Volume 29 — Connecticut Reports

A new trial having been refused in this case, (ante, Vol. 28, p. 455,) the superior court rendered judgment for the plaintiffs, upon which the defendant filed a motion in error and brought the record before this court for revision, assigning as error the insufficiency of the declaration.

Assumpsit, on a policy of insurance. The plaintiff, on the 18th of January, 1856, made a written application to the defendants for insurance, the material parts of which are as follows : — “ Application of Samuel W. Hough, of Fairfield, Connecticut, for insurance against loss or damage by fire, by the City Fire Insurance Company, of Hartford, Conn., in the sum of $1,400, for the term of three years, commencing the 18th day of January, 1856, at noon, on the property…

Bill in equity to compel a conveyance of certain real estate, and for a foreclosure. The petitioners were Seth B. Jones and the New Haven County Bank. Held: at the time the suit was brought, by the New Haven County Bank, and most of the others, under circumstances which will be stated hereafter, by the other petitioner, Jones.

Information for larceny. The defendants, husband and wife, were requested by one Goodsell, of Woodbridge, in New Haven county, by whose house they were passing in a wagon on their way to New Haven, to carry to New Haven a box containing jewelry and other valuables, and deliver the same at a certain jewelry store there. They had been left at the house of Goodsell by a Mrs. Comer, the owner, who had requested that they should be forwarded to her at the place named in New Haven.

Trover for two billiard tables, tried to the jury. The plaintiff had delivered the tables to one Mellen, under a contract for the’ sale of them, at a price agreed upon, a part of the price being paid in cash and the negotiable notes of Mellen on time being given for the balance. The notes thus given were never paid.

Assumpsit, brought against the defendant as indorser of the following draft:— “ Robbins & Lawrence Co., Windsor, Yt., Oct. 6,1856. “ $8000.

Assumpsit, to recover the price of a quantity of tobacco sold by the plaintiff to the defendants. The case was referred to an auditor, who made a special finding of the facts. By the contract between the parties, the tobacco, which was to be of a certain agreed quality, was to be delivered to the Merchants’ Express Line at New York, to be forwarded by the express company, at the expense of the defendants, to Chicago, where they resided.

Assumpsit, upon a note and a book account, both of which became due at different dates in the year 1850. The claims were originally owned by the plaintiffs as partners under the name of Eddy & Cook. The defendant pleaded the statute of limitations.

Assumpsit, on a policy of insurance. On the trial in the superior court, after the plaintiff’s evidence was in, the defendants moved for a nonsuit of the plaintiff, which the court granted. The plaintiff afterwards moved that the nonsuit be set aside, but the court refused to grant the motion, and the plaintiff brought the case before this court by motion in error.

Complaint fora breach of the peace, under the 76th section of the statute with regard to crimes and punishments. After a verdict of guilty the defendant moved for a new trial, upon exceptions taken to the charge of the judge. The case is sufficiently stated in the opinion.

Assumpsit, for supplies furnished to paupers claimed to belong to the defendant town. Upon the trial to the jury, it became a material inquiry whether John D. Clark, one of the paupers, had acquired a settlement for himself in the town of Lyme, by commorancy therein. It was agreed that he became twenty-one years old on the 12th of April, 1825, and continued unmarried and without any family of his own until 1883.

Assumpsit, upon a contract of the defendants to make and set up a boiler for a steam engine for the plaintiff. The cause was tried to the jury on the general issue.

Assumpsit on a warranty. The declaration alleged that on the 21st day of September, 1857, the defendant sold to the plaintiffs the patent right for Atwater’s patent sewing machines, for the county of Middlesex, for the sum of four hundred dollars, and promised to deliver to them a sample machine within ten days, and at the time of the sale warranted the machines made under the patent “ to work well and not drop stitches, and to do' the promiscuous sewing of a family; ” and…

Indictment for an assault with intent to murder. The jury found the defendant guilty, and he moved in arrest of judgment. On this motion the following facts were found. Halsey Thomas, one of the jurors in the cause, was related to the defendant, the juror’s father being the defendant’s first cousin. The relationship was unknown, both to the juror and to the defendant, until about the time the evidence was closed.

<p>Where a person, through misapprehension, ignorance, or inadvertence, does acts or makes declarations that mislead another to his injury, but where at the same time there is no willful deception or culpable negligence, and no intention that the representation should be acted on as true by the other party, and nothing that is equivalent to a promise that the representation is true, the person making the declarations or doing the acts is not estopped from proving the truth against the party thus misled.</p>

Assumpsit, for supplies furnished to a pauper. On the trial of the case to the jury, the principal question in issue was, whether Preston Caulkins,the pauper, had gained a settlement in Salisbury by commorancy.

Assumpsit, on a promissory note of the defendant, for the sum of $1,910.69, dated January 1, 1855. The defendant pleaded the general issue, with notice of the special matters below s^ed. Tlie issue was closed to the jury.

Action on the case for a vexatious and excessive. nnent of the plaintiff’s property, with a count in trover. ..no first count, after stating the attachment and describing the prlherty attached, alleged that there was no just cause for the institution of the suit, which was afterwards decided in the presenil plaintiff’s favor, and that the amount of the property attached, was much more in value than was necessary to secure the demand in the writ of attachment if the same had…

Bill in equity, to obtain the title to^ certain real estate, and for an injunction against the pi-osecution of an action of ejectment. The facts were specially found by the superior court. The land in question was an undivided moiety of a tract of eighty-five acres, which moiety formerly belonged to Cynthia Geer, the wife of David Geer.

Assumpsit, brought by the receivers of the Litchfield Bank in the name of the bank. The declaration contained several counts upon certain promissory notes execnted'by the defendant to the bank, and held by the bank at the time of its failure, amounting together to the sum of $2,056.44, and a count upon a subscription of the defendant to the capital stock of the bank at the time of its organization.

Indictment for murder. On the trial of the case to the jury, the attorney for the state offered evidence to prove that the deceased, Lorana Wood, was found dead, lying near her dwelling house, about twelve o’clock on the 14th day of July, 1859, with her face and head in a pool of water; that the prisoner, who at the time of her death was in her employ as a hired man, had some weeks before made some threats against her; that he was an intemperate man, and much intoxicated on…

Action upon the statute, to recover for an injury sustained by reason of a defect in a highway. The defendants denied that the road in question was a public highway. On the trial to the jury, on the general issue, the plaintiff introduced evidence -to prove that the road in question was a highway by dedication, and did not claim that it had become a highway in any other manner.

Debt, for the interest on thirty-one bonds of the city of New London, the interest being certified by interest warrants appended to the bonds. One of the bonds, with the interest warrant belonging to it, was as follows: the others being like it with only a change of numbers. New London City Scrip. United States of America, State of Connecticut, — Certificate, No. 38, $1000.

Action on the case for the diversion of water. The declaration alleged that the plaintiff, on the 17th day of October, 1851, was, and ever since had been, lawfully seized and possessed of a certain saw-mill, situated in the town of Glastenbúry, near to a certain stream or water course there, and which said stream or water course, before and at the time of committing the grievances mentioned, had been accustomed to run and flow, and of right had run and flowed, and still of…

Action on the statute with regard to highways and bridges, brought by the plaintiff, as administrator of Harriet Fox, to recover damages for the loss of her life by reason of the negligence of the defendants in not maintaining a railing along the sides of a causeway, which was a part of a public highway of the town. The case is sufficiently stated in the opinion of the court.

Bill in equity for an injunction against the use of a ferry by the respondents.

Assumpsit upon the following note:— “Wethersfield, Conn., April 23,1855. After eight months, with interest, we jointly and severally promise to pay Edward P. Smith or order four hundred dollars.

Bill in equity, brought by the petitioner as trustee of the assigned estate of John W. Seymour, to obtain the legal title to eighty-three shares of the stock of the .¿Etna Insurance Company, standing on the books of the company in the name of Seymour. Seymour had absconded, and the certificates of the stock were either carried away by him orwere lost.

Bills for tbe foreclosure of builders’ liens on three paper mills belonging to the defendants. The facts in the two cases are similar in all essential points, a part of the work and materials for which the liens were claimed having been furnished by the petitioner Rose individually, and a part by the copartnership of Rose & Yaughn, of which he was a member, who were the petitioners in the other bill. A statement of the case of the petitioner Rose will therefore be sufficient.

An amicable submission, upon an agreed statement of facts, reserved by the superior court for the advice of this court.' The plaintiff was the holder of eight bonds of the Hartford, Providence and Eishkill Railroad Company, for $1,000 each, with interest payable semi-annually at the rate of seven per cent per annum, all of which were over due.

Indictment for manslaughter. The crime was committed on the 6th day of May, 1860, and the prisoner was tried and convicted at the term of the superior court holden in Hartford county in July 1860.

Bill to redeem certain mortgaged premises; with a sup plemental bill alleging that the respondents, since the suit was brought, had become… Held: in the name of the petitioner, the real estate released by the respondents and mortgaged to Eox, Henderson & Co. by Robbins & Lawrence, with a large amount of machinery included in that mortgage, and still remaining on the premises, which mortgage-had been foreclosed by the petitioner, and that the value of the land and machinery…

■' Writ of error from the judgment of a justice of ihe peace, upon a summary process brought by the present defendant for the recovery of certain premises leased to the present plaintiff. The writ of error was brought to the superior court and by that court reserved for the advice of this court. By the bill of exceptions allowed by the justice, and upon which the only questions in the case arose, the following facts appeared.

Indictment for arson. The house set on fire was described in the indictment as “ a certain dwelling-house of one John W. Slater.” On the trial it appeared that the fire was set in the basement of the southerly part of a building which was originally constructed for one dwelling-house, and which was situated on the westerly side of Church street, in the city of New Haven, and that it was forty feet in width, fronting on the street — that no part of the building was burned…

Assumpsit, brought against the defendant as indorser of three notes, made by one Rowland, payable to the order of the defendant, one for $2,275, dated March 23,1857, one for $2,337, dated April 20, 1857, and one for $2,510, dated May 30, 1857, all payable at six months from date. The defendant pleaded the general issue, with notice, which was closed to the court.

Assumpsit, brought to recover from the town of Greenwich the sum of sis hundred dollars which the town had voted to pay to the… Held: passed the following votes:— “ Voted, That the town of Greenwich accept of and agree to maintain that portion of the bridge within the state of Connecticut which leads from East Portchester, in the state of Connecticut, to Portchester in the state of New York. “ Voted, That the street called Mill street, and that part of Water street…

Trespass qu. cl. fr. The trespass alleged was the removal by the defendant of a fence erected by the plaintiff across certain land of which the plaintiff claimed the exclusive ownership, but which the defendant claimed to be highway. The case was tried to the court, on the general issue, with notice of justification.

Assumpsit on a policy of insurance. The material part of the policy was as follows:— “ Charter Oak Fire and Marine Insurance Company, Hartford, Conn., $3,000.

Assumpsit, on a promissory note of the defendant given to the Litchfield Bank in part payment for five shares of the stock of the bank, transferred to him under a contract with the bank soon after its organization, by one of the original subscribers to the stock. The suit was brought by the receivers of the bank. The case was tried to the jury on the general issue with notice.

Ejectment, tried to the jury on the general issue. Held: that the centre of the wall was the boundary line between the lands, except such knowledge as is to be inferred from the use and occupancy of the land in the manner before stated.

The reasons of appeal assigned by the appellants were, 1st, that the testator was not of sound mind at the time the will was executed, and 2nd, that he had been induced to sign the will by fraud and undue influence used upon him, while enfeebled in mind, by one Ledyard Park, who was the principal legatee under the will. The appellees denied these allegations, and issue was closed upon them, and the case tried to the jury.

Assumpsit, brought by the plaintiff as executor of R. I. Stoddard, to recover the amount of two taxes laid in the life time of the testator and levied on his property after his death.

General assumpsit, brought to recover the price of certain pumps claimed by the plaintiffs to have been sold and delivered by them to tlie defendant. The case was tried to the court on the general issue.

Bill in equity. The respondents had attached, and after-wards levied an execution upon, the equity of redemption in certain real estate of the petitioner, leaving about $1,400 of their judgment unsatisfied.

Ejectment. Exception was taken by the defendant on the trial to the admission of a distribution, under an order of the court of probate, of the estate of Oran Sherwood, embracing the demanded premises ; and judgment having been rendered for the plaintiff the defendant moved for a new trial. The case will be sufficiently understood from the opinion of the court.

Action on the 5th section of the statute concerning fences, (Rev. Stat., tit. 15,) to recover double the value of repairs made by the plaintiff upon the fence of the defendant, the fence having been found insufficient by the fence viewers and the defendant having neglected to repair it after notice from them. The case was tried to the jury on the general -issue.

Action on the case, for an injury to the testator of the plaintiff, through the negligence of the defendants, resulting in his death ; tried to the jury on the general issue. The defendants under the authority of their charter had located and constructed their railroad across the main street of the village of Stratford, and thence along a lane that ran into the street.

Bill in equity. The principal allegations of the bill were as follows:— That on the 29th day of April, 1858, Edward A. Parsons, of Newtown in the county of Fairfield, was the lawful owner in fee of the following tract of land, and buildings thereon standipg, and situated in said Newtown, (describing the same;) that said Edward then was, and long had been, a member of the firm of Wm.

Scire facias, upon a recognizance entered into by tbe defendant with Albert Partrick, for the appearance of the latter before the superior court, upon a binding over by a justice of the peace, forfeited in the superior court. The defendant pleaded the general issue, which was closed to the court, with notice of the facts hereinafter stated. On the trial the plaintiff offered in evidence the record of the proceedings before the justice.

Assumpsit, brought originally before a justice of the peace, and appealed by the defendant to the superior court. The defendant pleaded the general issue, with notice of payment and set-off. The case was tried to the court. The plaintiff’s account was for services in repairing a wagon for the defendant, for which the defendant agreed at the time to pay in cash within a few days.

Information for theft. The prisoners were charged with having feloniously taken an iron safe or chest belonging to an express company, from the railroad cars of the New York and New Haven Railroad Company, in which it was being conveyed, with a large amount of bank bills and other valuable property contained in it.

Assumpsit on a promissory note indorsed by the defendant, tried in the superior court on an issue closed to the court, and judgment rendered for the defendant. The plaintiffs moved for a new trial. The point decided by this court will be sufficiently understood from the opinion, without a statement of the facts.

Trespass qu. cl. fr. and de bonis asportatis. The defendant pleaded the general issue, with notice that he should offer evidence to prove that he was, at the time the goods were taken, a lawful constable of the town of New Haven, (where the trespass was alleged to have been committed,) and that he attached them as the property of one Anthony, to whom they belonged, upon a writ placed in his hands for service ; also that the liquors, casks and kegs described in the…

Petition for a highway. The part of the petition descriptive of the highway prayed for was as follows:— “ That the highway called the East and West Road, leading from Shepang Bridge, near the residence of Joseph Hawley in said Southbury, to the Mulberry Four Corners, is rough and hilly, and most of the way impassable for teams, thereby subjecting the inhabitants of the west part of said Soutlibqry and of Bridgewater to great inconvenience in traveling tq and from Southbury…

Action on the case, brought by the plaintiff as administrator of the estate of John Murphy, for an injury to the intestate, through the negligence of the defendants, causing his death. A demurrer by the defendants was overruled and the case heard in damages..

Debt, on a bond in the penal sum of $1,000, given by the defendant and another to the town of East Hartford, with the following condition:— “ The condition of the foregoing bond is such, that whereas the said Samuel Hunn, Jr., is the father of James Hunn, an illegitimate child, and is liable for his support, and whereas the legal place of settlement of said child is in said town of East Hartford, and in the event that he should at any time be unable to support himself said…

Assumpsit, for breach of a contract to manufacture and deliver to the plaintiff one hundred sewing machines.

Assumpsit, brought originally before a justice of the peace. The defendant before the justice pleaded in abatement the pendency of another suit for the same cause of action. The justice, on an issue closed upon this plea, rendered judgment against the defendant, from which the defendant moved for an appeal to the superior court. The justice refused to allow the appeal and ordered him to plead to the merits.

Action on the case for damage caused to the plaintiff’s property by the raising of a causeway by the defendants. The case was tried to the jury in the superior court on the general issue, with notice of the special matters of defense hereinafter stated.

The application alleged that the respondents were incorporated by the legislature of this state in the year 1883, with power to construct and operate, and for the purpose of constructing and operating, a railroad for the transportation of passengers andfreight, from the city of Hartford to the navigable waters of New Haven harbor at some point between the canal basin and the west end of Tomlinson Bridge, and by a later act were empowered to extend their road to the north…

Action on the case, brought by the plaintiff, a minor, by his next friend, for an injury caused by the negligence of the defendants, in whose factory the plaintiff was an operative, in leaving certain dangerous machinery uncovered. The case was tried to the jury on the general issue.

<p>Appeal from probate, reserved upon facts found for the advice of this court. The case is sufficiently stated in the opinion.</p>

Complaint for an assault and battery and breach of the peace, brought to the superior court by appeal from the judgment of a justice of the peace. On the trial to the jury in the superior court, the attorney for the state introduced evidence of an assault upon one Benjamin E. Palmer, named in the complaint, committed by the defendant, in a dwelling-house owned and occupied by the defendant.

Action on an award, brought against the defendant as executor of Asa Spencer; tried to the jury in the superior court on the general issue with notice. On the 8th day of October, 1857, the plaintiff, who resided in the state, of Illinois, was occupying, through his agent, Lewis White, a farm in Pomfret in this state, belonging to Spencer, the defendant’s testator, under a lease which was to expire on the first day of April, 1859.

Bill in equity, to set aside a conveyance claimed to have been fraudulently obtained from the petitioner by the respondent. The case was referred to a committee, whose report embraced the following facts. The petitioner was the brother and sole heir at law of Julia Goodspeed, who died intestate on the 18th of September, 1859, leaving real and personal estate of the value of about $7,000.

Assumpsit, to recover freight for a- cargo of stone carried from the town of Cromwell to the city of New York. The defendants pleaded the general issue, with notice of the special matters below stated, and the case was tried to the court, and the following facts specially found. The plaintiff was the captain and part owner of a vessel which he was running on shares, he receiving one half of the profits and the other owners the other half.

Bill in equity, alleging that the petitioner and the defendants had been partners and that the partnership was dissolved, and praying for a division of the property of the partnership among the partners, and for a decree requiring the defendants to pay the petitioner two-thirds of the value of certain personal property alleged to have been sold by the petitioner to the firm at the time of the formation of the partnership.