Volume 26 — Connecticut Reports

Assumpsit oil the following note: “Meriden, Feb. 6, 1853. On the first day of January, 1854, I promise to pay to the order of Patrick J. Clark, four hundred dollars, value received, with interest from date. Anson L. Bemis.” The note was indorsed in blank by the payee.

This was a petition in chancery to compel the respondent to convey to the petitioner the legal title outstanding in him as trustee to the real estate below described.

This was an appeal to the superior court from sundry decrees of the court of probate of the district of East Windsor, in the settlement of the estate of Bezaleel Sexton, an insolvent debtor, assigned for the benefit of his creditors. The appellant assigned as the reason of appeal that William Barnes, Esq., the judge of said court of probate, by whom the decrees appealed from were made, was interested as a creditor in said estate, and so disqualified to act as such judge.

This was a petition in chancery, praying for the reformation of a contract; and an injunction against the prosecution of an action at law. The superior court, (Hartford county, December'term, 1856,) made a decree amending the contract and enjoining the respondent according to the prayer of the petition. The respondent then brought the record before this court by motion in error.

This was an appeal to the superior court from a decree of the probate court of the district of Manchester, approving a codicil to the will of Zebulon Bidwell. The appellants assigned as the reason of appeal, that the testator at the time of making the codicil was not of sound mind.

Assumpsit for money had and received. The defendants, who were private bankers in the city of Hartford, and engaged in the business of buying and selling notes, on the 1st day of August, 1855, sold to the plaintiff a note of the following description. “ Hartford, July 19, 1855. Sixty days after date I promise to pay to the order of George W. Gorton, three hundred and fifty dollars at the Charter Oak Bank.

This was an action on a bond, brought by the plaintiffs, a corporation located in the state of New York, against Charles A. Colton, Edward Goodman, Chester Adams, L. R. Brown, and Oliver Parish. The bond was dated September 25th, 1849, and in the penal sum of $500. The said Colton was principal and the other defendants sureties.

<p>A railroad company required by its charter to put any highway altered by them in locating their road in as good repair as before the alteration, and to the acceptance of a committee to be appointed by a judge of the superior court for the purpose, having made such an alteration of a highway in the town of B. and claiming to have put the same in sufficient repair, though they had not done so in fact, the selectmen of the town agreed with them that in consideration of $100 paid to them for the town, they as selectmen would discharge the company from all liability to the town for the alteration of the highway and from all future liability to maintain it. The money was received by the selectmen, who paid it into the treasury of the town, and at the next annual meeting of the town, in making their general report, stated the fact of the receipt of the money and the arrangement made with the company with regard to the highway, to which no objection was made by any person present. Afterward the town repudiated the agreement of the selectmen and demanded of the company that they should repair the road, which they refusing to do, the town brought a bill in chancery to compel them to do it, offering to refund the $100, or to allow it toward expense incurred by them in the reparation of the road, which had exceeded that sum. Held, 1st, that the selectmen by virtue of their office had power to bind the town by the contract in question ; and 2d, that if they had not, their act had been fully ratified by the town.</p>

<p>A former verdict for the defendants in this case having been set aside (23 Conn., 401,) it was tried again to the jury at the term of the superior court holden in the county of Hartford, in September, 1856, when a verdict was rendered for the plaintiffs, and the defendants moved for a new trial for error in the charge of the judge. The charge and all the facts of importance appear sufficiently in the opinion of the court.</p>

<p>The act of 1855, which provides that “all banks and banking associations organized under the act of 1852, authorizing the business of banking in this state, shall, in addition to the number of shares authorized, be opened to subscription from the funds of this state, the school fund, or from the funds of any college, ecclesiastical society, school corporation, or association for charitable purposes, &c., provided that such additional subscriptions shall in no case exceed ten per cent, of the amount of the capital of any bank or banking association actually paid in,” applies only to the banks organized under the act of 1852, and not to the chartered banks.</p>

<p>A testator bequeathed the use of certain bank stock to his widow for life, and after her death to M. his daughter, and provided that B. should be trustee of all the property given to M. until she should become twenty-six years of age. B. was also made executor of the will, but declining to accept the office, was appointed by the court of probate administrator with the will annexed. After M. had reached the age of twenty-six, she, with her husband and the widow, brought a petition in chancery against B. praying that he be compelled to pay over to the widow sundry dividends on the stock received and retained by him, and transfer the stock to the petitioners or some of them, on proper bond being given for the security of the life interest of the widow, he having refused to pay over the dividends or transfer the stock, claiming to retain the former for certain expenses incurred in managing the estate. Held, that, besides the misjoinder of the petitioners whose interest was not common, 1. there was no equity in the claim of M., she having no right to the stock until her mother’s death, and therefore not being affected by its detention by B.; and the expiration of the trust as to her, iu consequence of her reaching the specified age, in no manner affecting the trust devolving on B. as administrator in favor of the widow during her life: 2. nor any equity in the claim of the widow, her right to the dividends retained, if a present right as alleged, being a legal one, to be enforced by an action at law; and the transfer of the stock prayed for, requiring the appointment of a new trustee, since it could not properly be made to all the petitioners, they having no common interest, nor to any one of them alone, as all had interests to he protected, and no reason being shown why a new trustee should he appointed.</p>

Assumpsit, brought by the plaintiff as executrix of Henry Douglas. The declaration contained two special counts and the common counts for work and labor, and money paid.

<p>F. & G. copartners in the business of making railroad cars, owning $440,000 of real and personal property used by them in their business, and being indebted to the amount of $205,000, for the purpose of making their property available for the payment of their debts proposed to their creditors that they (F. & G-.) should form a joint stock corporation to take their business with a capital of $200,000, of which they should subscribe the entire amount, and transfer to the corporation their whole property, of which $200,000 should constitute the capital, and the remainder a pledge for the payment of their debts, and the avails thereof be applied by the corporation for that purpose— that they would sell to each creditor an amount of the stock of the corporation equal to one-half his claim, taking the negotiable notes of such creditor therefor, which stock so transferred should be made preferred stock—and that the remainder of the stock should be transferred to a trustee as a further security for the payment of their debts ; to which proposition the creditors (except a few) acceded, stipulating with each other that the earnings and avails of the property should be appropriated to the payment of their several claims against F. & G. in the order of their future maturity, with a provision that the agreement accepting the proposition should not take effect till signed by all the creditors of F. & G. whose claims exceeded $200. The agreement was not in fact signed by all the creditors who held claims of that amount, but this fact was well known to F. & G. and to the corporation at the time of their action on the subject. F. & G. proceded to form a corporation as proposed, associating with themselves for the purpose a nominal member, and transferred all their property to the corporation, in accordance with their agreement. The corporation at its first meeting passed the votes necessary to carryout the arrangement agreed on, that with regard to thepaymentof the debts of F. & G. being as follows: “ that the directors are hereby authorized to apply the earnings and avails of the property of the corporation toward the payment of the liabilities of F. & G. in accordance with their contract with their creditors, entered on the records of this corporation.” The directors thereupon held a meeting and voted to accept the property of F. & G., the same to be applied in part to the payment of the subscription of F. & G. to the stock of the corporation and the surplus to the extinguishment of the liabilities of F. & G. in accordance with the contract before mentioned. All the property thus conveyed to the corporation was necessary for its business. A certificate was lodged by the directors with the secretary of the state and the clerk of the town, in accordance with the statute, stating among other things the capital of the corporation to be “ §200,000, the entire amount of which has been paid in.” The corporation commenced business, and paid the debts of F. & G. as they matured for about two months, the amount thus paid being about §50,000, when it ceased paying them, and soon after made an assignment for the benefit of its creditors, having contracted debts of its own to the amount of §19,000. The appellees were creditors of F. & G. who had subscribed the agreement, and had not been paid by the corporation. The commissioners on the assigned estate allowed their claim, and the trustee appealed from their report to the superior court. Held in advising judgment for the appellees,</p> <p>1. That the corporation had power to assume, on a valid consideration, the debts of F. & G.</p> <p>2. That there was here a valid consideration in the property received.</p> <p>3. That the corporation by its votes and the acceptance of the property, did in fact assume the debts in question, so as to become itself the debtor of the creditors of F. & G. who signed the agreement.</p> <p>4. That the corporation having accepted and retained the property under the agreement, could not now take advantage, against the creditors who signed the agreement, of the fact that it was not signed by all.</p> <p>5. That the fact that the direct creditors’ of the corporation might have been deceived by the certificate and have given credit to the corporation in ignorance of its liability to the creditors of F. & G, constituted no reason why the claims of the latter should not be allowed against the corporation, as the question of equities between different classes of creditors was not involved here, and should be made if anywhere before the court of probate.</p>

<p>In a suit for the breach of a contract containing mutual and dependent promises of the plaintiff and defendant, the declaration, after setting out the acts to be concurrently done by the parties on a day named, alleged that the plaintiff was on that day ready and willing to perform all the acts to be by him performed, specifying them, but that although he had performed everything on his part to be performed, the defendant had wholly refused to perform. Held, that, without considering what effect was to be given to the general averment of performance, and regarding only the averment of readiness and willingness to perform, the declaration was not insufficient in not alleging an offer to perform, since the refusal of the defendant to perform superseded the necessity of anything more on the part of the plaintiff than readiness and willingness to perform, and the averment of such refusal rendered the averment of such offer unnecessary.</p> <p>The word “tender” as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only the readiness and willingness to perform in case of the concurrent performance of the other party, with the present ability to do so, and notice to the other party of such readiness.</p> <p>Where a case has been reserved by the superior court for the advice of this court, upon facts found by that court, and the parties heard on the questions of law arising on such facts, and judgment rendered by the court below in accordance with the advice given, this court will not, unless perhaps in very peculiar circumstances, again consider the questions of law arising on such facts, where the case is brought before them by proceedings in error.</p>

<p>A bond issued by a railroad company for the payment of $1,000 at a future day, acknowledged an indebtedness in that amount for money borrowed, to certain trustees named, payable to bearer, with semi-annual interest thereon payable at the office of the company on dejivery of certain interest warrants annexed. An interest warrant annexed s^s as follows : “ Interest warrant, for $30, being half yearly interest on bond No. 30, of the N. L., W. & P. ft. R. Co., payable on the 1st day of February, 1856. J. D. - Treasurer.” A holder of the bond and warrant having presented the latter when due at the time and place of payment, brought an action of debt on a general indebitatus count for the recovery of the interest represented by the warrant. Held,</p> <p>1. That the warrant did not itnport a promise, but was a mere acknowledgment of indebtedness for interest on the bond itself, and therefore could not be made the ground of an action.</p> <p>2. That if the plaintiff relied upon the bond itself, on which alone his right to the interest was founded, he should have declared specially upon it,</p> <p>3. That the omission to do so was not a mere defect of form, of which advantage could be taken only by special demurrer, but was a fatal variance, inasmuch as the declaration as it stood, imported only a parol promise.</p>

<p>To constitute a right of general average for goods jettisoned, there must concur, 1st. A common peril affecting vessel and cargo; 2d. A voluntary sacrifice of the part jettisoned, for the safety of the remainder; and 3d. The deliverance thereby of the remainder from the peril.</p> <p>Where goods on the deck of a propeller were on fire, causing imminent peril to vessel and cargo, and certain to be themselves consumed, and were thrown overboard, and the vessel and remainder of the cargo saved thereby; it was held, in dismissing a bill brought for contribution upon a general average of the loss : 1. That the loss could not be attributed to the jettison, as the goods were already of no value by reason of the certainty of their destruction by fire. 2. That for the same reason, they could not be regarded as voluntarily sacrificed. 3. Nor as selected for that purpose, (which is involved in the idea of a voluntary sacrifice) since their own condition made it necessary that they should at once be thrown overboard. 4. Nor as ejected so much to deliver the remainder from a common peril, as to remove the very cause of peril. 5. That the fire did not constitute a peril of the class intended by the commeiiial law ás a ground for general average.</p> <p>Whether, if the case were in other respects one for a general average, the owners of goods under deck would be liable to contribute, the goods jettisoned having been stowed on deck: qu.</p> <p>By the ancient rule, as well established, they would not, but whether modem usage has modified the rule: qu.</p>

<p>S. held ten shares of the stock of the M. C. Bank, the certificate thereof being as follows: “ S. is entitled to ten shares of the capital stock of the M. C. Bank, transferable at said bank only by him or his attorney on surrender of this certificate, subject nevertheless to his indebtedness and liability at the bank, according to the charter and by-laws of said bank.” Neither the charter nor the by-laws contained any provision with regard to such a lien, but the former authorized the stockholders to establish by-laws and regulations for the well-ordering of the concerns of the bank, and made the stock transferable according to rulés to be so prescribed. This form of certificate had been adopted by the directors soon after the organization of the bank, and used in all cases since, a period of about fifteen years, and S. accepted the one held by him with full knowledge of its provisions and of the usage of the bank on the subject. While holding the stock S. made a general assignment for the benefit of his creditors, such assignment vesting in the trustee an equitable title to the stock. At the time of the assignment S. was liable to the bank as an acceptor of the draft of C., which had been discounted by the bank for C., to a greater amount than the value of the stock. In discounting the draft, the officers of the bank relied in part on the stock of S. as security for the payment. After the assignment, the trustee, who at the time of the assignment had no actual knowledge of the provisions of the certificate, called at the bank with S. and requested that S. might be allowed to transfer the stock on the books of the bank to him as such trustee, but the bank refused to allow the transfer until the draft should be paid. In a suit brought by the trustee against the bank for such refusal,—it was held:</p> <p>1. That the provision in the certificate with regard to the lien was binding on S. by his acceptance of the certificate, such acceptance being equivalent to an agreement that the stock should be subject to the lien,</p> <p>2. That the trustee, equally with S., was estopped from denying the assent of S. to the terms of the certificate, and took the stock subject to the lien created by such assent.</p> <p>3. That by a fair construction of the language, the certificate was to be considered as meaning that the stock should be transferable according to the charter and by-laws of the bank, and not that the lien must be one provided for by the charter and by-laws; such a construction being grammatically consistent, while no reason existed why the lien should be restricted in the mode required by a different construction.</p> <p>4. That although banks are forbidden by statute to make any loan or discount on pledge of their own stock, yet that the statute must be considered as intending a case where the stock is directly and specifically pledged as security for the particular debt, and not where a mere general lien exists, especially where, as here, the discount is made in favor of a third party who has no interest in the stock subjected to the lien.</p> <p>And it seems that in a case falling within the direct prohibition of the statute, it is very questionable whether, as between the parties, the validity of the loan or pledge would be affected.</p>

<p>A defendant in ejectment can not set up an outstanding mortgage of the plaintiff to a stranger, either to show that the plaintiff has no legal title, or to show that his actual title is different from that alleged.</p> <p>A tract of land was demised for a term of years, “ together with the quarry or quarries thereon, and the privilege of getting out stone in the same; also the privilege of getting out stone in any part of said tract, and to use and occupy said land in any manner that the lessees may choose, and for all purposes necessary and convenient for carrying on the quarrying business.” The lease also provided that the lessees should have the use of a certain wharf for the purpose of hewing stones thereon, and of shipping them, and that the rent should be seven per cent, of the value of the stone quarried and sold. Held that the lessees were not restricted in the use of the demised premises to the quarrying oí stone.</p> <p>Held also, that there was no such ambiguity in the language of the lease as to render admissible evidence aliunde of an intent of the parties that the use should be so restricted, for the purpose of aiding the court in giving a construction to the lease.</p> <p>An owner in fee of a tract of land, which he had previously demised for a term of years by a lease duly executed and recorded, with the assent of the tenant resumed possession of a part of the demised premises and leased the same by parol to S. While S. was in possession thereof under such lease, the tenant for years, for a valuable consideration, conveyed all his interest to B,, who at the time had no knowledge of the parol lease to S. Held, that S. could not avail himself of such parol lease as a defense to an action of ejectment brought by B.</p>

<p>If the original holder of a policy of insurance has no interest in the insured property at the time when a loss covered by the policy occurs, no recovery can be had on such policy in his name for the benefit of a party to whom it has been assigned; the assignment of the policy vesting in the assignee only the rights of the original holder.</p> <p>Therefore where A. the original holder of a policy assigned it to B. as security for a debt, and afterward conveyed the insured property to 0.; and a loss covered by the terms of the policy subsequently occurred,—it was held, in an action brought in the name of A. for the benefit of B. against the insurer, on account of such loss, that the plaintiff could not recover.</p> <p>It was further held, that although B. took the assignment of the policy in good faith, supposing that he thereby obtained a security which A. could not subsequently impair, and had neglected in consequence to take other security at the time, which he might have taken ; and although the policy itself contained a provision for the assignment thereof with the written consent of the insurers, and the assignment in question had been made with such consent; and although the subsequent conveyance of the insured property from A. to 0. was fraudulent and void as against B. who was a creditor of A., a part of the same being personal property which had remained in the possession of A.; and although after the conveyance, B. levied an attachment upon the property as the property of A. to recover the same debt for the security of which the assignment had been made, which attachment was in force at the time of the loss; nevertheless, the conveyance from A. to C. being good as between the parties thereto, and having therefore divested A. of all interest in the insured property as between him and the insurer, the plaintiff could not recover.</p>

<p>The question whether the performance by one of the parties to a contract of particular stipulations therein, is a condition precedent to his right to demand performance by the other party, is to be determined by the intention of the parties as ascertained by the application of common sense rather than of technical rules to the construction of the contract itself in each particular case.</p> <p>"Where there is an entire, open, unrescinded, special contract, by which all compensation for services to be performed by a party is clearly made conditional upon his full performance, he can not recover either on the contract or in general assumpsit for any partial and incomplete performance ; but a case will be brought within this principle only by an intention of the parties expressed in the contract; and where such intention would seem contrary to the equity of the case, courts ought not to enforce it unless unequivocally expressed.</p> <p>Therefore where A. agreed with B. to transport a certain quantity of lumber to a certain place at a certain rate per thousand feet, and it was not in terms expressly agreed that the whole quantity should be so transported, although such was the understanding and expectation of both parties, and A. afterward did so transport a part thereof, but through the operation of causes which he could not by reasonable care control was prevented from transporting the residue,—it was held, that the transportation of the whole quantity was not a condition precedent to a right of recovery on the part of A., and that he was entitled to recover against B. for the service actually rendered.</p> <p>It seems that if A. had expressly agreed to transport the whole quantity, he might nevertheless be entitled to recover for his part performance, on the ground that the thing to be done by him was in its nature divisible.</p>

<p>The general constitutionality of the act of 1S54 for the suppression of intemperance, is too well settled to be again called in question.</p> <p>And the provision of the 27th section of that act, that no action shall be maintained in any court in this state for liquors sold in any other state with intent to enable any person to violate the act, is also constitutional.</p> <p>And that provision will be enforced by our courts, although the sale of such liquor may have been valid under the laws of the state where sold, and an action may be sustainable therefor in such state.</p> <p>And it seems, that if the statute contained no such express provision, our courts would, upon the principles of the common law, refuse to sustain such an action.</p>

<p>An administrator is liable only individually for debts contracted by him in the settlement of an estate.</p> <p>It is no part of the object of an administration bond to secure the payment of such debts.</p> <p>Probate fees stand on the same ground in this respect with any other debts contracted by an administrator.</p> <p>Under the statute (Rev. Stat., tit. 1, § 101,) which provides that where a suit is brought on a probate bond at the instance of a party interested, the declaration must set forth the particular interest of such party, and how he is injured by the breach of the bond, there can be no recovery of nominal damages-for any breach by which the party for whose benefit the suit is brought is not injured.</p>

<p>Under the 3rd section of the act with regard to nuisances, the power to remove encroachments on highways, conferred upon a committee appointed by the town for that purpose, can not be exercised by individual members of that committee, where it consists of a plurality of persons.</p> <p>An act of a public nature, which is to be performed by a committee, may, where merely ministerial, be performed by the members of the committee acting separately, and by a majority of the members.</p> <p>And it is kolden in this state, in a certain class of cases, that an act requiring the exercise of judgment may be so performed.</p> <p>But, as a general rule, where the act requires the exercise of judgment, the members of the committee must convene, or be notified to convene, and confer on the subject, and a majority thus convened will constitute a quorum and may perform the act; and according to some modern authorities, a majority of the quorum has the same power.</p>

Ejectment, tried on an issue closed to the court, (Superior Court, Litchfield County, November Term, 1856.) The plaintiffs, who were a private pecuniary corporation, claimed title under a mortgage deed from the defendant. To the admission of this deed in evidence the defendant objected, because one of the attesting witnesses, who was also the magistrate who took the acknowledgment of the same, was at the time of the execution a stockholder in the corporation.

Action for the breach of a covenant against incumbrances on land conveyed by the defendants to the plaintiff. The facts sufficiently appear in the opinion of the court.

<p>The defendants in a criminal prosecution having pleaded in bar a former conviction for the same offence before a justice of the peace, which the attorney for the state, in his replication alleged to have been fraudulently procured by the defendants as a means of escaping justice, and therefore void, the court charged the jury, that if the authorities who were concerned in such conviction got up the prosecution for the purpose of screening the defendants from merited punishment and to save them from the effect of a prosecution then pending against them in the superior courtj the proceedings were a fraud on public justice and therefore void. Held,—that this instruction was erroneous in not requiring a complicity of the defendants in the fraud, and that, in the absence of the procurement of such conviction by the defendants, the state could not, against them, set up the fraud of the public authorities, who were its own agents.</p> <p>The procurement of the prosecution by the defendants, would by our statute, render the conviction void. Whether it would have that effect at the common law: qu.</p> <p>For the purpose of proving that the conviction before the justice was fraudulently procured by the defendants for the purpose above stated, the attorney for tbe state offered in evidence the record of a prosecution before the same justice, on the same day, againát the same defendants, for an aggravated form of the same offense, and of an acquittal by the justice, with proof that the transaction was the same which was the ground of the other prosecution, that the attorney then retained for the defendants appeared before the justice in the name of the state and took charge of the prosecution, and that the trial took place immediately after the other. Held that the evidence was admissible.</p>

<p>Upon an application of a turnpike company to the county commissioners for a discontinuance of a part of their road, under the provisions of the acts of 1854 and 1855 providing for such an application, the commissioners made a report to the superior court, discontinuing such part of the turnpike, and stating as the ground of their decision, that the principal travel over the road, which had formerly been through-travel, had become diverted to various railroads since constructed within the state, so that the present travel was almost wholly local, and that over the portion of the road in question insufficient for its support, and such as ought to be provided for by ordinary highways, and that the entire road had become wholly unprofitable, although the entire tolls were sufficient for its support. On a remonstrance, by certain towns interested, against the acceptance of the report,—it was held,</p> <p>1. That the superior court had authority to judge of the sufficiency of the facts stated in the report as the grounds of the decision of the commissioners, the statute implying such authority in requiring the commissioners to report the grounds of their decision.</p> <p>2. That the facts presented by the report of the commissioners were sufficient.</p> <p>3. That the fact that the turnpike company received a benefit from the relinquishment of the more unprofitable part of the road, and the retention of the more profitable part, did not constitute a decisive reason why the former should not be discontinued.</p> <p>4. That the towns upon which the road thus discontinued as a turnpike was imposed as a public highway, could not reasonably complain, as they could procure its discontinuance if not required by public convenience, and if so required, it was their duty to provide the highway, and they were benefited in having it laid out and constructed without expense to themselves.</p> <p>5. That the imposition of this burden on the'towns, with the incidental benefit to the turnpike company, did not constitute a taking of property for public use without compensation within the prohibition of the constitution.</p>

<p>A. wlio was about to commence a suit at law, retained the respondent, who was a practising attorney, and conveyed to him by an absolute deed certain land, the principal property of the client and worth about §300, as security for his fees, for the expenses of the suit which the respondent agreed to advance, for a liability assumed by him in giving bond for costs, and'for a small sum of money lent, the respondent agreeing in writing to reconvéy on the satisfaction of A.’s obligation to him in the above respects. A. was an ignorant man and inexperienced in such business. The suit was brought and prosecuted by the respondent, he paying all expenses, and about three years after a judgment recovered, the amount of which was collected by the respondent but was insufficient by nearly §200 to satisfy his account. Immediately after the conveyance the respondent had taken possession of the land and had occupied it ever since, paying all taxes upon it. A.' soon after the conveyance, had repaid him the money loaned, and the respondent after the judgment had paid A. a small sum on account. About a year after the judgment, A. applied to the respondent for a settlement of the account between them, and the respondent offered to pay him §10 if he would give up the agreement to reeonvey. The §10 was taken by A„ but the agreement was not given up. The respondent however believed it to be a final settlement. A. soon after died, and the petitioner, who had acquired his title to the land, brought a petition to be allowed to redeem. Held, 1. That the original conveyance, whether regarded with reference to its object alone, or in connection with the written agreement to reconvey, or with reference to the relations of the parties as attorney and client, was to be considered as a mortgage; and 2. That the right to redeem was not extinguished by the acceptance of the §10 afterward paid by the respondent, in the absence of satisfactory prooi that A. understood it as a final settlement and in view of the relations of the parties.</p> <p>There are no transactions which courts of equity will scrutinize with more jealousy than dealings between attorneys and their clients, especially where the latter are persons of inferior capacity and inexperienced in business.</p>

<p>A declaration contained a count in trespass for the forcible ejection of the plaintiff by the defendants, a railroad company, from their cars, and a count in trespass on the case for the same injury by the negligence of the defendants as common carriers in conveying him as a passenger, the latter count containing an averment that it was for the same cause of action with the former. The latter count also contained an allegation that the defendants, at the same time, assumed for a certain hire to also carry safely his tool chest, but so negligently carried it that it became broken and greatly damaged. Held, on a motion in error from a judgment overruling a general demurrer to the declaration, that although the latter count was averred to be for the same cause of action with the former, yet as the injury to the chest was so set forth as to constitute an independent and substantial ground of recovery, both counts could not be for the same cause of action, and there was therefore a misjoinder of counts.</p>

Petition in equity. In 1811, Fanny Deming, a feme sole, then being the owner of thirty-six shares of the stock of the Hartford bank, married Richard Cowles.

<p>A court of equity will not interfere for the mere purpose of settling a disputed. boundary between adjoining proprietors.</p> <p>Nor to quiet the possession of a party whose equitable title has by adverse possession become a legal one, as such party has adequate remedy at law.</p>

<p>A subsequent incumbrancer will not be allowed, on a petition to redeem mortgaged premises, to show usury in the debt of a prior incumbrancer, unless the usury, and the particular facts and circumstances constituting it, are set forth in the petition.</p> <p>A party levying an execution upon an equity of redemption in real estate, is bound by the action of the appraisers as to the amount and validity of a prior incumbrance, and can not afterward, on a petition to redeem, show such incumbrance to be less than the valuation of the appraisers, or founded on an usurious contract.</p> <p>A mortgagee in possession is entitled to charge the premises for personal services in renting them and collecting rents, and for such sums as were necessarily expended to obtain a speedy possession of the property.</p>

<p>The location of a railroad upon a public highway is the imposition of a new servitude upon the land, in addition to and distinct from that to which it was originally subjected when taken for a highway, and the owner of the fee is entitled to compensation for the damage caused thereby.</p> <p>Under the general statute with regard to railroads, which provides that railroad companies shall pay all damages caused by laying out and making their roads, the incidental injury to land adjacent to that taken and belonging to the same proprietor, is to be considered in assessing damages.</p> <p>Whether damages are to he paid for such injury to adjacent land not belonging to the same proprietor; gu.</p>

<p>A testator gave to his widow a specific piece of land, and to his niece a legacy of $1,000 to be paid from the avails of a certain other piece, the remainder of his property to be applied to'tlie payment of his debts. The remainder proving insufficient, the estate charged with the legacy was told and the avails applied to the payment of the debts On a petition brought by the niece against the widow for a contribution, it was held that the devise to the widow was to be regarded as in lieu of dower, and that she was therefore not liable to contribuí.;.</p>

<p>A lessee of a store mortgaged the goods therein, and, with no visible change of possession, continued the sale of the goods in behalf of the mortgagee. By the terms of the lease, it was liable to forfeiture upon the neglect to pay the quarterly rent for thirty days after it was due, which neglect had occurred at the time of the mortgage. The lessor informed the mortgagee that he should look to him for the rent accruing after the date of the mortgage, upon which the mortgagee acknowledged himself in possession and promised to pay the rent so long as he remained so. Txi an action brought by the lessor against the mortgagee for the rent so accruing, it was held, 3. That there was a good consideration for the defendant’s promise. 2. That by it the relation of landlord and tenant was created between the parties. 3. That as the tenant of the plaintiff the defendant could not dispute his title, and therefore could not-set up the then subsisting lease to the former lessee.</p> <p>It is the duty of auditors and committees in chancery to report facts, and not the mere evidence of facts; it being the province of the court only to apply the law to the facts found, not to draw inferences of fact from evidence.</p>

<p>Where the charter of a hank provided that charitable societies might, from time to time, subscribe for stock of the bank in addition to its fixed capital, which stock was not to be transferable and might be withdrawn at par on certain notice, and the bank had declared a dividend from its surplus earnings; it was held that the societies subscribing were share holders, with all the rights of individual shareholders, and entitled to receive their proportion of the dividend, although the fund from which it was declared was earned in great part before they became stockholders.</p> <p>The'profits and surplus funds of a bank, whenever they may have accrued, are, until separated from the capital by the declaring of a dividend, a part of the stock itself, and will pass under that name in a transfer or bequest.</p>

<p>The judgment of a court having jurisdiction is conclusive upon every material fact in issue, and can not be collaterally impeached.</p> <p>Such jurisdiction must embrace the parties, the subject matter and^tlie process.</p> <p>Every presumption is in favor of such jurisdiction, in the case of judgments of eourts of general and common law jurisdiction, but there is no such presumption in the case of judgments of courts of inferior and statutory jurisdiction.</p> <p>And a party relying upon a judgment of a court of the latter class, must aver and prove the existence of the facts essential to its jurisdiction.</p> <p>The true principle of law is, that where a statute confers on such a tribunal a special power to be exercised under particular circumstances and in a particular manner, it is indispensable to the valid exercise of the power that such circumstances exist at the time and that the court proceed in the exact manner prescribed. •</p> <p>And where the record of such court finds the existence of such circumstances and that such manner of proceeding was adopted, such finding is only prima facie proof of such facts, and they may be disproved by parol evidence.</p> <p>Under the statute (Rev. Stat., chap. 25, tit. 1,) relative to the appointment of conservators by courts of probate, it is essential that the person over whom the conservator is to be appointed, shall have an actual residence in the probate district, and that the notice required by statute be served on him personally or left at such place of actual abode. A mere domicil in the district is insufficient.</p> <p>Where therefore a court of probate proceeded to appoint a conservator over a person whose domicil was within the district and notice was there left, but whose actual residence was, at the time of the service of the notice and of the appointment, in the state of New York, and no personal notice had been given him,—it was held, that the action of the court of probate was void, and that these facts could be shown by parol evidence.</p> <p>And a party may show the invalidity of such an appointment against the war4 himself, who is endeavoring to avail himself of the benefit of the appointment, as a defence to an action brought by such party.</p> <p>A court of probate is a court of specially limited jurisdiction in the appointment of conservators. Its power in relation to this subject is a particular one, conferred by statute ; and in the exercise of it, it must conform strictly to the provisions of the statute.</p>

<p>During the pendency, of a suit.in chancery brought by a corporation and sundry individuals, its stockholders, against A. and others, for the cancellation of certain subscriptions of the-individual petitioners to the stock of the corporation, and the repayment of certain moneys and the cancellation of certain notes obtained from the corporation, claimed to have been procured by the combined fraud of the respondents, A. died and his death was suggested on the record. Afterward the other respondents called out for the trial of the cause a committee to whom the case had previously been referred, and upon an application before the committee by the petitioners for a postponement to enable them to bring in the legal representatives of A., the respondents objected, and the trial proceeded ; the committee during the progress of the hearing, which was continued with occasional sessions for several months, being reappointed with the consent of the respondents and the trial proceeding without any objection on their part on account of the neglect of the petitioners to bring in the representatives of A. A. resided at the time of his death in the state of New Hampshire, where an administrator was immediately after appointed who also resided there, and he left no assets within this state. The committee having made their report, the respondents remonstrated against its acceptance on the ground that hy the death of A. the suit had abated and had not since been revived. Held, that the respondents by the course which they had taken, had waived the objection.</p> <p>■Whether, if the objection had not been waived, and had been made seasonably, the fact that A. resided and died without the jurisdiction of the court, that his administrator was appointed by a foreign court, and also resided without the jurisdiction, and that there were no assets within the jurisdiction of the court upon which an administrator could be appointed, would not have been a sufficient answer: gu.</p> <p>It was also held, that the bill ought not to be dismissed on the ground that, in consequence of the representatives of A. not being parties, it was impracticable to pass a decree that would do justice to all parties, inasmuch as the remaining respondents were responsible for the acts of A. with whom they had combined in the fraud, and could properly be ordered to pay to the petitioners the money fraudulently obtained and enjoined against negotiating the notes.</p> <p>And that it was no objection to such a decree that it did not appear what interest the remaining respondents had in such notes, as between themselves and the representatives of A. who not being parties were not heard, since the rights of such representatives would not be affected by the decree, and would be considered without prejudice whenever they should institute proceedings to enforce them.</p> <p>It was held also that the bill was not multifarious, in seeking a cancellation of the subscriptions to the stock, a matter of personal interest to the petitioners, and a cancellation of the notes of the corporation and the repayment of moneys drawn from it, a matter of interest to the corporation, since the whole was a connected scheme on the part of the respondents for defrauding the petitioners in the sale of a tract of land, by inducing them, with a view to its purchase, to take the stock and advance their money, the respondents immediately receiving the money from the corporation, together with its notes, as the price of the land.</p> <p>Also that it was no objection to decreeing a cancellation of the subscriptions to the stock of the corporation, that it might destroy the capital of the corporation and leave nothing for the payment of its bona-fide creditors, inasmuch as such creditors, not being parties, could not be affected by the decree.</p> <p>Also that it was no objection to such a decree, that the petition did not allege a fraud upon the corporation.</p> <p>The petitioners having tendered a reconveyance of the land to the respondents, which they refused to accept, and the land having since been sold on execution, on a judgment obtained upon one of the notes of the corporation, in a suit brought by an endorsee, it was held that it was not necessary that the petitioners should still be able to make the tender of the conveyance, but that the actual value of the land should be deducted from the sum which the respondents should be ordered to pay.</p> <p>Where on a trial before a committee in chancery an objection was taken gener- . ally to all the evidence of certain acts and declarations of A., and the evidence was admitted and a part of it was admissible,—it was held, that the ruling was not erroneous because a part of the evidence was inadmissible, that part not having been designated in the objection.</p> <p>Where evidence of questionable admissibility had been received by the committee, and upon remonstrance against the acceptance of their report the court had found that the committee regarded the evidence as unimportant and that the finding would have been the same without it,—it was held, that while it is not always safe to rely on such a conclusion, especially where the evidence is at all calculated to influence the minds of .tbetriers, yet, if it is ever proper to do so, it is where the justice of a cause is resisted by a long series of merely technical objections.</p> <p>The petitioners claimed that the respondents had combined to defraud them in the sale of a tract of land in Virginia as containing gold when it contained none, and that B., one of the respondents, at different times when the petitioners were about to examine the tract, had mingled gold dust with the soil in particular places, and then caused them to examine the soil in those places and find the gold thus placed there. As a part of the evidence going to establish this fact, they offered an account book kept at a neighboring mine, containing entries of sales of gold dust to B. just before the times when they made the examinations, for the purpose of showing that B. had gold dust in his possession at those times. The book was regularly kept and the clerk who made the entries was dead. Held, that as a part of the chain of evidence going to establish the fact in question, it was proper for the petitioners to show that B. had gold dust in his possession at the times in question, that evidence of the sales to him at the neighboring mine was pertinent to prove this fact, and that the entries in the book were admissible in proof of the sales.</p> <p>Held also, that the declarations of such clerk, made a long time after the entries were made, were not admissible for the purpose of impeaching the correctness of the entries.</p> <p>Upon a hearing before a committee in chancery, the respondents gave notice that they should request a postponement at the close of the session for the purpose of procuring further testimony, and at the suggestion of the committee handed in a list of the witnesses whom they proposed to call at the adjourned hearing. The committee decided to hear at once all the testimony then ready and at the adjourned session to hear no witnesses on the part of the respondents, unless for special cause, except those named in the list. The respondents acquiesced in this ruling and proceeded with the trial. At the adjourned session the respondents offered the depositions of three witnesses not named in the list and the committee refused to hear them. Held, in overruling a remonstrance against the acceptance of their report, that the committee had power to adopt the rule in question, both as a reasonable condition in granting the postponement requested, and as a reasonable rule for the expediting of the business before them.</p> <p>Questions of fact decided by a committee in chancery will not be reviewed by the court upon a remonstrance detailing the whole evidence.</p> <p>And the finding that a tender of a conveyance of land has been made, is a finding of fact, although involving the question as to what in law constitutes a tender.</p> <p>And the finding of facts by a committee can not be impeached, upon a remonstrance, by showing that the evidence on which it was made was procured by bribery and corruption; the remedy in such case being by an application to the committee for a further hearing, or to the court for a new trial.</p>

<p>A prior mortgagee acquires no right by a foreclosure of the mortgagor to redeem. the property from a subsequent incumbrancer.</p> <p>A subsequent mortgagee receives by his mortgage a transfer of the mortgagor’s equity of redemption, and acquires thereby a distinct and independent right of redemption which can not be affected by a proceeding to which he is not a party.</p> <p>A foreclosure by a prior mortgagee of the mortgagor’s interest alone, does not invest the party foreclosing with all the rights of the mortgagor, nor pass the title to the land; it merely extinguishes the mortgagor’s personal right of redemption, and the mortgagor may, after such foreclosure, redeem a subsequent mortgagee and avail himself of such mortgagee’s equity of redemption.</p> <p>The rules of equity with regard to mortgages are applicable to the liens of me» chanics upon land and buildings under our statute.</p>

<p>An officer who had undertaken to attach real estate on mesne process, made return that he had attached a certain piece of land belonging to the defendant, and had left with the town clerk a true and attested copy of the writ and of his endorsement thereon. He had in fact left with the town clerk a copy of the writ, with an endorsement thereon that he had attached a different piece of land from the one described in his return. Both pieces belonged to the defendant, and either would have been sufficient to satisfy the claim. The error was not discovered until the plaintiff in the suit had obtained judgment and taken out execution, at which time more than two years had elapsed, both from the date of the levy and from that of the return. The debtor in the mean time had failed, and no property could be found on which to levy the execution. In an action on the case for the default, to which the statute of limitations was pleaded, it was held, that the cause of action did not accrue, either at the time of the service of the writ or at that of the false return, and not until, by the failure to obtain satisfaction of the execution, the plaintiff had sustained actual damage. [Ellsworth, J., dissenting.]</p> <p>The injurious consequences in such a case are not mere aggravating circumstances enhancing a legal injury already inflicted, nor the mere development of such injury, but an indispensable element of the injury itself.</p> <p>When an injury, however slight, is complete as a legal injury at the time of the act, the period of limitation at once commences; but when the act is not egally injurious until certain consequences occur, the period takes date from the consequential injury.</p> <p>A neglect to serve mesne process, or a false return of such, process, is not in itself a legal injury.</p> <p>The distinction sometimes made on this subject between the case of mesne process and that of final process, is one rather of practice than of principle, actual damage being essential to a right of action in both cases, and the only difference being that in the latter case damage is presumed, but may be disproved, while in the former case It must be proved.</p> <p>A distinction is to be made, in relation to the right of action resulting, between breaches of public duty, and breaches of private duty or of contract. In the case of a public duty there is no direct relation between the public officer and the party in whose behalf the duty is to be performed, and the breach becomes a ground of action in favor of the individual only when damage results to him in consequence.</p> <p>Ignorance of a right will not suspend the operation of the statute of limitations against such right.</p> <p>A party cannot be debarred by an equitable estoppel from availing himself in a court of law of the statute of limitations.</p>

<p>If the widow of an intestate dies before a distribution of tbe personal estate of lier deceased liusband has been made, her personal representatives will be entitled to the distributive share of such estate which she would have been entitled to receive if living at the time of the distribution.</p>

<p>Where the title to land was in issue, and the plaintiffs claimed title under an ancient grant from a committee of the original proprietors of the town, and also by adverse possession, it was held, that in connexion with proof of the loss of the proprietors’ record-books, the plaintiffs might prove, by the testimony of a witness who had seen the books, that one of them contained a record purporting to be the record of such a grant, and might also prove in the same way the contents of the record,—not only for the purpose of proving a valid grant, hut also for the purpose of proving that the entry of the plaintiffs was made under a claim of title; and also for the purpose of proving, by the description of the premises contained in the record, the extent and boundaries of the land claimed by the plaintiffs at the time of their entry, and the nature and extent of their continued possession.</p> <p>"Where the plaintiffs in such a ease, being an ecclesiastical corporation, for the purpose of proving their continued possession of the land under a claim of right, and the extent of that claim, offered the testimony of a certain witness, that during the life-time of his father, who was a warden of the corporation, and prior to the suit, the witness heard his father, as such warden, warn persons digging turf upon the land to desist, charging them with trespassing; and that the witness heard his father while so doing state to those persons that the church claimed the whole of the land in dispute and had a grant of . the same from the ancient proprietors,—it was held that the evidence so offered was admissible.</p> <p>It was also held that the plaintiffs, in order to prove their title by adverse possession, might prove that on various occasions prior to the alleged trespass of the defendant-, the individual wardens, vestrymen and society’s committee of the corporation, having the management of its affairs, and acting or claiming to act as its officers and in its behalf, had exercised various acts of ownership over the premises in dispute, at the same time claiming the title thereto to he in the corporation.</p> <p>In such a case, the defendant having asked the court to charge the jury that the records of the corporation showed that they entered under a license from the original proprietors, and that, if the jury should find that fact, the subsequent occupation of the corporation must be taken to be in subordination to the title of the proprietors, and not as adverse thereto, until by some corporate act that title was renounced and an adverse occupation commenced; and that the acts of the officers of the corporation, though accompanied by an assertion of title in the corporation, unless such acts were expressly authorized or ratified by the corporation, were not legal evidence of such adverse holding ; and the court charged the jury that it was a question of fact for them upon all the evidence in the case whether the corporation had occupied under a license from the ancient proprietors and in subordination to their title, or whether they had occupied adversely and under a claim of title in themselves uninterruptedly for fifteen years:—it was held that such instruction was correct.</p> <p>In an"action of trespass, if the wrongful act is neither wanton nor malicious, the jury are not at liberty to give more than actual damages; and they have no right, in such a case, to take into consideration the expenses incurred by the plaintiff in the prosecution of his suit.</p> <p>The expenses of a suit in which redress is sought for an injury, are no part of the natural and proximate consequences of the injury, and can not be made the subject of averment in the declaration or of proof on the trial.</p> <p>A jury is allowed to take them into consideration in cases of wanton and malicious injury, only because the law furnishes no definite rule of damages in such’ a case, in consequence of which the jury is at liberty, in the exercise of its discretion, to consider such a known and actual incident of the injury, although not its natural consequence.</p> <p>But where the injury is not malicious or wanton, the law furnishes a definite rule of damages by which the jury must be governed;</p>

<p>The purpose of an ordinary deed of land is not to state the terms of the contract in pursuance of which the land is conveyed, but to pass the title; and notwithstanding the formal statement of consideration, and of the receipt thereof, contained in the deed, the grantor is at liberty to prove by parol evidence the real contract in pursuance of which the deed was given. Therefore where it was agreed between A and B, that the latter, as the agent of A, should sell certain land of A and account to him for the avails of the sale; and A, in order to enable B the more readily to sell the land, conveyed it to him by a warranty deed, absolute in form and eontaining the usual formal statements of consideration and of receipt thereof by. the grantor, together • ~ with the usual covenants, and B in fact paid no consideration for the land but received the conveyance as the agent of A ; and B afterwards sold the land and received the avails thereof, but neglected to account therefor to A; in an action brought afterwards by A against B to recover the avails of the sale, it was held.that A was not prevented, by the effect of the deed or by the statute of frauds, from proving the foregoing facts by parol evidence, and that upon such proof of them he was entitled to recover.</p> <p>An agent who has undertaken to make a sale of property for his principal and has actually received the avails of the sale, is estopped, in an action brought against him by the principal to recover the avails of the sale, from denying the validity of the title held by the principal at the time of the sale. Commissioners on insolvent estates, in allowing or rejecting claims, act not only as courts of law but also as courts of equity.</p>

<p>The rule of construction, whereby the operation of a statute may sometimes be judicially extended beyond its words, does not apply, even in the case of a remedial statute, where the words are too explicit to admit of the belief that such an extension of its operation was intended by the legislature.</p> <p>The act of 1855, validating all " deeds and other conveyances of real estate in this state, which have been executed and acknowledged in any other state or territory in conformity with the laws of such state or territory relative to the conveyance of lands therein situated,” does not validate a deed executed in New York, purporting to convey land in this state, and acknowledged in New York before a Connecticut commissioner, but defective, under our laws, by being attested by only one witness,—although a deed so attested, if acknowledged before a proper officer, would be sufficient to convey land situated, in New York; because a Connecticut commissioner has no power, under the laws of New York, to take acknowledgments of deeds of land situated in that state3 and consequently any deed there acknowledged before him, would not be acknowledgedt( in conformity with the laws” of New York “ relative to the conveyance of lands therein situated.</p> <p>In order to affect a corporation by the knowledge of a fact on the part of one of its directors, it is necessary that he should have such knowledge while acting officially in the business of the corporation, unless he is acting at the time under some special authority conferred on him other than what he would possess as merely one of its directors.</p> <p>Therefore where a defective deed had been recorded, purporting to convey certain land, and one of the directors of a corporation, not acting as agent of the corporation, and having no management of its business otherwise than as a director, went to the town records for the purpose of ascertaining the situation of the land, and there saw the record of the deed, but did not inform the corporation or any of its agents thereof,—it was held that the corporation was not, by reason of these facts, chargeable with any knowledge of the deed»</p>

<p>Where A, an heir of G, knew of the existence and contents of an alleged will of C prior to the probate of it, and gave the executor to understand that he contemplated no opposition to the will, and advised him. to prove and execute the will,—and if he had received legal notice to be present at the time of the prohate of the will, would not have attended to resist the probate,— and immediately after the decree approving the will was passed, knew the fact and might have appealed to the next term of the superior court,—and afterwards presented a claim to the commissioners on the estate,—and first conceived the intention of appealing from the probate of the will, on the dis-allowance of a part of his claim by the commissioners,—but was not notified to be present at the time of the probate of the will and was not in fact present,— it was held, oil an appeal taken by A within eighteen months after the probate of the will, but not to the next superior court thereafter, that nothing equivalent either to legal notice to be present at the probate of the will or to a waiver of notice, could be inferred, and that it was not necessary that his appeal should have been taken to the next superior court, as in the case of parties present or having legal notice to be present.</p>

<p>The rule of damages in an action of trover is, the value of the property at the time of the conversion, with interest. The jury are not at liberty to give additional damages in consideration of the plaintiff’s trouble and expenses incurred in the prosecution of his suit.</p>

<p>Although an agreement by a creditor to accept payment of a part of his debt in satisfaction of the whole, together with* payment of such part by the debtor, does not, generally speaking, constitute an accord and satisfaction, yet this rule of law contemplates a part payment that is strictly a mere part performance of the original obligation, and which in consequence confers no new benefit on the creditor, and imposes no new burden on the debtor. But where by a mode or time of part payment variant from that provided for in the contract, such a new benefit is or may be conferred or burden imposed, a new consideration arises out of the transaction and gives validity to the agreement of the creditor. ■</p> <p>Therefore, where A owed B $40,000, and it was agreed between them that A should deliver to B, in full satisfaction of the debt, two drafts, amounting to $1600, together with a certain stock of cloths, at fair market prices, and should manufacture and deliver to B, cassimeres sufficient, at fair market prices, to amount, with the cloths and drafts, to the sum of $26,000, and A performed his agreement and B accepted such performance in satisfaction of</p> <p>, the whole debt,—it was held, in a suit brought afterward by B against A upon the original debt, that the transaction constituted a good accord and satisfaction.</p>

<p>The facts of this case will be sufficiently understood from the opinion of the court. ■</p>

<p>A new trial will never be granted on the ground that the court omitted to give a charge not asked for upon the trial, provided that the instructions actually-given were correct, and adapted to the issue, and sufficient for the guidance of the jury in the case before them.</p> <p>When parties, in making a contract, expressly stipulate that the non-performance of it shall be excused upon just such terms as the law, in the absence of such a stipulation, would prescribe, the stipulation, although texpress, is' not a condition which qualifies the contract, or in any way .affects its import, and the plaintiff need not count upon it in his declaratiqn, or prove it upon the trial.</p> <p>A new trial for a verdict against evidence will be granted only when manifest injustice has been done by the verdict, and when the wrong is so plain and palpable as to exclude all reasonable doubt of its existence, and to clearly denote that some mistake has been made by the jury in the application of legal principles, or to justify the suspicion of corruption, prejudice or partiality in the jury.</p> <p>Marriage contracts are not unfrequently or improperly inferred by juries, as much from the conduct of the parties towards each other as from any direct evidence of express stipulations between them; and, in the absence of direct evidence, contracting parties are always presumed to intend what their conduct fairly indicates.</p> <p>In an action for breach of marriage promise, the jury is peculiarly the appropriate tribunal for ascertaining the amount of damages to be assessed; and in such a case a new trial will not- be granted for excessive damages unless -the damages are so great as to make it a case of. indubitable wrong, so clear and striking as to indicate the influence of prejudice, undue sympathy, or corruption on tlm part of the jury.</p>

<p>The statute (Rev. Stat. Tit. 3, See. 30,) which empowers towns to enact bylaws for the restraining of cattle from going at large, although it does not mention impounding as a mode by which cattle may be so restrained, yet authorizes towns in such by-laws to provide for the impounding of cattle.</p> <p>The various statutes providing for the establishment and maintenance of pounds, the confinement of animals therein, the disposition to be made of such animals, and the means of redress to be exercised by persons whose animals are unlawfully impounded, Were intended to apply to the impounding of animals under the authority of such by-laws, as well as to such impounding under the authority of any of our general statutes.</p> <p>By-laws of towns being usually more inartificially expressed than other laws, are especially entitled to a reasonable construction.</p> <p>Although the statute makes it the duty of selectmen to “ erect and maintain99 pounds, they may fully discharge their duty by purchasing or hiring to be used exclusively as pounds, suitable enclosures already erected.</p> <p>.An act of selectmen which they alone have a right to perform, does not, by reason of the fact that it is performed in accordance with a request of the town expressed by its vote, become the act of the town, or any less the sole act of the selectmen.</p>

<p>A paper purporting to be a copy of a record of a court of probate, is not admissible in evidence as such a copy, unless certified by the clerk of the court of probate, or, is. case of his absence or inability, examined and sworn to by a credible Witness,—even though it be certified as a true copy by the judge of probate in his official capacity.</p> <p>An appointment to the office of clerk of a court of probate continues the appointee in office until he resigns, or is removed, or superseded by the appointment of another person to the office. He is the clerk of the court, and not of the particular judge by whom he is appointed; and, upon the accession of a new judge, there need not be either a re-appointment of the clerk or a new administration to him of his official oath.</p> <p>Therefore, where it appeared that A had been once appointed clerk of a court of probate, that he Was still living within the same probate district in which he had so been appointed, that he had never formally resigned and had never been formally removed from office and that no person had been appointed in his place,—it was held, that although for the period of six years last past, he had never acted as clerk or claimed to be such, he was still clerk of that court.</p> <p>By “ credible witnesses ” mentioned in the statute, authorized in certain cases to verify copies of record, are intended witnesses giving testimony under the sanction of the witness’ oath, and subject to cross-examination in regard to the existence of the record and the accuracy of the copy.</p> <p>An omission, on the part of the trustee of an estate assigned for the benefit of creditors, to cause to be inventoried and appraised portions of the estate which the law requires to be inventoried and appraised, does not render the assignment in contemplation of law fraudulent and void. Such omission is an indication of fraud, but not a conclusive one.</p> <p>If, after an insolvent debtor has made an assignment to a trustee under the insolvent act of 1853, the assignor retains possession of the assigned estate with the assent of the trustee, using it as his own, this fact raises a presumption that the assignment was colorable and fraudulent; but this presumption is not conclusive as matter of law, and may be repelled by proof that the trustee has complied with the requirements of the law, and that the acts of the assignor, while so retaining possession of the estate and using it, were done under the direction of the trustee, and for the purpose of carrying out the proper objects of the assignment.</p> <p>In actions sounding in tort, if it appear that the injury complained of was inflicted wantonly or maliciously, the jury are not limited, in assessing damages, to a mere compensation for the actual loss or injury, but may give exemplary or vindictive damages in view of the degree of malice or wantonness evinced by the defendant, and may take into consideration the plaintiff’s expenses in the prosecution of his suit^but when the injury does not appear to have been wanton or malicious, vindictive or exemplary damages ought not to be given, and the jury ought not to consider the expenses of the plaintiff in the prosecution of his suit.</p>

<p>The natural and proper use of a videlicet followed by words of special description, is to restrict and limit the meaning of words of general description preceding-it.</p> <p>Therefore where a complaint and warrant under the 12th section of the “ Act for the Suppression of Intemperance,” designated for seizure “certain intoxicating liquors, to wit, several casks of French brandy, containing twenty-five gallons, more or less ; several casks of gin, containing twenty-five gallons, more or less; and several casks of intoxicating wines, containing twenty-five gallons, more or less,”—it was held that an officer serving the warrant was not justified by it in seizing any “ intoxicating liquors” other than “ French brandy,” “ gin ” and “ intoxicating wines.”</p>

<p>It is a well settled principle that a person indebted to another on different accounts, may, in making a payment, determine absolutely to which account it shall be applied, by directing at the time as to such application.</p> <p>A defendant, by suffering a default, admits at most that something is due from him in that suit to the plaintiff, but does not thereby admit any particular amount to be so due.</p> <p>Therefore, where A had an account against B, and another against B and 0 jointly, and B paid him a certain sum to be applied upon the debt of B and C, but A applied it in fact upon the other debt, and afterwards, in a suit against B upon the former debt obtained judgment against him by default, and took his judgment for the actual amount of the former debt less the amount of said payment, and afterwards brought a suit against B and C upon the latter debt,—it was held that the judgment so obtained by default against B was not admissible in the latter suit as evidence against either B or C of a waiver on the part of either of them of his original right to have the payment applied upon the latter debt; and that, notwithstanding the manner in which the judgment had been taken, the payment must still be applied upon the latter debt.</p>

<p>By the common law of Connecticut, a blank indorsement of a note not negotiable, implies, prima facie, a contract on the part of the indorser that the note is due and payable according to its tenor, that the maker shall be of ability to pay it when it comes to maturity, and that it is collectible by the use of due diligence on the part of the holder:—and a blank indorsement of a negotiable note, for the benefit of the payee, is attended with the same legal incidents as a blank indorsement of a note not negotiable.</p> <p>In order to retain his hold upon such an indorser, the holder of the note must sue the maker by attachment as soon as the note is due, unless the maker is then insolvent.</p> <p>In a suit brought by the holder of a note against such an indorser, the mere fact that the maker of the note provided no funds to pay it at the time and place of payment, but suffered it to be protested for non-payment, does not furnish prima facie proof that the maker was insolvent when' the note fell due; and the mere fact, that the holder] presented it for payment, at the place of payment, when it fell due, and caused it to be protested for nonpayment, and caused notice thereof to be given to the indorser, does not furnish prima facie proof that the holder used due diligence to collect the note when due.</p>

<p>Assumpsit. The case can be sufficiently understood from the opinion of the court,</p>

In this suit the defendant was summoned to answer unto Richard E. Stanton, as trustee of the estate of Elias Sturdevant an assigning and insolvent debtor, under the provisions of the insolvent act of 1853, and the cause of action was stated as follows :—“ in a plea that to the plaintiff, as trustee, as aforesaid, the defendant render the sum of forty dollars, which to the plaintiff, as said trustee, he, the defendant, justly owes, (by book, to balance book accounts, as by…

<p>A will may be valid, notwithstanding the fact that it is executed jointly by two persons, if it undertakes to operate only as the will of the one who shall first die, and only upon the estate of that one.</p> <p>Therefore, where two sisters A and B, jointly executed an instrument of the following form:—“We, A and B, make this, our last will and testament, in manner and form as follows, viz., that in the event of the death of either of us, testators, the surviving sister shall have and hold for her own use and benefit, to dispose of in any manner that shall seem most expedient, all of the real and personal estate we shall be possessed of,”—which instrument was executed by them in due form as a will,—it was held that the instrument, construed according to the legal effect of its language, undertook to operate only as the will of the sister who should first die, and only upon her estate; and that, upon the death of the sister who first died, it was valid as her will.</p>

<p>An individual stockholder can not maintain an action at law against the directors of a corporation for mismanaging its affairs, or defrauding the corporation.</p> <p>Such directors are the agents of the corporation, and liable only to it, their ■principal, for their acts.</p> <p>An individual stockholder may maintain a petition in equity against the directors of a corporation for misconduct in office, where the corporation is unable to bring a suit at law, or where, through collusion or fraud, it neglects to seek redress, and an application lias been made to the directors for the use of the corporate name to bring suit, which has been refused.</p> <p>And such petition should proceed as well for all the stockholders as the petitioner, should make the directors and corporation parties, and should allege the neglect of the corporation to seek redress, and the demand and refusal of the use of the corporate name.</p>

<p>An agreement to pay a witness more than the fees prescribed by law for his attendance at court, will not in an ordinary case be sustained.</p> <p>Such an agreement may be valid, where the witness assumes a duty that the law would not impose upon him,—as where he agrees to remain at home at special inconvenience, that he may be found at the sitting of the court, or where he agrees to attend in person when his deposition might have been taken.</p> <p>The same rule applies to all cases where the law imposes a special duty and prescribes a particular compensation for its performance.</p>

<p>By the shipping articles of a whaling voyage, the master and crew were to receive a certain proportion of the proceeds of the voyage, first deducting all debts due from them, so soon after the return of the ship as the cargo could be sold and the voyage made up; the articles being made subject to the custom of the port with regard to such voyages, which was, for the owners, on the return of the ship, to ascertain the amount of the cargo, estimate its value, deduct a percentage for commission and expenses, and pay the officers and crew their shares immediately, if they chose to accept them; it being optional with the officers and crew to do so, or to wait until after the sale of the cargo and take their share of the proceeds of the sales. On the return of the ship the owners ascertained and estimated the cargo, and paid the officers and crew, excepting the master, according to the custom. The master after-wards demanded of the owners payment of his share at the market value, which was lower than the estimate made by them and upon which they had settled with the others. The owners refused to pay him, claiming that he was not entitled to payment until the cargo was sold. He then demanded his share of the cargo itself, which was also refused. Upon a petition in equity brought by the master against the owners for an account, and praying that they be .ordered to pay over to him his share in money, or deliver to him his proportion of the cargo,—it was held, 1st. That the terms of the contract, without reference to any custom, required the owners to dispose of the cargo with no unnecessary delay and in a reasonable time. 2nd. That in ordinary cireumstanoes a delay of two months must be regarded as unreasonable, especially where made merely with a view to a rise in the market. 3d. That the custom of the port was not introduced in evidence for the purpose of aiding in the construction of the contract, as one of its implied terms, and therefore inadmissible so far as it conflicted with the express terms of the contract, but was expressly referred to in, and made a part of the contract, and had therefore the same effect as any other express provision of the contract. 4th. That such custom was not repugnant to any provision of the contract, as it merely provided for a different mode, at the option of the petitioner, of giving him the benefit of his part of the cargo. 5th. That a demand upon the respondents was necessary before bringing suit. 6th. That the demand should properly have been for payment at the estimated value of the cargo, and not at its market value, but that the respondents, by refusing to make payment until the cargo was sold, had waived any defect in the form of the demand. 7th. That an objection, taken by the respondents after the hearing on the facts, that the petitioner had adequate remedy at law, would have been a valid one, if the case were one of which a court of equity could not, under any circumstances, have jurisdiction; but that, as it appeared by the terms of the contract, that a settlement of accounts might be necessary to an ascertainment whether and to what amount the respondents were in arrears to the petitioner, the objection could not be entertained at so late a stage of the proceedings.</p>

Trover. The plaintiff, to prove his title to the property in question, offered in evidence a conveyance thereof to him by one Otis, in payment of a debt then due, with proof of delivery of the property. The defendants, creditors of Otis, and who had attached the property as his, claimed that the conveyance was made by him for the purpose of defrauding his creditors and in pursuance of a fraudulent combination for that purpose between him and the plaintiff.

<p>The general rule of damages in an action of trover is the value of the property at the time of conversion, with interest.</p> <p>But the plaintiff is entitled to no more than his actual damage, and where the property is returned to him he can recover only for the detention.</p>

<p>Goods were sold to A, in the belief that B was a partner with him. In a suit afterwards brought by the vendor against A and B as partners for the price of the goods, it was held that evidence of an enquiry made by the vendor, at the time of the sale, at a mercantile agency, as to the credit of B, hut without B’s knowledge, was not admissible.</p> <p>The taking of the note of an individual partner for a partnership debt, where agreed to be taken as payment, extinguishes the partnership debt.</p> <p>And the question whether the note is taken in payment of the debt, or as collateral security only, is one of fact for the jury.</p> <p>A receipt in full, unless given under circumstances of mistake, surprise or fraud, is a discharge of all indebtedness.</p> <p>It scents that where a party has entered into a fraudulent arrangement with another, by which the latter is to purchase goods on credit and turn them or their proceeds over to him in payment of an indebtedness created for the purpose and in great part fictitious, and thus to defraud the parties of whom the goods should be purchased, such party, however liable for the fraud, would not be liable in assumpsit as a purchaser of the goods.</p>

<p>A testator by his will gave certain specific property to his wife, and directed his executors to pay her $700 annually so long as she remained unmarried. He then gave the residue of his estate in trust, two-fifths for the sole use of his son, his heirs and assigns forever, and three-fifths for the sole use of his three daughters respectively, their heirs and assigns forever; and directed the trustees, during the minority of the children, to expend such sums for their support and education as they should deem expedient, charging the sums expended for each on his or her share of the estate. The will then directed the trustees to pay to the son, on his attaining the age of twenty-one years, $5,000, and if they should judge best a further sum not exceeding $5,000,—on his attaining the age of twenty-three, such sum as they should deem best, not exceeding $10,000,—on his attaining the age of twenty-five, such sum as they should deem best, not exceeding$10,000 in any one year,—and so on in biennial payments, until his share should be fully paid. It then directed the trustees to pay to each of the daughters on her attaining the age of twenty-one years, $2,000, and every two years thereafter a further sum of $2,000 until the share of each should be fully paid, with a discretion in the trustees, after the first payment, to reduce the subsequent payments, provided they made no unnecessary delay in making ultimate payment of the share of each. The will then provided that if either of the children should die before receiving full payment of his or her share, leaving no lawful issue, the share of such child remaining in the hands of the trustees, should be paid in certain proportions to the survivors, their heirs or assigns forever;—but that if such decedent should leave lawful issue, such issue should be entitled in equal portions to the share of the parent remaining in the hands of the trustees,—such share to be held and disposed of by the trustees in such manner that such issue only and their legal representatives should have the benefit thereof. The testator then gave directions to the executors to sell various specified pieces of real estate, and add the proceeds of the sales to the general fund ; and that sundry notes and bills of exchange should be collected by them, and all the funds thence derived, as well as all other funds which should come into their hands, safely invested in interest paying stocks, till wanted to fulfill the provisions of the will. The testator at the time of his death, left the four chil* dren named in the will, all of whom were minors, and estate real and personal valued at about $147,000, of which the residue, which was the subject of the trust, was about $130,000. Upon an application of the trustees for the advice of the court as to the construction of the will, particularly with regard to the disposition to be made of the income of the estate,—it was held,</p> <p>1. That the “general fund,” provided for by the will, was to consist of the corpus of the estate and of all accessions thereto from the income; which fund was to be a single one, to the management and disposition of which one rule was to be applied, and from which, without discrimination, all the payments were to be made.</p> <p>2. That the biennial payments expressly provided for by the will, were all the payments that the trustees were authorized to make to the children; and that the latter were not entitled to payment of the income of the estate in addition thereto.</p> <p>3. That it was no valid objection to this view, that in the case of the daughters the income of the shares would exceed the biennial payments, and that thus they might never receive full payment of their shares, since the wifi had made express provision for the payment to their issue of such portions o** their shares as might remain unpaid at the times of their deaths.</p> <p>4. That although the clause of the will which gives the residue of the estate to the executors in trust for the children, their heirs and assigns forever, might, taken by itself, create a vested equitable estate in the children, yet that this clause was qualified by the, provisions which follow and which are to be taken in connection with it, which give to the trustees a discretionary control over the payments.</p> <p>5. That even if the shares of the children were to be regarded as vested equitable estates, yet it did not follow that they were entitled, as a matter of law, to payment of the income of the shares, since the bequests were not, as a result of that view, to be regarded as delivered from the controlling discretion of the trustees, and the question of the right of the children to the income must still depend on the intention of the testator, who had declared expressly what payments should be made to the children.</p>

<p>M in 1836 brought a suit to the county court, in the name of the school district in which he resided, against C. in which the school district was non-suited on the ground that M had no authority to bring the suit in its behalf, and judgment was rendered against the district for costs. In 1856 0 brought an action of debt on that judgment against the district, in which legal service was made on the defendants, but they not appearing, judgment was rendered on default. The execution issued on this judgment was levied on and satisfied out of the property of M within the district. M then brought an action of assumpsit against the district to recover the amount thus paid by him, to which the district made defence, on the ground that the liability of the district being caused by his own unauthorized act in the original institution of the suit against C,!he ought not equitably to recover. The superior court having rendered judgment for the district, on the motion of M for a new trial it was held,</p> <p>1. That the judgment of the county court for costs against the district in the original suit was void for want of jurisdiction, the district having been non-suited on the very ground that it was not before the court, and the court therefore having no jurisdiction over the district for the purpose of rendering judgment.</p> <p>2. That that judgment could not therefore be regarded as the legal consequence of the act of M in instituting the suit in the name of the district without authority.</p> <p>3. That if it had been such legal consequence, yet that M would be liable therefor only in an action on the case for damages, which had become barred by the statute of limitations before the institution of the present suit.</p> <p>4. That if it had been such legal consequence, and the claim not thus barred, yet that the judgment paid by M could not be regarded as his own debt, his liability to the district for damages being entirely dilferent from an equitable duty to pay that specific debt; and such specific duty on the part of M being essential to the validity of such a defence.</p> <p>To sustain such a defence the debt must have been so far the specific debt of M, that, if the district had paid it, it could have recovered the amount of M as money paid to his use.</p> <p>And such right of recovery by the district must have been of the particular debt, and not of unliquidated damages.</p> <p>And must have originated with the payment of the money by the district, and not have been a previously existing cause of action.</p>

<p>A having failed and being unable to pay his debts, made an arrangement with V, who was one of his principal creditors, under which he was to put a considerable amount of property belonging to him into the hands of V, who was to assume to be the owner of it, and with it purchase the debts, on the best terms that he should be able, for A’s benefit; and in consideration of the service, V was to be paid the whole amount of his claim. At this time certain other property of A had been attached by C on a large claim against him as endorser of sundry notes. The property was placed in the hands of Y, as proposed, and soon after an arrangement was made by V with C, under which C was to receive certain of the property in V’s hands in full of his claim, and to transfer to V the notes in suit, with the benefit of the attachment. C accordingly delivered the notes to V, already endorsed in blank by A, but without further endorsement, and executed a power of attorney authorizing y, in the name of 0, to prosecute the suit on the notes to final judgment for his own benefit and at his own cost, and describing the notes as sold and transferred to V. This arrangement was made with the concurrence of A, who agreed that the notes should be held by V as security for the payment of his claim and that the suit should proceed to judgment for his benefit. About three months afterwards A made an assignment for the benefit of his creditors under the insolvent laws of the state. Subsequently A, in concurrence with the assignee in insolvency, made defence to the suit, on the ground that, by the transfer of the notes, the legal title had passed from the plaintiff C, and the.suit therefore could be no longer maintained. Held, 1. That A was estopped by his agreement that the suit should be continued for the benefit of V, from setting up the want of legal title in the plaintiff. 2. That the indebtedness of A to V was a sufficient consideration for this agreement. 3. That the assignee in insolvency had no rights which he could assert in the case, the transfer of the notes having been made more than sixty days before the assignment and therefore not'invalidated by any of the provisions of the insolvent act, and the court not being able to infer from the facts that the arrangement was a fraud upon creditors*</p> <p>Whether the effect of the assignment of the notes, in the circumstances, was to transfer the Jegal title, or only an equitable one: Qit.</p>

<p>Private corporations may be subjected to compulsory insolvent proceedings, under the act of 1853, as much as natural persons.</p> <p>And a railroad corporation as much as any other corporation.</p> <p>The New York and Boston. Railroad Company, a.domestic corporation, became consolidated under the same name with a railroad corporation of the state of Rhode Island, and the corporation thus formed became again consolidated, under still the same name, with a railroad corporation of the state of Massachusetts; which consolidation was effected in each instance by proceedings authorized by the respective charters of the companies and confirmed by subsequent acts of the legislatures of this state and of Massachusetts. How far the original New York and Boston Railroad Company became thereby for all purposes merged in the consolidated corporations : Quere.</p> <p>If to be regarded as still subsisting, for the purpose of enabling its creditors to proceed against it in any mode, it should be regarded as liable to proceedings in insolvency at their instance.</p> <p>Whether our courts would have jurisdiction over such a consolidated corporation, for the purpose of insolvent proceedings : Quere.</p> <p>Proceedings in insolvency instituted against the New York and Boston Railroad Company, in which they were described as a corporation organized under the laws of.this state, and as a corporation created by the general assembly of this state, and located within this state, were held to be proceedings against the original New York and Boston Railroad Company, and not against the consolidated company, and were sustained as such against the objection of a party who had appealed from a decree in insolvency against the company, and had alleged in his appeal that he was interested as an attaching creditor of the original corporation and that his lien would he dissolved by the insolvent proceedings.</p> <p>The office which the original company had, having been in Middletown in this state, and it not appearing that that company had removed its office to any other place, it was held that the company must be regarded as still having an office in Middletown, so as to give the probate court of that district jurisdiction over its insolvent estate, although, upon the first consolidation, the original company had wholly ceased to transact business.</p> <p>As to the person to be regarded as the secretary of the company, for the purpose of serving process upon the company,—also as to the room to be regarded as the office of the company, for the same purpose,—also as to waiver of objection to insufficient service by appearance of the company; see infra. Under the insolvent act of 1853, it is not necessary that a regular service of the writ of attachment, on which the petition of a creditor is based, should be made on the debtor. It is only necessary that the debtor shall refuse to show to the officer, and the latter shall be unable to find, sufficient property of the debtor to secure the claim, and that the officer shall make return to that effect to the court of probate.</p> <p>A judge of probate is not disqualified by having been previously retained or consulted as counsel in matters appertaining to an estate in settlement before him, where no objection is made on that account at the time by any party interested; the statute limiting such disqualification to the case where such objection is made. (Acts 1855, chap. 25.)</p>

<p>The towns of T. and W. erected and maintained at their joint expense and as a joint duty, a bridge across a river which was their dividing line. The original structure, which was erected in 1807, was ISO feet in length, hut as the bridge was renewed from time to time, the open space was reduced by extending the embankments into the river, until, in 1854, the bridge was hut 65 fe¿4 in length. The embankments as thus extended were made and kept up and railings erected thereon at the joint expense of the towns. In 1854, in consequence of an insufficient railing, an injury was sustained on the embankment in T. and within the space occupied by the original structure. Held that the towns were jointly liable for the injury.</p> <p>And evidence that the selectmen of both towns had for so long a time built and maintained the whole 150 feet, whether embankment or bridge, as the joint duty and at the joint expense of the towns, was held tobe admissible to show their joint liability.</p> <p>The word “ bridge,” under our statute, properly includes in its meaning the structure itself and such abutments as are necessary to make the structure accessible and useful; but exactly what constitutes a bridge in a particular case is a question of fact rather than of law.</p> <p>A motion for a new trial is the proper remedy for error in admitting or rejecting testimony, or in the charge of the judge to the jury,—a motion in error for errors in the declaration, pleadings, and judgment.</p> <p>Upon a motion in error there must he a special assignment of the errors relied on, before the trial.</p>

Trespass, for an assault and battery, tried to the' jury on the general issue. The plaintiff and defendant were hack-drivers. A Mr. Prince, in making preparations for the funeral of a child, had employed one Potter to superintend the arrangements for the funeral and to procure the necessary carriages, and Potter, in pursuance of his directions, had engaged the defendant, among others, to attend with his hack.

Action on the_ca.se, tried to the jury upon the general issue. The plaintiff was a child less than three years old. The suit was brought to recover damages for injuries done to her upon the defendants’ railroad track, through the negligence of the defendants in the management of a train of cars, while she was playing along the track.

Scire facias against the defendant as the debtor and factor of Henry C. Rogers.

<p>The act of 1857, which provides a penalty for the disturbance of “ any district school, or any public, private or select school, while the same is in session,” embraces a “ singing school,” or school for instruction in sacred music.</p> <p>Whether such a school may be regarded as an “ assembly of people met for the promotion of a moral or benevolent object,” within the statute, (Rev. Stat., tit. 6, sec. 145,) which provides a penalty for the disturbance of such an assembly: quere.</p>