Volume 27 — Connecticut Reports

This was an action of assumpsit, brought by the plaintiffs, partners under the name of Bishop & Co., against Francis Vose and Charles L. Perkins of the city and state of New York, and John B. Kettell, of Boston, in the state of Massachusetts, late partners under the name of Vose, Perkins & Co. The writ was served as a summons on Vose, in the city of Bridgeport in this state, on the 24th day of January, 1857, and no other service was made in the case.

Action for a libel. The declaration charged the defendant with having published concerning her, in the Daily Standard, a newspaper of the city of Bridgeport, the following libellous matter: “ A girl by the name of Nancy Allen was yesterday morning arrested by officer John and sent back to New Haven for stealing a valuable shawl on Friday last from the family of James H. Jones of New Haven.” The declaration averred that the plaintiff was commonly known by the name of Nancy…

Assumpsit, on a guaranty,—tried to the jury on the general issue. The plaintiff, who resided in Greenwich in this state, had formerly been in partnership with one Joseph Haight, the son of the defendant, in New Rochelle in the state of New York, under the name of Redfield & Haight, and had afterward purchased the interest of Haight in the partnership and carried on the business alone.

Assumpsit. The defendant filed the following plea in abatement: Now the said William Jarvis comes into court and prays judgment of the plaintiff’s writ and declaration, and that the same may abate and be dismissed, because he says that the said supposed promises and undertakings in the said declaration mentioned, if any such were made, were made jointly with William B. Ogden, of Chicago, in the State of Illinois, Charles Butler, of the city, county and state of New York, and…

Action upon the statute for an injury from a defective bridge.

Action for a libel. The declaration alleged that the plaintiff, at the time of and previous to the publication, was a teacher of a district school in the town of Danbury; that the school visitors of the school society, when visiting the school kept by her, had made sundry inquiries with regard to the school, and that she, in reply to these inquiries, had made a statement to them, among other things, with regard to the fuel furnished for the school by the district; and that…

Bill in equity. The material facts of the case as reported by a committee, are as follows: On the 22nd of January, 1849, William L. Smith, one of the respondents, executed and delivered to the petitioners and William Newman, the other respondent, the following agreement: “ This is to certify that I have received from Silas Scofield, Jr., and George Scofield, $500, from Stephen B. Provost, J. D. Warren, William Newman, John R. Scofield, and James H. Hoyt, $100 each, making in…

Ejectment. On the trial of the case to the jury it was admitted that, on the 10th day of April, 1804, the town of Norwalk was owner in fee of the demanded premises, and on that day executed and delivered to Hannah Marshall an instrument intended as a deed of the land, but which was defective as a conveyance, under which she immediately entered into possession, claiming title in fee, and erected a dwelling-house thereon, and enclosed the premises, and occupied the same,…

Trespass qu. cl. fr. The defendant pleaded the general issue with notice of a claim of title. The plaintiff claimed title to the land in question by descent from their grandfather Stephen Hoyt, through his son and their father, Henry Hoyt, deceased. The question pertained wholly to the location of the dividing line between the land of the plaintiffs and that of the defendant.

Bill in equity. Edwin Botsford by his endorsement guarantied the payment of a note of Sylvester Taylor to the petitioner for $150, dated Nov. 16, 1848, and payable with interest Jan. 1, 1852. Botsford died in Dec., 1848, leaving estate sufficient for the payment of all his debts and liabilities. Taylor died in 1851 entirely insolvent. The respondents were the widow and two sons (the only children) of Botsford, one of whom was his administrator.

Action on the case for a nuisance, tried to the jury on the general issue. The plaintiffs, who were a corporation by the name of Brown and Brothers, owned and conducted an extensive manufacturing establishment in the town of Waterbury, having on their premises a large well which supplied water for a steam engine and for the use of their workmen.

Petition in chancery to compel the conveyance of real estate. The land in question was conveyed in 1823, by one Platt to Maria S. Dickinson, the wife of Isaac Dickinson. The consideration was in part paid from the proceeds of property belonging to her before marriage, it not appearing how the rest was paid.

Assumpsit for goods sold, brought against James E. Chalker and N. A. Cowdrey, as partners under the name of “ J. E. Chalker.” The goods were sold on the 29th of August and 2d of October, 1856. The defence was wholly made by Cowdrey, who denied the existence of the copartnership.

Action of debt on a probate bond given to the plaintiff as judge of probate by the defendants under the provisions of the will of John S. Moshier deceased.

Petition for a foreclosure. The respondent was the purchaser of the equity of redemption in the mortgaged premises from Smith Collins the original mortgagor. The mortgage was given to secure the following note; the mortgagor having received at the time a loan of that amount from the petitioners. “ New Haven, August 31,1853.

This was an application to the superior court for a mandamus, to compel the defendants, a railroad corporation, to construct a highway in the place of one taken for the site of their road. The road taken by the railroad company was known as the Hancock Brook road, and prior to 1853 was a public highway with well known termini, situated in part in the town of Waterbury and in part in Plymouth. It had been laid out by the county court in the year 1845.

This was a case submitted to the superior court, under the statute with regard- to amicable submissions, upon a statement of facts agreed upon, and reserved by that court for the advice of the supreme court of errors.

Action of assumpsit to recover fare for travel on the plaintiffs’ road. The material facts as found by an auditor, to whom the case was referred, are as follows.

Assumpsit against the defendant as indorser of the following note. $1,000. Hartford, July 22,1854, two months after date we promise to pay to the order of Samuel Woodruff at the F. & Mechanics’ Bank, one thousand dollars, value received. B. E. Mann & Co. [Endorsed,] Samuel Woodruff, Samuel G. Savage. The plaintiff, who brought the suit as an endorsee of the note, had averred in his declaration that the makers had promised to pay at the farmers Sf Mechanics' Bank.

The appellants claimed, and offered evidence to prove, that Lucy Kelsey, at the time when she executed the instrument, was not of sound mind, but that she then was and had long been insane; and especially they claimed, and offered evidence to prove, that she entertained an unreasonable aversion to her sisters, who were her heirs at law, and that this aversion was wholly the result of an insane delusion.

Assumpsit upon a note for one thousand dollars, dated October 27th, 1854. The material facts, as found by an auditor to whom the case was referred, were as follows.

Action on the case for damage to the plaintiffs, caused by an illegal alteration of an assessment list by the defendant, by which the amount of their tax was increased.

This was an amicable submission to the superior court, under the provisions of the statute on that subject, on the following agreed statement of facts. Elam Eaves, of Hartford, deposited with the People’s Savings Bank, of Hartford, on the first day of April, 1857, $118.29; and took a depositor’s bank book, in usual form, containing an entry of that amount to his credit.

Montague. In February, 1843, the court of probate granted an order of sale directing the administrator to sell all the property, real and personal, belonging to the estate. On the 20th of February, 1843, the administrator, by virtue of that order, sold; and on the 21st of February, 1843, conveyed to one Bailey, certain land belonging to the estate, and made return of the sale,—which return was accepted by the court of probate.

Appeal to the superior court from a probate decree ordering distribution of the funds of the insolvent estate of the Grove Car Works, in the hands of the trustee, among the creditors of the estate. The principal facts of this case are stated in the report of Waterman’s Appeal from Probate, 26 Conn., 97.

Action of covenant upon a receipt for property attached given to the plaintiff as marshall of the district, brought against the executrix of the receiptor. The case was tried to the court, upon the general issue, with notice of the special matters of defence hereinafter stated.

<p>Where, on a disclosure of a garnishee, cited in on the original process, the superior court made a finding of the facts, and reserved for the advice of this court the question whether, on the facts, the garnishee ought to be found indebted, this court refused to consider the case, because the finding as to such indebtedness would not be definitive, but merely prima facie evidence to be used on the trial of the scire facias afterwards to be brought.</p>

Special Assumpsit. The following facts were found by the superior court. In the spring of 1857, the plaintiff agreed with the town of Vernon to widen a portion of the highway by blasting a ledge of rocks, and to build a wall on the side of the highway, for which he was to receive a certain amount of money and the surplus stone from the ledge.

<p>The superior court has no power to try a criminal case without a jury, on the plea of not guilty, even by agreement of parties.</p> <p>Where, in such a case, the superior court, by agreement of the parties, found the facts and reserved the case for the advice of this court, this court refused to entertain it.</p>

Petition in equity. The West Winsted Savings Bank and Building Association was formed on the 19th of March, 1852, by the association of twenty-five persons, of whom the defendant was one, as a corporation, under the provisions of an act passed in the year 1850, entitled “ an act authorising the establishment of Savings Banks and Building Associations,” and was located at Winchester in Litchfield county.

Action brought on the statute concerning Highways and Bridges, (Bev. Stat., tit. 24, § 5,) for an injury sustained by reason of a defect in a bridge in the town of Warren, which it was the duty of the town to keep in repair.

Book debt. The case was referred to an auditor by whom the following facts were found. The plaintiff manufactured for the defendant, upon machinery owned by the defendant, about 800 sets of melodeon reeds and reed boards, at an agreed price per set, the defendant furnishing the materials.

<p>Bills in kquity. The suit of Wealthy M. Kimberly against James L. Fox and others, was brought to compel the respondent Fox to release a record title which the petitioner claimed that he had fraudulently acquired to certain real estate owned by her, and to remove the cloud upon her title created by his claim. The suit of Fox against her was brought after the facts in the first case had been found by the court, and alleged a settlement between the parties and an agreement to discontinue the case, and prayed for an injunction against the further prosecution of the suit.</p> <p>About the first day of April, 1855, one Mineas Ives, who was then the owner of the premises, leased them to the petitioner in the first suit, with an agreement that she might purchase them for the sum of $1,200. The petitioner thereupon entered into possession and had ever since remained in possession. Immediately after, she let the premises to Theron Richmond, one of the respondents, who went into possession under her, and on the 16th of May, 1855, she and Richmond entered into an agreement by which she was to sell the premises to him for $1,250, and to give him a good warrantee deed whenever he paid $125, he to make a note for the balance to be secured by a mortgage of the land. Richmond made payments from time to time toward the $125, and on the 19th of September, 1855, had paid the whole of that sum. On the 27th of September, 1855, the petitioner applied to Ives for a deed of the premises, under his agreement to convey to her, and he, at her suggestion, to save expense, executed a deed directly to Richmond, and delivered it to her, for her to deliver to Richmond on his giving her the note and mortgage as agreed, with the understanding that if he did not do so, she might return the deed to Ives, who would then make another deed in place of it directly to her. Immediately after she informed Richmond that she had procured the deed from Ives, and that it was made directly to him, and requested him to execute the note and mortgage, and refused to deliver him the deed until he had done so. She however, at his request, placed it in the hands of a third person to be read to him, and, while it was being read, he seized it by force and carried it away, and immediately had it recorded in the office of the town clerk. Shortly after, he tendered her a note and mortgage and had them read in her presence, but she declined to accept them until she could more fully understand their nature and effect. Learning soon after that they were correct, she informed him that she would accept them, but he then refused to deliver them to her. After repeatedly demanding them of him, fearing that he would convey the premises to some other person, she persuaded him to sign the following agreement, which was drawn by her.</p> <p>“ Goshen, October 9th, 1855. I, Theron Richmond, do agree and bind myself in the sum of $300, that if I sell my place in Goshen, formerly owned by Mineas Ives, that I will sell it to Selah Richmond or Wealthy M. Kimberly for what it has cost me, and pay each of them one hundred and fifty dollars each if I forfeit this agreement.</p> <p>Theron Richmond.”</p> <p>On the 10th of October, 1855, Richmond conveyed the premises for a valuable consideration to the respondent, James L. Fox, who had full knowledge of all the foregoing-facts. Fox the next day had his deed recorded.</p> <p>Richmond was insolvent at the time of the agreement to purchase the premises, and so remained down to the 10th of October, 1855, when he left the state and had not since returned. The petitioner had paid to Ives the full amount which by her agreement she was to pay for the land, and he made no claim to any interest in the premises.</p> <p>The foregoing facts were found by a committee to whom the suit of Kimberly against Fox and others was referred, and the report of the committee was accepted at a term of the superior court holden in September, 1856, and the case reserved, on the facts thus found, for the advice of the supreme court of errors at its next session in Litchfield County. On the 5th of March, 1857, and before the session of the latter court, the petitioner and Fox entered into an agreement with regard to the suit, which was reduced to writing and signed by the latter, but which she did not sign, though she agreed orally to its terms. This agreement was as follows:—</p> <p>“ Know all men by these presents that we, Wealthy M. Kimberly and James L. Fox, have made and do hereby make the following contract, viz.: Whereas, there is now pending in the superior court for the county of Litchfield a petition in chancery in favor of said Kimberly and against said Fox and others, concerning the house and lot situated in Goshen, formerly the property of Mineas Ives; and whereas said Kimberly claims that Theron Richmond fraudulently obtained a deed from her of said property, and thereupon deeded the same to said Fox, so that in law said Fox obtained no title thereto:—now therefore, to settle said case and confirm the title of said Fox to said property, we do hereby agree, the said Fox to pay the said Kimberly $250, and the said Kimberly upon such payment to give to said Fox a good and perfect title to said house and lot; and said suit in chancery is to be and shall be withdrawn, each of us to pay our own costs. Given under our hands and seals this 5th day of March, 1857. * [Seal.]</p> <p>' James L. Fox. [Seal.]”</p> <p>On the same day Fox paid her the sum of $250, and offered her the note of Theron Richmond for $1,150, which by the agreement she was to have, (although as drawn the agreement omitted so to state,) but she declined to accept the note, and afterwards refused to execute a quitclaim deed to Fox on his tendering one for her signature, and declined to withdraw her suit. Fox then brought a bill in equity, setting up the last mentioned facts, and praying that she be compelled to convey, and be enjoined against the further prosecution of her suit.</p> <p>On the foregoing facts both cases were reserved for the advice of this court.</p>

Disseizin. Motion for a new trial by the defendant. The facts of the case are sufficiently stated in the opinion of the court.

Information for seduction. The jury found the defendant guilty .and he moved for a new trial for error in the charge of the court and in arrest of judgment for the insufficiency of the information. The questions made in the case will be sufficiently understood from the opinion of.the court.

Action on the case for false warranty and fraud in the exchange of cattle, instituted originally by David Booth, and afterwards prosecuted by his administrators. The declaration contained three counts.

Motion in error from a judgment of the superior court. The original action was brought to the city court of the city of Hartford by the present plaintiff in error, as treasurer of the.city of Hartford, to recover a penalty imposed by statute, for the erection of a wooden building within the fire limits of the city, without the license-of the common council. The city court rendered judgment for the plaintiff, which judgment the superior court on a writ of error reversed.

Bill in equity for a sale of certain premises held by the petitioners and the respondent as tenants in common. The answer alleged that the petitioners had no equitable interest in the premises, but that Maria S. Denslow was the sole equitable owner thereof, under a deed to one Elihu Denslow, under whom the petitioners claimed, which deed, though absolute in form, was made solely in trust for the said Maria. The said Maria was not made a party to the bill.

This was an appeal to the superior court from the report of commissioners on the estate of William Robbins 2d, disallowing a claim presented by the appellants against the estate.

Bill in equity, brought by part owners of a vessel against the other part owners for an injunction, the possession of the vessel, and an account. The suit was brought originally to the city court of the city of Hartford.

Assumpsit on a promissory note, of which the defendant was maker. The suit was brought on the 23d of November, 1853. The note was dated October 13, 1853, and was for the payment of $800 at the Bank of Hartford County in thirty days from date. The ease was tried on the general issue, closed to the court, with notice of the defense of usury.

Assumpsit, against the defendant as endorser of a note of the Protection Insurance Company. The defendant had endorsed the note for the accommodation of the insurance company, at the solicitation of the president of the company.

Trover for certain liquors and the vessels in which they were contained.

Action on the case for the destruction of certain oxen of the plaintiff, through the negligence of the defendants in running over them with their locomotive and cars. The case was tried to the jury on the general issue with notice. The oxen, at the time of the injury, were at large on the highway, and went upon the railroad track. The fee of the ground occupied by the railroad was owned by the defendants.

Highway petition. The town of Derby was the only party respondent.

Disseizin. Tried to the court. On the trial the plaintiff claimed title to the demanded premises, by virtue of the levy of an execution thereon, as the property of Sterling S. Washband, the father of the defendant. The defendant claimed title thereto by virtue of two deeds from the said Sterling, one given in 1848, and one in 1851, which were given anterior to any attachment or levy by the plaintiff.

Appeal to the superior court from the report of commissioners on the estate of Charles Atwood deceased, disallowing a claim of the appellant. The claim of the appellant was upon the following note. “ $7,000. New York, 15th Feb., 1856. Thirty months after date I promise to pay to Charles Atwood or order seven thousand dollars, with interest, value received. George Kellogg.” (Indorsed) “ Charles Atwood.” The case was tried to the jury.

Trespass for breaking into the plaintiff’s house and seizing and carrying away certain brandy belonging to him, with the vessel containing it. The defense was that the act was done under the direction and in aid of one Charles Benjamin, a constable of the town of Danbury, in the execution of a warrant issued by a justice of the peace of that town, directing the constable to search for and seize certain liquors and the vessels in which they were contained.

Writ of error. The same ease had been formerly reserved by the superior court for the advice of this court, and judgment had been rendered in accordance with the advice given. See 23 Conn., 189.

Bill in equity. The facts of the ease are fully stated in the report of a former hearing of the same ease, anle, page 63.

Trespass for taking and driving away certain cattle of the plaintiff. The defense was that they were taken up and disposed of as stray cattle under the provisions of the statute on the subject.

Action on the case, for damage to the plaintiff’s cows, which were run over by the defendants’ cars. The negligence averred was that of not keeping up cattle-guards at a place where the railroad crossed a public highway, in consequence of which neglect the cows were able to pass and did pass .from the highway upon and along the track of the railroad, where they were killed by a night train.

Action of debt on a recognizance of the defendants as special bail. The facts, as stated by the judge of the superior court, for the purpose of taking the advice of this court thereon, were as follows: On the 24th day of November, 1853, the present plaintiff brought an action on the case for slander, against Horace Booth, and Harriet Booth his wife, for words spoken by the wife, to the county court for Fairfield county.

Petition for an injunction to restrain the respondents from using the school-house of the district for religious purposes. The facts were specially found by the court. The respondents were, an incorporated school district of the town of Stamford, regularly organized according to the laws of the state with regard to school districts, and the petitioner resided within the district and was the owner of real and personal estate within the same.

Trover and trespass de bonis asportatis. The first count was in the ordinary form in trover, for certain millinery goods of the plaintiff.

The opinion of the court in this case will be sufficiently understood without a statement of the facts. The plaintiffs moved for a new trial.

Trespass, qu. cl. fr. Both parties claimed title to the locus in quo and to be in lawful possession. The plaintiff claimed under a deed from the executor of Selah Gage, of South East, in the state of New York, who, it was admitted, died seized thereof in the year 1846. The defendant claimed title by a conveyance from the heirs at law of the said Selah. The land was situated in Banbury in this state.

Action on a probate bond, brought in the name of the judge of probate, by Joel Wright and Sarah his wife, to recover the amount of a legacy given to the said Sarah by the will of Benjamin Brush, of which will the defendant” Joseph Brush was the executor.

Trespass, to recover for certain machinery and cloths attached by the defendant as a deputy sheriff, as the property of the Bridgeport Woolen Mills, a corporation, in a suit brought by one Henry Hoag against the corporation.

Writ of error from a decree upon a bill for a foreclosure. The decree had been passed upon the default of the respondent. The bill was claimed by the plaintiff in error to be defective in not showing an interest in the mortgaged premises on the part of the petitioner. The decree, which followed substantially the language of the bill, was claimed to be defective for the same reason.

This was a petition for a highway, which was referred by the superior court to a committee, consisting of A. B. Lockwood, David Gallup and George Tillinghast. The committee reported against the petition, and the petitioners remonstrated against the acceptance of the report on the ground that the committee had been guilty of irregular and improper conduct in their proceedings.

Bill for a foreclosure upon a mechanics’ lien. The petitioner, under a contract with certain builders named Stratton & Bishop, had tinned the spire of a church built by them, and had filed a certificate under the provisions of the statute of 1855 with regard to mechanics’ liens, claiming a lien for his work on the church, the claim exceeding $25* The church was built by Stratton & Bishop under a written contract dated Dec. 4, 1854, with William H. Mason and others, acting as…

Bill in equity. The plaintiff averred that in July, 1851, the Union Woolen Mills, a corporation. located at Canaan, in Litchfield County, of which the plaintiff was a stockholder, was in need of aid to enable it to carry on its business, and applied to the plaintiff then residing in said Canaan, and to Lawrence one of the defendants, who was also a stockholder, to assist them with their credit, by indorsing the paper of the company—and that to secure them in so doing the…

Information for cheating by false pretenses. The information alleged that, at New Milford in the county of Litchfield, on, &c., William Penley of Danbury in the county of Fairfield, contriving and intending by false pretenses to cheat and defraud one Thaddeus M. Percy, of said New Milford, of his goods and chattels, to wit: one yoke of oxen, of the value of $ 100, did falsely, unlawfully and designedly represent to the said Percy, that he, the said Penley, then owned a farm…

This was a complaint by a grand juror of the town of Norwich, to the police court of the city of Norwich, charging the defendant with illegally selling spiritous liquors “ at and within the limits of the town of Norwich.” The defendant demurred to the complaint, but the court held the complaint sufficient, and rendered judgment against the defendant.

Bill in equity. Cornelia S. Wyllis died on the 5th of July, 1849, leaving a will, by which, after giving to her son, William H. Wyllis, $5000, to be paid in part on his arriving at the age of twenty-one years, and the remainder on his arriving at the age of twenty-five, she created a trust with regard to the remainder of her property, as follows: ‘ I give, devise and bequeath all the rest and residue of my estate, wheresoever the same may be situate, and of whatsoever it may…

Motion in error from a judgment of the superior court. The facts, which were specially found by the superior court, are sufficiently stated in the opinion.

Bill in equity to compel the conveyance of real estate, and for an injunction.

Bill in equity. The plaintiff', on. the 19th day of February, 1853, had leased to Samuel Arnold 2d and Isaac Arnold, two of the defendants, a tract of land of about thirty acres, owned by him in the town of Middletown, on which was a stone quarry—the lease, after describing the premises, proceeding as follows:— 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 piece of…

Ejectment. The facts were specially found by the superior court, and the case reserved for the advice of this court. The facts are sufficiently stated in the opinion of the court.

Action on the case for damage from a nuisance. The declaration alleged that the defendant, on the 21st day of March, 1857, was possessed and in the actual occupation and use of a certain grist mill, in the town of Lebanon, erected within the inclosed limits of a certain highway and within twenty feet of the traveled path, which was operated by a large overshot water wheel, uninclosed and uncovered, which when in motion was calculated to frighten horses ; that the mill and…

Information against the defendant for a nuisance in obstructing a highway. It was claimed in defense that the place obstructed was not a highway. The highway claimed had formerly been a part of the turnpike road of the Hop River Turnpike Company.