, and necessary for their profitable enjoyment; on a bill in chancery, brought by a party claiming under H, for a legal title to the estate in T, it was held, 1. that whether the inaccuracy in the deed, was the result of fraud or mistake, the plaintiff was entitled to the relief sought; 2. that an interest vested in H, creating in him a trust, which was assignable and descendible, and which could be taken on execution.</p> <p>Where W, the grantee of D, in such case, claimed, that his deed was prior in time to the plaintiffs’ lien, and that when he received it, he had no notice of such lien; it was held, that if he would avail himself of his purchase and want of notice, it was incumbent upon him, in plea or answer, to aver those facts, and set out the consideration of his purchase.</p> <p>After a hearing on the merits and a decree passed, it is quite too late to except to the bill for want of proper parties.</p> <p>Qu. Whether it is necessary at all, to make a person, who has formerly had an interest in property, but which has since been wholly taken and set off on execution, a party to the suit?</p>

This was an action on the case, tried before the superior court for Fairfield county, at the February term, 1852. This action was brought to recover damages, for an injury sustained by the wife, while riding along the public highway, in the town of Wilton, from a certain stage-coach of the defendants, the horses of which had been so carelessly and negligently left, that they ran away with the coach, and occasioned the injury of which the plaintiffs complained.

<p>By a true construction of the statute authorizing the magistrate, before whom two or more persons are brought, on complaint of an offence by them jointly committed, and a finding of probable cause, he is authorized to require each of them to become bound, with surety, for his own appearance only, before the court having cognizance of the offence.</p> <p>Therefore, where a justice of the peace, before whom A and B had been brought for examination, having found that there were probable grounds for supporting the complaint on which they had been arrested, ordered them to become bound, with surety, in a recognizance, conditioned that they should appear before the county court, at a time and place specified, to answer to such complaint, and abide the decision of the court thereon; and thereupon A and B, as principals with C, as surety, acknowledged themselves jointly and severally bound, in the sum required, conditioned that A and B should so appear, &c.; A and B made default of appearance; and in a suit brought on such bond of recognizance against C, it was held, 1. that, the order of the justice, by a just construction, required each of the principals to become bound for the appearance of the other; 2. that the justice was not authorized by law to make such order; 3. that as the bond was required of A and B as the condition of their liberation from imprisonment, it was not a voluntary bond on their part, but one entered into under duress; 4. that as against A and B, the bond was void; 5. that it was equally void, as against C, the surety, as well from the want of authority in the justice to require it, as from the nature of the undertaking of a surety; 5. that where the matters above stated appear in the declaration, the defendant may avail himself of his defence, by demurrer.</p>

<p>The principal object of the statute of 1828, regarding assignments, was, to provide a responsible trustee to receive assigned property, and cause it to be equally distributed among the creditors of the assignor; and that statute should be liberally expounded so as to effect such object.</p> <p>Where an absolute bill of sale, of hats and other personal property in a hatter’s manufactory, was executed by A to B, his father, expressed to be, in consideration of 1500 dollars, received by the assignor, whereby he conveyed the estate under his hand and seal, and agreed to warrant and defend the title; at this time, A was in failing circumstances, and made the assign ment, with a view to his insolvency; but it also appeared, that no such consideration as that expressed was in fact paid or received; a note held by B against A was not given up, nor did B agree to pay another which he had signed jointly with A; no definite valuation of the property conveyed, was agreed upon, by the parties, though there was evidence to show, that the object of the assignment was, to pay said notes from the proceeds of the property, and to pass the surplus into the hands of an assignee under a general assignment of the residue of A’s property, then in contemplation, and shortly after made by him; in an action by B against an attaching creditor of A, for taking the property assigned, it was held, 1. that B was a trustee of such property, first, for the payment of said notes, and then for the general creditors of A; 2, that as the trust was not for the creditors equally in proportion to their respective claims, and was not in writing, the assignment was utterly void, as against the defendant, an attaching creditor of A.</p> <p>Where it appeared, on the trial of such action, that though upon the assignment, the key of the shop in which the goods were, was delivered to B, yet it soon got back into A’s hands, who was employed by B, to superintend the finishing of the hats, and fitting them for market; and all this was done at the shop where A had carried on his business, and B was not there more than three or four times between the assignment and the attachment, a period of eight days; it was held, that the possession of the goods was never changed, but was substantially retained by A; and on that ground also, the assignment made by A to B wag void.</p>

<p>Though, for some purposes, a will is considered as speaking from its execution, the time of its inception, and for others, from the death of the testator, the time of its consummation; yet the general rule is, that it speaks from the death of the testator, where there is nothing in its language indicating a different intention.</p> <p>Where the testator, after giving portions of his estate to each of his brothers and sisters, and a nephew, or to the representatives of such as were deceased, devised to the heirs of each of his brothers and sisters, including the heirs of his sister N, the residue of his estate, to be equally divided between said heirs, each individual having an equal portion of the same; N died before the death of the testator, leaving a son, who died before the execution of the will, and he left a daughter, C, who is a party to the present suit; on an appeal from a decree of probate, it was held, 1. that the will spoke from the death of the testator; 2. that as N and her son, the father of C, were dead, at the time of that event, C was the heir of N, both in its technical and its popular sense; 3. that though the construction of any term used in a will, must be made with reference to all its parts, so that they shall, if possible, be allowed to have effect, yet to give the word heir a construction different from its usual and legal acceptation, the intention of the testator must be clear and decisive; 4. that the fact, that C and her sister took, under the will, a distinct legacy of 300 dollars, that this provision was inserted before any disposition was made of the residue, and that C is described, in one part of the will, as heir of her father, and in another part, as heir of her grand-mother,—neither of these considerations, nor all combined, were sufficient to vary the construction of “heirs of N,” so as to preclude C from taking under the residuary clause; 5. that C, and the other devisees under that clause, take per capita.</p>

<p>A note signed by the authorized agents of a corporation, with words annexed to their names intimating their agency, is the note of the corporation, and not of the persons signing it.</p> <p>Therefore, where P, an ecclesiastical society, passed votes, empowering the wardens and vestry to transact all its necessary business, as a committee, and then directed that committee to raise 500 dollars for the builder of the new church; at this time, there were, in such society, two wardens and four vestry-men; three of the vestry-men borrowed of the plaintiff a part of the 500 dollars, for which they gave him their promissory note, signed by them, with this addition, “vestry-men of P church;” the money so borrowed was applied to the use of the society, and the interest thereon was annually paid by its treasurer, and charged to and allowed by the society; in an action on such note, it was held, that this instrument was the note of the society, and not of the individuals who signed it; consequently, such individuals were not liable.</p> <p>Though a person duly authorized as agent, and acting as such, may bind himself personally; yet this must be done, by language clearly expressive of such an intent.</p> <p>So also, a person signing as agent, may bind himself, if he had no authority to bind, and has not bound, his principal.</p> <p>In case of a defective power to bind the principal, if the agent speaks only in the language of the principal, and does not use apt language to bind himself, he will not be liable on the contract, but may be subjected for a false assumption of authority.</p> <p>Where a power of a mere private nature is conferred on two or more persons, all must concur in the act, and if of a public or more general nature, a majority, at least, must act, in order to bind the body conferring the power; yet if such body make no objection to the act done, but adopt and sanction it, a third person cannot avail himself of a defective execution; a subsequent ratification having the same effect as an original authority.</p>