Volume 24 — Connecticut Reports

This was a bill in chancery, brought, by the plaintiff as the assignee of a mortgage, against the défendants, as holders of prior mortgages and the equity of redemption, praying for a decree, allowing the plaintiff to redeem the prior mortgages, and foreclosing the defendants of their right of redemption. The case was referred to a committee, whose report embraced the following facts.

This was an action on a bill of exchange. On the 7th day of December, 1854, the Maritime Bank of Bangor prayed out a writ of attachment against Robert P. Rand, doing business under the name and firm of “ Richard Rand & Son.” Said writ was served by the attachment of real and personal estate, and by leaving a copy with Robert P. Rand.

This was an action on the case, brought to the term of the superior court for the county of New London, holden in March, 1855. Held: had used and enjoyed said dam exclusively, and adversely, for more than fifteen years before the plaintiff's action was brought; and the defendants insisted, that when they purchased said Water privilege, the dam was substantially the same, and of as great height, as it was during the three years complained of by the plaintiff; the…

<p>Land was conveyed to the plaintiff and his heirs forever, upon the following trust: “ to let the premises at his discretion, collect the rents, and therewith keep in repair the premises, insure the buildings, pay the taxes on the premises, and his reasonable expenses in managing the trust, and out of the balance of said rents, apply so much as he should deem suitable to the proper support, education and maintenance of the grantor’s three minor children, according as, in his judgment, shall be requisite, suitable, and best for each of them while in their minority; and when the youngest of them, or the survivors of them, if either should die previously, shall attain his majority, then to convey the premises to such of said children as shall then be living, their. heirs and assigns forever. If hut one o’f them shall survive, then the whole to be conveyed to the survivor. If either should die, leaving lawful issue, such issue to takejhe share which would have belonged to their parent.” Any surplus rents, beyond what might be needed for the purposes specified, were, by the trustee, to be invested, and holden upon the same trust as the property conveyed by the deed. In case all the children should die before the time appointed for the conveyance by the trustee, leaving no lawful issue, then he was to convey the premises, and the accumulated rents, to the heirs at law of such children, if any, and their heirs forever, and if there should be none such, then to the heirs of the grantor. In an action by such trustee, during the minority of said children, against the town, in which said land was situated, to recover the money, by him paid to such town, for taxes assessed upon such land, the plaintiff claimed that the land belonged to said minor children; that they were persons of color, and their estate exempt from taxation, under the act relating to the assessment of taxes; (Rev. Stat,, tit. 50, ch. 1, § 3 ;) it was held, that said land was not the property of the cestuis que trust, and was not exempt from taxation, and consequently that the plaintiff was not entitled to recover.</p>

<p>This was an action on the case, brought to the term of the superior court for the county of New London, holden in September, 1851.</p> <p>The declaration originally contained three counts.</p> <p>In the first count, it was alleged that the defendants were carriers of goods and chattels for him from the city of Norwich, in the state of Connecticut, to the city of Philadelphia, in the state of Pennsylvania, and that on the 8th day of October, 1850, the plaintiff delivered to them a bag containing 207 oz. and 10. pwts. of placer gold, marked U. S. Mint, Pa., to be conveyed from said Norwich to the U. S. Mint at Philadelphia.</p> <p>The second count was like the first, except that it did not allege the defendants to be common carriers. -</p> <p>The third count was general, and alleged that the defendants had the care and custody of a like bag of gold, which, through the neglect of the defendants, was lost.</p> <p>At the term of said superior court, holden in December, 1853, the cause was tried by the jury, on the general issue. On the trial, it appeared in evidence, that the bag of placer gold, for the loss of a part of which the plaintiff sought to recover, was delivered to the defendants, at the city of San Francisco, in the state of California, to be conveyed by them on a special contract, to the city of New York, in the state of New York, and there to be delivered to the plaintiff; that the defendants brought said bag of gold, to said city of New York, and (the plaintiff residing in the town of Preston, in the state of Connecticut) the said bag was forwarded to the town of Norwich, in said state, by the defendants, and was there delivered to the plaintiff, and the plaintiff there received the same, and delivered to the defendants the bill of lading.</p> <p>It further appeared, that afterward, on the same day, the plaintiff re-delivered said bag to the defendants, at the city of Norwich, and took a receipt therefor, to be conveyed by the defendants to the United States’ Mint, at the city of Philadelphia, in the state of Pennsylvania. The defendants conveyed the said bag to said mint, and there, for the first time, it was discovered that there was a difference between the true weight, and the weight marked on the said bag. It further appeared that the plaintiff originally brought his action, based on this last delivery of the said bag to the defendants, by the plaintiff, at the said town of Norwich, to be conveyed to the said mint as is set forth in the first three counts of the plaintiff’s declaration.</p> <p>The jury, being unable to agree on a verdict, the cause was continued to the March term of the said superior court, when the plaintiff moved for leave to amend his declaration, by the addition of three new counts, the first of which was substantially as follows: “ The defendants, before and at the delivery of the goods and chattels to them, as next hereinafter mentioned, were, and thence hitherto have been, and still are, common carriers of goods for hire, from San Francisco, in the state of California, to Norwich, in the state of Connecticut, and. the plaintiff, while the defendants were such common carriers as aforesaid, to wit, on the 30th day of August, 1850, caused to be delivered to the defendants, and the defendants then accepted, and received of and from the plaintiff, a certain other bag, or package, containing divers goods and chattels of the plaintiff, to wit, 208 ounces of placer gold, of great value, to wit, of the value of four thousand dollars, to be safely and securely carried and conveyed by the defendants from San Francisco aforesaid, to Norwich aforesaid, and there, to wit, at Norwich aforesaid, safely and securely to be delivered, for the plaintiff, for certain reasonable reward to the defendants in that behalf. Yet the defendants,” &c.</p> <p>The second new count alleged, that the defendants were common carriers from San Francisco to New York; that said gold was delivered, and received by them, to be carried by them, from San Francisco to New York.</p> <p>In the third new'count, it was alleged, that the defendants were common carriers, from the city of New York to Norwich, in this state, and received said gold to be carried from said New York to Norwich.</p> <p>The defendants objected to the allowance of the motion, claiming that it changed the ground of the plaintiff’s action. The court overruled the objection, and allowed the motion, and the plaintiff thereupon filed said new counts.</p> <p>The jury returned a general verdict in favor of the plaintiff, and the defendants -filed a bill of exceptions, and by motion in error, brought the case before this court.</p>

<p>. The master is not liable in an action of trespass, for the act of his servant, where such act was neither expressly ordered nor authorized to be done.</p> <p>Nor is he liable in such action, where the injury was not the natural and prob- | able result of the execution of the master’s orders, and could have been avoided joy the exercise of ordinary care on the part of the servant.</p> <p>The principle of law that subjects a master for the tortious act of his servant in the performance of his master’s business, within the scope of the general authority, is the same as that which subjects him for the act of his servant, done by his express direction; but the remedy for the injury in the former ease is by an action on the case; in the latter, by an action of trespass.</p> <p>The liability of a master, in an action of trespass for the act of his servant, done by his express direction, does not rest upon the relationship of master and servant, but upon the fact that the act was done by the master’s express direction.</p> <p>In an action of trespass vi et armis, it was proved that the plaintiffs’ steamboat took fire in the night season, while it was fastened by the plaintiffs’ cable to the defendants’ wharf, upon which stood an old wooden freight-house; .but before endangering said freight-house, and while the fire could have been extinguished, the cable was cut by the defendants’ watchman, and the boat drifted away and was burned. No evidence of any authority for the act of the watchman was introduced, other than such as might be implied from the watchman’s general employment as such, in the business of the defendants. The court rendered judgment as in case of nonsuit. Held, that such nonsuit was properly granted.</p>

<p>The offence of burglariously breaking and entering a shop, store and warehouse, with intent to steal, (Rev. Stat., tit. iv., chap. 4, § 39,) is complete, without an actual larceny. The latter, if committed, is a distinct' offence, although the theft ensued upon the breaking.</p> <p>It follows, that a conviction for such larceny is not pleadable in bar against a subsequent prosecution for the breaking.</p> <p>Generally, to constitute a legal identity between two offences, so as to make an acquittal, or conviction of one, an available defence against a prosecution for the other, it is necessary that the averments of the second information should be such, that, if proved, they would have warranted a conviction under the first.</p> <p>Although there is a strong current of American authorities in favor of so modifying the foregoing rule as to treat a conviction for a lesser offence, which is an ingredient of a greater crime, as a bar to a subsequent prosecution for the greater, this doctrine, if it exists, is inapplicable to the offences of theft and burglary, under the Connecticut statute.</p> <p>Whether, if the second information should charge a burglary and larceny, an acquittal, in a former prosecution, for the larceny only, would be a defence. Qu.?</p> <p>The same rules govern cases of former acquittals, and former convictions.</p> <p>A banking-house is a store, shop or warehouse, within the meaning of the statute above mentioned.</p>

<p>A new trial will not be granted in a cause, unless it appears that injustice either was, or might have been, done on the former trial.</p> <p>If it appears, from the evidence introduced on the trial of a cause, that the plaintiff is entitled to a verdict, a new trial will not be granted, on the ground that the court refused to instruct the jury as to the legal construction and effect of such evidence.</p> <p>In an action on a promissory note, to which the defendant had pleaded the statute of limitations, it was shown that the daughter of the plaintiff, as the agent of the latter, wrote to the defendant a letter, calling his attention to the fact that he was indebted to the plaintiff by note, to which the defendant soon afterward replied, “ Yours, of the 24th, has been received, and in roply, I hardly know what to say; but as you request an answer soon, I will say in return, that I can’t tell you what. I can do at present, but I have been thinking of coming to W. for some time, but will omit it until I hear from you again. I wish you by return of mail, to send me a true copy of all the claims that you hold against me in full dates; that is, I want it word for word, and endorsements, &c., and state where your mother and sister are now living, and I will either see them or write soon.” Held, that such letter of the defendant, under the circumstances, was sufficient to remove the bar.</p> <p>Where, in such action, the defendant claimed, as matter of law, that stteh letter did not amount to an acknowledgment of the note as an existing .indebtedness, and that it should not go to the jury as any evidence of a new promise, and the court refused to put any legal construction upon the written evidence, but léft all the evidence in the case to the jury, as relevant to prove an acknowledgment of a debt by the defendant, and a verdict was rendered in favor of the plaintiff; it was held, that as the evidence showed that the plaintiff was entitled to a recovery, it was immaterial whether the verdict of the jury was founded upon their opinion of the evidence, or rendered in obedience to the instruction of the court as to the law of the case, and therefore a new trial ought not to be granted.</p>

<p>A declaration—after setting out an indenture, by which the defendants leased ' a tenement for five years to T. and others, and which contained a proviso that a joint stock corporation should be organized by T. and his associates, and should take and assume said tenement, upon the terms and conditions stated in said lease, and assume all the liabilities of the lessees, contained in the lease, and that then the lease should be void as to the lessees, and the lessors would accept said company as their tenants, and look to them only for the rent, and for the fulfilment of all the terms, undertaken by the lessees, exactly as if the lease had been assigned by said T. and others to said company; and the defendants would fulfil to said company all their promises and covenants to the lessees—further alleged, that the contemplated company, who were the plaintiffs, were duly organized, and took possession of said tenement, upon the terms contained in said lease, and assumed all the agreements of the lessees, specified therein; that the defendants accepted the plaintiffs as their ienants, and that thereupon the defendants, by said agreement, became bound, and, in consideration thereof, assumed, and' agreed, that they would do and perform for the plaintiffs all things agreed to be done and performed by said T. and others; and, after a further allegation that the plaintiffs had performed all the agreements that T. and others were bound to perform, specified certain breaches of the agreement, for which damages were claimed. On a demurrer to such declaration, it was held; 1. that the original lease was not set out as a ground of recovery, but to show the terms of the new contract; 2. that such declaration embraced sufficient allegations of a consideration for the undertaking of the defendants; 3. that it was not insufficient, because it contained no formal averment of notice to the defendants, of the organization of said company.</p>

This was an action of assumpsit, containing the common money counts, brought to recover the amount of a school-district tax, laid by the defendants. The cause was tried by the jury, at the term of the superior court, holden at Hartford, in January, 1855.

<p>This was a bill in chancery, brought by Miner C. Story against the Norwich and Worcester Railroad Company and John T. Cahill. At the term of the superior court, holden in January, 1854, the cause was referred to a committee, whose report embraced substantially the following facts.</p> <p>In the year 1843, Miner C. Story, the plaintiff, made four contracts with the said Norwich and Worcester Railroad Company, for building the entire extension railroad of said company, from the city of Norwich to its termination at Allyn’s Point, and for constructing for said company a wharf at said Allyn’s Point. One of said contracts embraced the work to be done on, and materials to be furnished for, a certain portion of said extension road, designated in said contracts, and known as section numbers four and five. .</p> <p>Said Story, by said contracts, was to receive from said company, for the work to be done, and materials to be furnished for said section four, $9,751, and for the work to be done, and materials to be furnished for said section five, $6,969; or for the whole work and materials on said sections, $16,720. Said work and materials were to be paid for in monthly payments, as the work progressed, to the extent of four-fifths of the monthly estimates made of the same, by the engineer of said company, and the balance upon the completion of said contract.</p> <p>After making said contract for sections four and five, John T. Cahill, one of the defendants, made a contract with Story, by which Cahill agreed to perform the whole work, and furnish all the materials, on said sections four and five, which said Story was bound to perform and furnish, by his last-mentioned contract with said railroad company, and was to receive therefor from said Story, the sum which Story was to receive from the railroad company, for the same work, namely, the sum of $16,720, and payable in the same manner as the said Story was to receive the same.</p> <p>Said Story gave said Cahill an order on said railroad company, to pay directly to Cahill, from time to time, whatever might become due said Story for the work and materials on sections four and five, on his contract with the company, which order said company refused to accept or to pay.</p> <p>The firm of Fuller & Broad afterward contracted with Cahill to perform that part of the work on sections four and five, which consisted of pile-bridging, and to furnish the materials therefor, for the price of $3.75 per lineal foot, which pile-bridging was included in Cahill’s contract with Story.</p> <p>All the work that was performed, and materials that were furnished in the construction and building of sections four and five, under said contract, was performed and furnished as follows, namely: said Cahill performed and furnished all except the pile-bridging,\ and said Fuller & Broad performed the work, and furnished the materials for the pile-bridging.</p> <p>Said Story made other contracts with sundry other persons for the performance of various other portions of the ' work, and furnishing the materials for which he had contracted on said extension road, and among others with John O’Halloran, Stephen H. Cole, and with said Fuller & Broad.</p> <p>Said Story, and his said sub-contractors, performed a large amount of work and furnished a large amount of materials under their several contracts, and claimed that they had each performed and fulfilled their various contracts for the work and materials'on said extension road, so as to entitle Story to receive his pay therefor, from the railroad company, under his contracts with said company, and each of said sub-contractors to receive from Story their pay under their several contracts with him.</p> <p>Said Story, Cahill, O’Halloran, Cole, and Fuller & Broad, each claimed that, in addition to the!work done, and materials furnished by them, under their several contracts and sub-contracts,-upon said extension road, they had each done much more work, and furnished more materials than said contracts required them to perform, in consequence of changes made and required by said railroad company in the work upon said extension road, and for which they were severally entitled to receive pay from the railroad company as for extra work and materials, beyond the amount required to be done under their several contracts.</p> <p>After Story and his several sub-contractors had ceased to work on said extension road, controversies arose as to whether the contracts, between Story and the railroad company, had been fully performed, and also whether extra work had been done, and extra materials furnished, for which the company were liable; the company claiming that said contracts had not been performed, that they were not liable for any extra work or materials, either to Story or to said subcontractors, and that the company had expended large sums of money in finishing the said contracts, which sums were chargeable to Story.</p> <p>As between Story and Cahill, in relation to the work on sections four and five, the question arose whether Cahill had fully performed the contract, between them ; and like questions arose between Story and the other sub-contractors, in relation to the work done and materials furnished by them under their several sub-contracts with Story.</p> <p>Said O’Halloran, on the 10th day of November, 1843, brought his action of book debt against said Story, by process of foreign attachment, to the county court for New London county, and trusteed said railroad company as the debtors of Story.</p> <p>At the June term of said court in 1844, judgment was rendered in said action in favor of O’Halloran, for twenty-two hundred dollars damages, and seven dollars, eighty-seven cents, costs of suit. O’Halloran, on the 31st day of October, 1844, brought a scire facias against said railroad company to the county court for New London county, to collect his said judgment against said Story, which scire facias was continued in said court until the November term thereof in 1848, and was then withdrawn.</p> <p>Said O’Halloran brought his action of book debt against said railroad company, on the 23d day of August, 1844, to the superior court for New London county, for extra work done and extra materials furnished upon said extension road, which last-mentioned action was continued in said superior court until the March term thereof in 1846, and was then withdrawn.</p> <p>Said Cahill, on the 18th day of November, 1843, brought his action of book debt against said Story to the county court for New London county, by process of foreign attachment, and caused the writ in said action to be served upon the said railroad company as the debtors of said Story, and said action was appealed by said Story to the superior court for said county, and auditors were appointed therein, and a time fixed for the hearing, when it was proposed by said Cahill to said Story, that Story should permit judgment to be taken at once against him in said action, for the purpose of facilitating the bringing of a scire facias upon such judgment against said railroad company, and of more speedily obtaining a judgment against said railroad company on. such scire facias, and of obtaining a determination of the question, whether the contracts with said railroad company had been fulfilled by Story and his sub-contractors, so as to entitle Story to receive any further pay from said railroad company therefor, and said sub-contractors to receive any further pay from Story. It was thereupon agreed between Story and Cahill,-that Cahill might take a judgment in said action against Story, for whatever amount Cahill might claim to be due to him from Story, with the understanding and stipulation that Cahill should enforce and collect the same only out of what might be due to Story from said railroad company, and to the extent only of the amount which should be found due to Story, from the railroad company, for that portion of Story’s contracts which had been performed by Cahill, under his sub-contract with’ Story.</p> <p>The following writing, expressing a part of the aforesaid arrangement, was thereupon executed by Cahill and Story, on the day of its date :</p> <p>“ Norwich, April 1,1846.</p> <p>“ It is hereby agreed between Miner C. Story, and John T. Cahill, that if in the case between them as parties, now pending in the superior court, for the county of New London, judgment shall be entered by default of this date, that the said judgment shall not be prosecuted, only as against the Norwich and Worcester Railroad Company, who are copied as garnishees in said suit.”</p> <p>In pursuance of this arrangement, judgment by default was rendered by said superior court at its March term, in 1846, in favor of Cahill against Story, in said action, for the sum of eight thousand three hundred and thirteen dollars damages, and for thirty-three dollars, ninety-four cents, costs of said action, which sum said Cahill claimed to be due to him from said Story.</p> <p>The following bill of particulars of the various items of which laid last-mentioned sum was composed, was filed by said Cahill with the clerk of said superior court:</p> <p>“ Norwich, April 1, 1846.</p> <p>“ Miner C. Story, Esq.,</p> <p>“ To John T. Cahill, Dr.</p> <p>“ 1843. To balance of contract price for making two sections of extension railroad, as per contract, .■ . . . . . . $6,053.00</p> <p>“ Lack of pile-bridging, as per agreement, . 1,000.00</p> <p>$7,053.00</p> <p>“ April, 1846. Interest on the same to date, . 1,260,00</p> <p>“ Judgment for damages, . $8,313.00”</p> <p>Said Cahill had no other or further claim on Story, except such as arose from his performing labor and furnishing materials for said extension road.</p> <p>Said Cahill, on the 19th day of March, 1845, brought his action of book debt against said railroad company, to the superior court for New London county, and at the March term of said court, in 1847, judgment was rendered in his favor in said action, for six thousand four hundred and fifteen dollars, four cents, damages, and one hundred seventy-four dollars, forty-three cents, costs of suit.</p> <p>Said judgment embraced all. the extra work done, and extra materials furnished by said Cahill, beyond the work required to be done by. his said sub-contract with said Story; and was satisfied by said company, in October, 1847.</p> <p>On the 5th day of December, 1843, said Stephen H. Cole brought his action of assumpsit against said Story, by process of foreign attachment, to the county court for New London county, and trusteed said railroad company as the debtors of Story. At the September term of said superior court, in 1849, judgment was rendered therein, in favor of said Cole, against Story, for fifteen hundred and twenty-four dollars, eighteen cents damages, and seventy dollars, forty-eight cents costs of suit.</p> <p>On the 9th day of March, 1848, said Cole brought his action of book debt against said railroad company, to the superior court for New London county, and at the March term of said court, in 1849, it was withdrawn.</p> <p>On the 6th day of July, 1848, said Story brought his action of debt against said railroad company, to the superior court for New London county, on his contracts with the company, for the amount due from the company to him, for the work done and materials furnished on said extension road under said contracts, and for extra work done and extra materials furnished by him on said extension road, beyond what he was bound to do under his contracts with the company, which last mentioned action was pending in the superior court until its September term in 1849.</p> <p>On the 6th day of December, 1844, the railroad company brought their bill in chancery to the superior court for New London county, against said Story, Cahill, O’Halloran, Cole and others, for the adjustment of all the matters and claims aforesaid, between each of the several parties, to which some of the defendants demurred, and said petition was adjudged insufficient by said court, and was dismissed.</p> <p>After said judgment was rendered in favor of Cahill against Story, the former, on the 25th day of August, 1846, in pursuance of his agreement with Story, and for the purposes proposed by him, as before stated, brought his scire facias against said railroad company to the superior court for New London county.</p> <p>■ The trial of said scire facias was commenced at the September term of said court in 1848. Said Story and several of his sub-contractors cooperated with Cahill in the preparation and prosecution of said case. All said sub-contractors considered themselves interested in the question, the determination of which was one object for which said scire facias was brought,</p> <p>For the purpose of enabling Story to be a witness on said trial in behalf of Cahill, the latter executed and delivered to Story, during the trial, the following discharge:</p> <p>“ Received, New London, Sept. 13,1848, of M. C. Story, one dollar, in consideration of which I hereby agree not to make any claim or demand agains.t him individually on a judgment in my favor against him, on which the Norwich and Worcester Railroad Company are copied by me in foreign attachment as debtors of said Story, reserving to myself the right to proceed against said company in scire facias, to recover said judgment.</p> <p>“John T. Cahill.”</p> <p>Story was thereupon admitted as a witness in behalf of Cahill, and among other things he testified that he had no interest, directly or indirectly, in the judgment of Cahill against him.</p> <p>In the course of the trial of said scire facias, the railroad company sought to make use of the aforesaid scire facias brought by O’Halloran against them, which was then pending, and was held by some third person in trust for said company, and was under their control,, for the purpose of postponing, or in some way prejudicing said claim of Cahill.</p> <p>Sundry informalities in the proceedings, both in the scire facias of O’Halloran, and in the original suit of Cahill against Story, were claimed by the respective parties to have been discovered. A suspension of said trial was allowed by the court for the purposé of enabling the parties to negotiate terms of settlement, or of submission to arbitration.</p> <p>During said suspension, and before a submission to arbitration was agreed upon, an assignment was executed, and delivered by said Story to said Cahill, dated September 15, 1848, of all the money, which was due, or might be due to him, from said railroad company, for labor and materials furnished for said extension road, and said assignment directed said company to pay over the same ■ to Cahill, and in default of such payment, empowered Cahill to sue for the same. Said assignment was executed, in consequence of the apprehension,' occasioned by said claim of said railroad company, of an informality in the. proceedings, in said original suit of Cahill against Story, which it was feared might postpone the lien of Cahill upon the amount due from said company to Story, or otherwise prejudice Cahill’s claim upon the company, and for the sole purpose of giving to said judgment of Cahill against Story, the same priority of lien as it would have, if no such informality existed, and upon the understanding and agreement that it should have no other, or greater effect, than to give to Cahill his priority of lien in the collection of his' judgment against Story, from said company.</p> <p>Before the time for which the suspension of said trial was allowed, had expired, the terms of a submission to arbitration of their respective claims were agreed upon by the parties to said scire facias, on trial, and by Story and several of his sub-contractors; and a writing of submission was.thereupon drawn up, and was then executed by such of the parties as-were present, and was-subsequently executed by the remaining parties thereto, and-said scire facias of Cahill was continued to the next term of the. court.</p> <p>It Was agreed by said submission, that the legal priorities of said parties should be preserved, and if anything should be found to be due by said company to said Story, that said parties should be entitled to receive the same in the order of their several attachments. And that the amount found due by said arbitrators, should be the rule of damages -in said several suits, and said. auditors should award as to the amount due, by any of the parties signing said submission, to any other . of said parties, and finally adjust and settle all questions between them or any of them.</p> <p>The time, within which said award was to be made, was extended to the first day of June, 1849.</p> <p>The arbitrators, named in said submission, afterward met all the parties thereto, and heard them all, with their evidence and counsel, in relation to all the matters so submitted to them. At the conclusion of said hearing, when all the parties to said submission were present, either personally or by counsel, the arbitrators inquired of the various parties before them, whether it was understood by them that the arbitrators were to go back of the judgment in favor of Cahill against Story, and of the aforesaid assignment from Story to Cahill, or whether the amount, found due to said Story from said company, was to be allowed to Cahill to the extent of his judgment and assignment, and by virtue of them. The counsel of Cahill thereupon at first claimed that the amount found due to Story, should be allowed by the arbitrators to Cahill. Said Story thereupon claimed that it was not to be so allowed, but that the arbitrators were to go back of the judgment and assignment, and were to allow to Cahill only what they should find due to Cahill, and that the rest should be allowed to him, Story. All parties then assented to said claim of Story.</p> <p>Jn consequence of said assent and understanding of said parties, the arbitrators, in making up their award on said submission, went back of the judgment and assignment, and determined the respective rights of the several parties to the moneys which were due from the railroad company to Story, irrespective of the judgment and assignment.</p> <p>Said arbitrators made and published their award in writing, on the 16th day of May, 1849, and all the parties thereto were fully informed of the same.</p> <p>On the 26th of May, 1849, Story paid said arbitrators the full amount of their fees, and of the costs and expenses of the arbitration, as allowed and taxed by the arbitrators, namely, the sum of two hundred-and seventy-eight dollars, thirty-one cents, no part of which sum has ever been repaid to Story.</p> <p>After making and publishing said award, Cahill set up the claim that he was entitled, by virtue of said assignment, to receive for his own use, of said company, the moneys directed in said award to be paid to Story, and demanded of the company, that the same should be paid to him, and claimed that he was authorized by the assignment to execute a valid discharge for the same.</p> <p>Said railroad company knew that Story denied the right of Cahill to said moneys, or to execute a valid discharge for the same, and that he claimed that the same should be paid to him.</p> <p>Said company did not use reasonable care and diligence in ascertaining the respective rights of Cahill, and of Story, to said moneys so awarded to Story; and through want of such care and diligence, thinking that Cahill might have a right to receive the moneys, directed by said award to be paid to Story, did offer to Cahill to pay to him the moneys, awarded both to him and to Story, if he would indemnify and save harmless said company from all loss or damage, which the company might sustain by reason of such payment, and would secure such payment in the bonds of the company at their par value, then of the market value of sixty-seven cents on the dollar.</p> <p>Cahill agreed so to indemnify the company, and to receive payment in the manner proposed, and said company, relying on the indemnity so agreed to be given, delivered to Cahill seventeen bonds of said company, of different denominations, of the par value in all of nine thousand dollars, and also four hundred and thirty-eight dollars, sixty-five cents, in cash, which bonds and cash, Cahill then received, in full satisfaction of the moneys, directed in the award to be paid by the railroad company to him and to Story, and of one-half of the fees of the arbitrators, which by the award were directed to be paid to Story, and did thereupon execute and deliver to the company the following writing:</p> <p>“ In consideration of nine thousand, four hundred and thirty-eight dollars, sixty five cents, received of the Norwich and "Worcester Railroad Company, by their treasurer, G. L. Perkins, in full for the amount awarded by Honorable Thomas S. Williams and Honorable Henry M. Waite, arbitrators, by their award dated May 16th, A. X). 1849, to myself and Miner C. Story, I hereby release and discharge said railroad company from said claims and demands, and all claims and demands against said company, and the suits pending in court in my favor and in favor of said Story, said company having paid me the taxable cost in,this suit in my favor, and in favor of said Story. And I hereby agree to indemnify and save harmless said company from any claim or demand by said Story, or any person claiming for, or under said Story, for or on account of said sums so awarded to said Story, and from loss or damage arising therefrom, and especially a claim of John O’Brien against said Story, on which suit has been commenced by said O’Brien against said Story, and a copy left with the said company, claiming that they are the agents, factors, trustees and debtors of said Story; and having received from said company the oné-half of the arbitrators’ fees and expenses, the one-half being the sum of one hundred and twenty-one dollars, sixteen cents, I agree to save the said company harmless from any claim, from any person, for payment of any further sum, on account of said fees and expenses.</p> <p>“ John T. Cahill, [seal.]</p> <p>4 bonds for $1,000, viz., 13,14, 43, 44, . -. $4,000.00</p> <p>8 “ « 500, “ 313,316,318,327,328,</p> <p>329, 340, 341, 4,000.00</p> <p>5 « « 200° “ 369,370,371,372,373. 1,000.00</p> <p>9,000.00</p> <p>' Cash, 438.65</p> <p>$9,438.65</p> <p>“ Received the above bonds and cash for the amount above expressed in receipt.</p> <p>“John T. Cahill.”</p> <p>For the purpose of further security, and as collateral to said indemnity, Cahill, at the same time or soon afterward, delivered to the company, bonds of the New Hampshire Central Railroad Company, of an amount and value sufficient to meet the liabilities of his said indemnity. All the real and personal property of said railroad company, was at this time encumbered with mortgages; and the company had no means of meeting their liabilities except by issuing their bonds; and it was usual for the company for a considerable period of time before and after this settlement with Cahill, to settle all claims against them,-except for current expenses, by issuing and delivering their bonds, payable at a distant period.</p> <p>Said Cahill and said company, after the aforesaid settlement, cooperated in endeavoring to prevent Story from obtaining a judgment in his action against the company, then pending before the superior court for New London county. And afterward, at the September term of said court in 1849, said company and Cahill procured said last-mentioned action to be nonsuited, and a nonsuit was, by order of the court, entered in said case.</p> <p>Soon afterward, said railroad company delivered up to Cahill the bonds of the New Hampshire railroad-company, which he had left with said company- as collateral security.</p> <p>After said award was made and published, said railroad company paid in their bonds, estimated at their par value, to Broad & Daniels, the amount directed by the award to be paid by the company to them.</p> <p>In the month of January, 1850, Story made a demand on the railroad company for the payment to "him of the amount directed in the award to be paid by the company to him ; and the company refused to pay the same to him, or any part thereof, claiming that they had already paid the same to Cahill, by virtue of his judgment against Story, and of said assignment.</p> <p>No part of the moneys so awarded'to Story, has ever been paid to him ; and he used reasonable diligence in pursuing his claim against said company under said award, from the time he was notified of the same.</p> <p>The court accepted the report of the committee, and reserved the case for the advice of this court.</p>

<p>This was an action on the case,-brought by Cornelius Munson against John D. Munson and Robert C. Munson.</p> <p>The declaration contained twelve counts, seven of which were in trespass, and the remainder in trover. At the term of the superior court for the county of New Haven, the cause was tried by the jury, on the general issue.</p> <p>On the trial, it was proved, that the plaintiff was originally the owner of certain cows, oxen, swine, sheep, and other stock mentioned in the declaration; and that the defendants had never had any title thereto, except such as they acquired by virtue of the following deed:</p> <p>“ To all whom, these presents shall come, Greeting:</p> <p>“ Know ye, that 1, Cornelius Munson, of Watertown, in the county of Litchfield, and state of Connecticut, for the consideration- of the love, affection and good will which I have for my sons, John D. Munson, and Cornelius R. Munson, both of said Watertown, as well as for divers other considerations, sums of money and undertakings, which will appear in the condition of this instrument, which have been received to my full satisfaction of my said sons, John D. and Cornelius R., do give, grant, bargain, convey and confirm unto the said John D. and Cornelius R. the following described land and real estate. * * *</p> <p>“ To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto them, the said grantees, their heirs and assigns forever, to them and their proper use and behoof; and also, I, the said grantor, do for myself, my heirs, executors and administrators, covenant with the said grantees, their heirs and assigns, that at, and until the ensealing of these presents, I am well seized of the premises as a good, and indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written, and that the same is free of all incumbrances whatsoever. And furthermore, I, the said grantor, do, by these presents, bind myself and my heirs, forever, to warrant and defend the above granted and bargained premises to them, the said grantors, their heirs and assigns, against all claims and demands whatsoever.</p> <p>• “ And I do further hereby assign, transfer and deliver to my said sons, John D. and Cornelius R., all my stock of every description, including horse, colt, oxen, cows, young cattle, swine and sheep, it being understood that my said two sons are to allow me, and furnish me with one suitable and proper horse, to use whenever and wherever I choose, and that my said sons are not to reduce or impair the value of the stock I have hereby assigned and conveyed to them; I likewise assign to my said sons all my farming-tools and utensils, of every name and description, and likewise my wagons, to be theirs forever.</p> <p>a Always provided, that if my said sons, John D. and Cornelius R., shall furnish their mother, Fanny Munson, with a suitable and proper support in all things reasonable, during her natural life, and that said land and property and chattels shall be liable therefor; and they are, that is to say, my said sons, John D. and Cornelius R., are hereby bound by this instrument to pay my daughter, Nancy M., the wife of Truman Percy, at or- within three years from date, the sum of $300, with interest, after it falls due ; and they are likewise to assume and pay the following notes or debts which I owe, in a reasonable time, viz., one or more notes due Samuel Elton, of about two hundred dollars, being all I owe him; and John Nettleton, of said Watertown, a debt of about one hundred dollars, being all I owe him; and likewise all the other notes and accounts which I owe, which I can not now particularly enumerate, then, and in case of my said sons, John D. and Cornelius K,., performing and fulfilling all the conditions above named, in as full and ample a manner as is therein written, the foregoing deed, conveyance and assignment, shall be perfectly good and valid, but otherwise to be void.”</p> <p>It was admitted, that said deed was duly executed by the plaintiff, and delivered to the defendants, who were his sons, about the date thereof, together with said stock and other property, real and personal, therein specified, and of which the defendants immediately thereafter entered into possession, under said deed.</p> <p>It was proved and not denied, that the defendants had, from time to time, made sales and exchanges of said stock or the greater part thereof, and had, thereupon, purchased and received, or otherwise acquired and continued to keep in lieu thereof, other stock of equal or greater value than the stock so conveyed to them by the plaintiff, and sold or exchanged.</p> <p>And it was thereupon claimed by the plaintiff’s counsel, that the legal construction of said deed was such, that the title to the stock so sold and exchanged by the defendants, was retained by the plaintiff, and that the sale or exchange thereof was a tortious conversion of the same, and that the defendants were liable, in this action, to the plaintiff, for the value thereof,-notwithstanding they had continued to keep in lieu thereof, other stock of equal or greater value ; which construction was denied, by the counsel for the defendants, to be correct, who insisted, on the contrary, that by virtue of said deed, the defendants hadgood right to sell and exchange said stock, and to substitute therefor other stock of equal or greater value, as it was proved and admitted they had done.</p> <p>The plaintiff, on said trial, abandoned all the counts in trespass in said declaration, and disclaimed any right to recover thereon. The counsel for the plaintiff having introduced evidence under the first count in his declaration, tending to prove the conversion of a part of the property specified in said count, viz., the stock before mentioned, thereupon offered testimony under the other several counts in trover, successively, tending to prove divers other subsequent and distinct conversions, on divers days, of other articles of personal property specified in said first and other counts in trover; to the admission of which testimony the defendants’ counsel objected, on the ground that said several counts in trover are averred to be for the same causes of action, accruing at one and the same time; but the court overruled said objection, and admitted the evidence so offered, tending to prove such successive conversions, under said other counts in trover respectively.</p> <p>For the purpose of aiding in the construction of said deed, by the application of the language used therein to the circumstances existing, and in relation to which said deed was executed, the defendants’ counsel offered testimony to prove, that, at the time of the execution and delivery thereof, the character of said stock was such, in respect to the ages of the animals, the capabilities of the farm for their support, the purposes and uses for which such animals had been and were there ordinarily raised, kept, and disposed of, and the usages and requirements of good husbandry, as to render it obviously proper, from time to time, to sell.and dispose of the same, and to substitute therefor other stock of equal value, and of suitable ages and condition, in the manner the defendants were proved and admitted to have done, as aforesaid; to which testimony the plaintiff’s counsel objected, on the ground that the same was inadmissible for the purpose for which the same was offered as aforesaid, and was irrelevant to the issue. The testimony was received, subject to said objection, and to the ruling of the court, in the charge to the jury in relation thereto.</p> <p>It was proved on the part of the defendants, that the defendants had paid the debts of the plaintiff, and also the sum of three hundred dollars to their sister, Nancy Percy, as required by the condition of said deed, amounting in all to eight or ten hundred dollars ; an amount greatly exceeding j;he value of said stock and the other personal property conveyed by said deed; and the defendants introduced evidence to prove, and claimed that they had proved, that they had kept and fulfilled,-in all respects, each of the other conditions, or requirements of said deed.</p> <p>The defendant’s counsel claimed, that the court should instruct the jury, that, by the true and legal construction of said deed, irrespective of the testimony so offered and objected to, the defendants had a right to dispose of said stock, or any part thereof, in manner aforesaid, and were only required thereby to keep other stock in lieu thereof, of equal value, and not the same animals specifically, as was claimed by the counsel for the plaintiff.</p> <p>They also insisted that the circumstances under which said deed was executed, to prove which they had introduced evidence as aforesaid, might properly be considered, in connection with the language used in said deed, in relation to said stock, and that in view of said evidence, said language must be deemed to have been used in the sense claimed by the defendants, and acted upon by them.</p> <p>The defendants denied that they had been guilty of the tortious conversion of any other property of the plaintiff, and introduced evidence tending to disprove the same; and in regard to said stock, they further claimed and prayed the court to instruct the jury, that if the sale and exchange thereof, was a tortious conversion of the same, for which the defendants would be liable to the plaintiff, yet, if the defendants had paid, for the benefit of the plaintiff, an amount exceeding the value thereof, and had kept and performed the other conditions of said deed, the plaintiff had not been damnified thereby, and could not recover therefor, or at most, that he could only be entitled to nominal damages for such conversion, but the court omitted and refused so to instruct the jury.</p> <p>The court rejected the testimony offered by the defendants, as aforesaid, and thereupon instructed the jury, according to the claim of the counsel for the plaintiff, that if they should find that the defendants had sold, without the license or permission of the plaintiff, said stock, or any part thereof, specified in said deed, such sale was a tortious conversion, for which the plaintiff would be entitled to their verdict for the value thereof, with interest from the time of such conversion.</p> <p>The jury rendered their verdict in favor of the plaintiff, and the defendants moved for a new trial, on the ground that the court erred, and mistook the law in excluding the evidence offered by them, and in refusing to instruct the jury as claimed by their counsel, and in charging them in manner aforesaid, and against the claims of the defendants as to the construction of said deed, and the damages recoverable by the plaintiff.</p>

This was an action, brought upon the statute law of this state, entitled “ An Act concerning Highways and Bridges.” Rev. Stat., tit. 24, ch. 1, § 6.

Brewster presented a petition to the court of probate for the district of New Haven, alleging that he was an attaching creditor of Shelton, and praying for the appointment of a trustee of the property of Shelton, for the benefit of his creditors, pursuant to the provisions of the statute of 1853, entitled “ An act for the relief of insolvent debtors, and for the more equal distribution of their effects among their creditors.” Loren Cowdrey and James Laurie, also attaching…

This was a bill to foreclose mortgaged premises. The cause came on, for hearing, before the superior court for New Haven county, at the October term, 1854, when that court made a special finding, and reserved the case for the advice of this court. The material facts, thus found, are the following.

This was a bill to foreclose mortgaged premises. The cause came on for hearing before the superior court for New Haven county, at the October term, 1854, when that court made a finding of the facts, and reserved the case for the advice of this court. The material facts, upon which the opinion of the court is founded, are the following. The plaintiffs were organized in the manner, and with the powers, stated in the preceding case, in their favor, against Wilcox and others.

This was an action upon a promissory note, payable to Maria Edwards, the wife of the plaintiff, Lewis B. Edwards, and given to her while a married woman. The suit was brought in the joint names of the husband and wife, to the county court for New Haven county, where the plaintiffs obtained a verdict. The defendant then moved in arrest of judgment, and his motion was sustained by that court.

This was a petition, brought to the county court for New-Haven county, by Isaac White, against Alfred French and others.

This was an appeal from a decree of the court of probate for the district of Meriden.

<p>The receiving and recording of an assignment, made by an insolvent debtor, pursuant to the provisions of the statute, relating to the settlement of insolvent estates assigned for the benefit of creditors, are ministerial acts.</p> <p>The probate court may receive and record a voluntary assignment of the estate of an insolvent debtor, though made during the pendency of a petition, by one of his creditors, for the appointment of a trustee of such debtors* estate, under the statute, entitled “An act for. the relief of insolvent debtors, and for the more equal distribution of their effects among their creditors.”</p> <p>A voluntary assignment is not rendered void, by a provision, that if the trustee therein named should decline to accept and execute said trust, the assignor should have the power of appointing another trustee in his stead, and in place of any other trustee, thereafter appointed by said assignor, and who might decline said trust.</p>

These were actions of account, and were referred to auditors, who reported in favor of Day, in both cases. Lockwood filed remonstrances against the acceptance of their reports, and the superior court for Fairfield county, at the April term, 1855, found the facts therein arising, and reserved the cases for the advice of this court.

This was a petition, brought by certain inhabitants of the borough of Danbury, to the term of the county court for Fairfield county, holden in December, 1853, praying for the laying out and establishing a new highway, within the limits of said borough.

This was a complaint preferred, by a grandjuror of the town of Darien, to a justice of the peace, against Stephen Raymond, for keeping spirituous and intoxicatingliquors, with intent to sell the same, in violation of the statute passed in 1854, entitled “An act for the suppression of intemperance.’’ A trial was had before the justice, and the defendant was found guilty.

This was an action of trover, brought in the name of Ephraim Parker against George W. Middlebrook, and tried before the city court for the city of Bridgeport, upon the general issue, on the first Monday of October, 1854. On the trial, it was proved, on the part of the plaintiff, that, until the month of February, 1852, he was a resident of Utica,-in the state of New York, where he resided with his wife and family.

This was an action of ejectment, brought to the superior court for Fairfield county, by William H. Hill and others, against Francis Meeker, to which the defendants pleaded the general issue. The plaintiffs, who were the children and heirs at law of John L. Hill, deceased, claimed title to the demanded premises by virtue of a mortgage deed, from Arza Meeker to said John L., conditioned for the payment of two promissory notes, together amounting to $5,900.

This was an action of ejectment for a parcel of land, lying in the town of Westport, tried at the term of the superior court for Fairfield county, holden in August, 1855. The plaintiff and defendant each claimed title to the premises in question, by deeds from one Charles Fox.

This was a bill brought to the superior court for the county of Litchfield, by John Adam, against the Ames Iron Company and others, alleging that the plaintiff was tenant in common in fee simple with the defendants, of a certain tract of land, situated in the town of Salisbury, in said county, the plaintiff' owning five undivided eighths thereof, and the defendants the remainder, and praying for a partition of said premises among the several owners of the same.

This was a grandjuror’s complaint against Herman Chapin, for a nuisance, in erecting a post and board fence across a public highway, in the town of New Hartford. The complaint was founded upon the statute, entitled, “An act to prevent and remove nuisances, from highways, rivers and water-courses,” and was originally brought before a justice of the peace.

This cause came on for a hearing upon the bill of the plaintiff and the cross bill of Abel H. Clemons, one of the defendants, before the superior court for Litchfield county, at the August term, 1855, when the court found the facts in the case, and reserved it for the advice of this court. The material facts, thus found, are the following. Benjamin Bissell, the elder, died in April, 1849, leaving a widow and six children, and a large real and personal estate.

This was an action of trespass, vi et armis, brought by John H. Crocker against the New London, Willimantic, and Palmer Railroad Company, to recover damages for personal injuries, occasioned by his forcible removal from the defendants’ railroad cars. • The defendants pleaded not guilty; and, on this' issue, the cause was tried at Norwich, at the term of the superior court, holden in December, 1854.

This was an action for money had and received, brought originally against Jacob W. Kinney, who died during the pendency of the suit, and the present defendant, as the executrix of his will, was made a party. The cause was tried before the jury, in the superior court, at the August term, 1855.

This was an action, brought upon the statute, entitled “An act concerning fences arid common fields,” to recover double the expense of repairing the defendant’s part of the divisional fence, between their adjoining lands, incurred by the plaintiff in pursuance of the provisions of the statute. The material parts of the statute, upon which the action is founded, are the following.

This was a bill in chancery, brought to the superior court for the county of Middlesex, at the February term, 1853, by Dan D. Niles, Alexander N. Niles, and Julius J. Niles, and was substantially as follows.

This was a complaint, preferred by Leonard Burrows, as a grand-juror of the town of Middletown, to a justice of the • peace, against James Corrigan, for selling spirituous liquor, contrary to the statute.

This was a bill in equity, brought to the term of the superior court for the county of Middlesex, holden in March, 1855, by Origen Utley and Charles Hubbard, as trustees of the estate assigned for the benefit of his creditors, by Andrew Coe, an insolvent debtor, against Henry D. Smith, Alfred M. Bailey, William R. Smith and others.

This was a complaint, preferred by Francis Chambers as a grand juror of the town of Bridgeport, to a justice of the peace, against Joseph Brown, for stealing a silver watch, which was alleged to be of the value of thirty-five dollars. After a trial before the justice, upon the plea of not guilty, the defendant was found guilty, and the value of the property alleged to have been stolen, was found to be thirty dollars.

This was a bill in chancery, brought by the plaintiffs, who were the assignees of John Q,. Adams, for the purpose of enforcing a mechanic’s lien upon the passenger station-house of the defendants, situated in Danbury. At the term of the superior court, holden in October, 1855, the cause was referred to a committee, whose report embraced the following facts.

This was an action of trespass vi et amis, brought by Alexander Beha against Isaac Blackman and Edwin Wooster, demanding fifty dollars damages. The suit was answerable before a justice of the peace, on the 4th day of August, 1855, and on that day the defendants appeared, and severally pleaded in abatement the defective service of the plaintiff’s writ.

<p>To constitute a title to a promissory note by endorsement, a delivery of the note hy the endorser to the endorsee, or that which is equivalent to such delivery, is necessary.</p> <p>The holder of a promissory note, who endorses it to an agent, merely for the purpose of enabling the latter to collect it for the former, may sustain a suit on it in his own name, and it is not necessary, for that purpose, that his endorsement should be stuck out, either before, or at the trial.</p>

Trespass against John Richardson and Benjamin Webster, for taking and.carrying away certain articles of household furniture, the property of the plaintiif. The cause was tried before the superior court for the county of New Haven, at the term holden in October, 1855.

This was an action on the case, in the nature of waste, brought by the town of Hamden against Lemuel Eice, for cutting and carrying away trees from a certain tract of land lying in said town.

This was an action of replevin, brought originally before a justice of the peace, for taking, and impounding nine pigs.

This was an indictment against the prisoner, Isaac Randolph, for murder. The cause was tried at New Haven, before the superior court, October term, 1855. On the trial, Maria Tuttle and Delia Sayres were offered as material witnesses, and testified in behalf of the state.

This was a bill in chancery, brought by Loyal S. Pond, and Samuel Gilman of the city of New York, and Louis F. Mack of Brooklyn, partners, under the name of Pond, Gilman and Mack, against Thomas B. Jewett, and David Phipps Clark, both of the city of New Haven.

In pursuance of the advice of this court, 22 Conn. R., 101, the superior court, for the county of New Haven, reversed the judgment of the county court, ordering this cause to be erased from the docket, and thereupon rendered judgment in favor of the defendant to recover his costs, taxed at thirty-nine dollars and seven cents.

This was an action of trespass on the case, tried before the superior court for the county of New Haven, in October, 1855.

This was a scire facias in a process of foreign attachment, setting forth a judgment, obtained by the plaintiff, against Hosea B. Harvey, Samuel J. Root, William Needham, and Walter W. Scovill, partners, .under the firm of Harvey, Need-ham, Root & Co., before the city court, for the city of New Haven, holden on the 8th day of May, 1852, in an action of book debt.

This was an action of trover for a cow. On the trial upon the general issue, it was found that the cow, described in the plaintift’s declaration, was, on the 5th day of November, 1853, the property of the plaintiff.

The declaration, in the above entitled action, alleged that the defendant was the bailiff and partner of the plaintiff, from March 22d, 1819, to November 1, 1852. The defendant having filed a plea in abatement of the plaintiff’s writ, that plea was, by the superior court, in accordance with the advice of this court, (see 22 Conn. R., 486,) adjudged to be insufficient.

This was an appeal from the doings of the commissioners, on the estate of Samuel Burgis, deceased, in relation to the claim of Wm. Kelsey against that estate. The superior court for the county of New Haven, at the term holden in December, 1855, found the following facts, and reserved the case for the advice of this court. On the 6th day of March, 1845, Samuel Burgis, then in full life, borrowed of Wm.

This was a bill in chancery, brought by Charles Bassett against Daniel Holbrook, and the administrators on the estate of Clark Miles, deceased, for a decree against the defendants, foreclosing all their right in equity to recover certain premises, mortgaged by said Holbrook to secure certain notes, given by him to the plaintiff, praying also that the court would order that said administrators should deliver to the plaintiffs the notes and mortgage described in the bill, and…

This was an action on the case, founded on the liability of the defendants as common carriers.

This was an action by an officer against Ransom Gaylord and Lawrence Merriam, claiming damages of the defendants, for their refusal to surrender property, which had been taken by three writs of attachment against the said Gaylord, and delivered to the defendants upon their written receipt, promising to re-deliver the same to him, or some other proper officer, on demand, and acknowledging themselves estopped from denying that said property had been attached by the plaintiff,…

A new trial having been granted in the above entitled cause, (see ante p. 132,) it again came on for trial at the term of the superior court, for New Haven county, hold-en in December, 1855. On the trial upon the general issue, the plaintiff claimed he had proved the truth of the allegations in his declaration. The defendants admitted that it was their duty to keep the bridge in repair, and insisted that they had done so.

<p>A. at his own expense, built a plaster mill on the land of B., in pursuance of a verbal agreement that A. might own, and use said mill as his own. Subsequently B. conveyed said land to the defendant, who, by a parol agreement, bought the mill of A., gave his promissory note for the price, and enjoyed it thereafter for some years. Held, that there was a valid consideraation for the mote.</p> <p>Where the defendant, in an action upon said note, claimed that it was given, while he was subject to an overseer, appointed in the second stage, without such overseer’s consent, and was therefore invalid; and it appeared that such overseer was appointed for no limited time, but generally, and while the defendant was subject to an overseer in the first stage, who had been appointed for the term of one year, which had not expired when the overseer in the second stage was appointed, but which expired before such note was given; it was held, that said appointment of the overseer in the second stage being made generally, continued, at most, only for the remainder of such term, for which said overseer in the first stage was appointed, and therefore, that when the note was made, the defendant was under no disability.</p> <p>The interest upon a promissory note for a particular sum, payable with annual interest on the‘happening of a certain event, should be computed from the date of such note.</p>

<p>On a motion for a new trial, the supreme court of errors will be confined to the questions made on the trial of the cause in the court below.</p> <p>Where it was claimed, on a motion for a new trial, that a deposition, which had been admitted by the court below, should have been rejected, because the notary public, before whom it was taken, had no power to exercise his office in the county within which it was taken, but the admission of such deposition had been objected to, entirely upon other grounds than this; it was held, that it must he assumed that such notary public had authority to act in the county, where the deposition was taken.</p> <p>Where a notary public, before whom a deposition was taken, certified that the adverse party, living more than twenty miles from the place of caption, was duly notified, and not present; it was held, that this was sufficient evidence, in the first instance, of the fact of such notice, open however to contradiction.</p> <p>Where such evidence was met, on the trial of the cause, by proof that the defendant received no express notice of the taking of the deposition, except a notice that depositions would be taken at a time and place designated for that purpose, and said deposition, as appeared from the certificate of the officer who took the same, was taken at a subsequent day, and another place; it was held, that it should be inferred, from such certificate, that the taking of such deposition was adjourned to the time and place at which it was taken, and was therefore admissible. [One judge dissenting.]</p>

<p>To constitute a valid contract, the minds of the parties must assent to the same thing, in the same sense.</p> <p>The defendants applied to the agent of a railroad corporation, to transport fifty-thousand laths from M. to H. and enquired the expense of transportation. The latter, having asked how many bundles that quantity would make, a companion of the defendants, to whom they referred the enquiry, replied, five hundred, but said agent understood him to say one hundred, and he thereupon gave the defendant the price of transporting one hundred bundles, as the price of transporting the five hundred bundles, which price the defendants agreed to pay. Held, that the misunderstanding of the agent, in regard to the quantity of laths, prevented that meeting of the minds of the parties, which was essential to a contract between them.</p> <p>Such corporation having discovered such misunderstanding, and, while they were conscious that the defendants had no knowledge of it, forwarded said laths. Held, in an action brought to recover the price of transportation, at the usual rates, that this circumstance did not preclude the plaintiffs from claiming, on the trial, that such a mistake occurred, but was merely evidence, to be submitted to the jury, of the plaintiffs’ assent to the price, as understood by the defendants.</p> <p>Where, on such trial, the defendants claimed that the transmission of the laths by the plaintiffs constituted, in law, an assent by them to the terms of the contract, as understood by the defendants, and that the plaintiffs were therefore precluded from showing that there was any such mistake, and the court instructed the jury in conformity with such request; it was held, that such instruction was erroneous.</p>

This was a complaint, preferred by three residents of the town of Bloomfield against Nathan F. Miller, to a justice of the peace, for a violation of the act of 1854, for the suppression of intemperance. The complaint embraced several counts substantially alike in form, but alleging the sale of intoxicating liquors on different days.

This was a complaint, preferred by a grand juror of the town of Enfield, to a justice of the peace, for a violation of the statute, entitled an “ act for the suppression of intemperance.” The complaint was as follows: “ On the 26th day of October, A. JD., 1855, at said Enfield, John Miller, now of said Enfield, with force and arms, did sell spirituous and intoxicating liquors to Chauncey Baker of said Enfield, against the peace, and contrary to the statute in such case made…

This was an action of book-debt, brought by Johnson and Parsons against Henry C. Ransom, to the term of the city court of the city of Hartford, holden in September, 1854. By the rules of said court, pleas in abatement are required to be filed on or before the opening of the court, on the second day of the first term after the action is brought.

<p>On the hearing of a bill in chancery against A. B. C. D. E. F. and G., to establish and protect, in the plaintiff, a right to maintain a dam, it appeared that in 1845, A. and B. erected a manufactory upon land then owned by them, and also, upon adjoining land, then owned by C. and D., for the purpose of creating a water power for said manufactory, they erected the dam in question, by means of which the land of A. B. C. D. and E. was flooded, it being mutually agreed that said dam might be maintained so long as the parties could agree, on the payment of seven dollars annually. G. afterward purchased of B. one acre of the land so flooded, and in April, 1853, A. and B., by a warranty-deed, with the usual covenants, conveyed to F. by exact lines, the land, with said manufactory standing thereon, and verbally represented that the dam was appurtenant thereto, and could be maintained for ninety-nine years, at its present height, and that the several owners of the land flooded by means of it would lease the same to him. And G. and D. executed leases for that purpose, reserving therein a stipulated annual rent. In 1854, F. conveyed said land and manufactory to the plaintiff, adding to the description the words “being the same land, and all the same, and none but the same that was deeded to me by A. and B.” The plaintiff immediately, and with the knowledge of all the defendants, and without objection from any of them, commenced, and for three months continued to make repairs upon the dam. No rent for the land flooded had ever been paid, either by F., or by the plaintiff, and the time limited for its payment in the leases, having expired, A. and G. removed the dam. Held 1. that G. E. and F. ought not to have been made parties to said bill. 2. That the other defendants were not estopped from denying the plaintiff’s right to maintain said dam. 3. That the only right of the plaintiff in the land of G. and I). was acquired by their leases to him. 4. That the plaintiff, having neglected to pay the rent reserved in such leases, the lessors had a right to remove said dam.</p>

This was an action of trespass against Talcott Mather, and Seth L. Tinkham, for the taking of a wagon, claimed by the plaintiff, as his property. The cause was tried before the superior court, at Hartford, October term, 1856.

This was an action brought by Davis and Aubin, against-Nelson K. Benton. The declaration embraced a count upon a promissory note, executed by Bezaleel Sexton, and endorsed by the defendant, and also the common money counts. The defendant pleaded the general issue, and the cause was tried at the term of the superior court holden at Hartford, in December, 1855.

This was an action on the case, brought by Euclid Chadsey against Joel T. Greene., The declaration contained two counts; one for a breach of warranty, and the other for a fraud in the sale of a horse. The defendant pleaded first, the general issue.

This was an action on the case, brought by Augustus Soule, administrator on the estate of James H. Gray, deceased, against the New York and New Haven railroad company.

This was an action of assumpsit, brought to the city court for the city of Hartford, against the defendant, as a party liable on two promissory notes. The declaration embraced the common counts and several special counts.

This was an action of book-debt, in common form, brought by Rockwell against Colgrove.

This was an action of ejectment, brought originally to the city court of the city of Hartford, demanding surrendry and peaceable possession of the premises described in the declaration, and the sum of ninety dollars damages. To the plaintiff’s declaration the defendant demurred generally. The court adjudged the declaration sufficient, and thereupon rendered judgment for the plaintiff.

Action of assumpsit on the common counts. The defendants, having moved for a bill of particulars of the plaintiffs’ demands, the same was exhibited as follows : “The United States Annuity and Life Insurance Company, 1850. To James Goodwin and Guy R. Phelps, Dr. For expenses paid in obtaining charter, including commissioner’s fees, and interest on money advanced, $1,000 Endorsed as follows: James Goodwin and Guy R. Phelps.

This was an action of assumpsit to recover the amount of a promissory note. The declaration contained a special count to which the common counts were added. The note declared on was for the sum of $755.87; was dated at Albany on the 16th day of January, 1849; was payable ninety days after date, at the bank of Albany, to the order of the defendant, and signed and endorsed by him. The defendant pleaded the general issue with notice of special matter to be given in evidence.

The decree of the superior court, in the above entitled cause, having been reversed by this court, see 23 Conn. R., 79, the action was again entered in the superior court, and the former committee re-appointed, to find such facts raised by the pleadings, as were not explicitly found in said former report, and to correct any error, or deficiency, in the former finding.

This was an action on a covenant in the following terms : “ Articles of Agreement made and concluded upon, this 17th day of January, A. D. 1852, between Gilson Lewis, of Suffield, in the county of Hartford, and state of Connecticut, of the one part and Israel Smith, of Windsor, in the county and state aforesaid, of the other part.