Volume 32 — Connecticut Reports

Wkit of error, to reverse a decree of the superior court upon a bill in equity brought by the defendant in error, against the plaintiff in error, who was his wife.

Motion in error from a judgment of tlie superior court, in an action of debt on a recognizance. The recognizance was entered into by the defendants before a justice of the peace, on an appeal taken by the defendant Lake from a judgment against him by the justice in favor of the present plaintiff. The case is sufficiently stated in the opinion.

Trover for eleven cider barrels ; tried to tbe jury in the superior court, on the general issue, with notice, before Carpenter, J. On the trial the plaintiff offered evidence to prove that the barrels in question, filled with cider, were consigned to one James Flynn, of Norwalk, and that through Flynn as the agent of the plaintiff the barrels subsequently passed into the hands of the defendant, for the purpose of selling the cider in New York, and that the barrels were to be…

Assumpsit on a policy of insurance on the bark Nimrod, for one year from the 1st day of May, 1860, and another like policy on her freight for the same time; alleging a total loss of the vessel by the perils of the sea on the 2d of February, 1861.

Bill for an injunction, against the payment by the town of North Branford, of which the petitioners were inhabitants and tax payers, of… Held: shall vote to confirm such previous action, then the same shall be considered good and valid in the same manner as if such town or towns had the inherent legal power to so appropriate money ; and such towns so confirming their former action shall have the power to borrow upon the credit of the town, the money necessary to carry the…

Assumpsit. The fourth count of the declaration, which was the only one relied on, alleged that on the 18th of September, 1850, the plaintiff, and Richard M. Clarke, since deceased, were co-partners under the name of Clarke & Co., and that at that time the defendant and one Henry C. Coggeshall were partners under the name of Coggeshall & Tappin, and were indebted to Clarke & Co. by a note executed by the firm, dated November 24,1845, for the sum of $980.39, payable four…

■ Assumpsit for supplies furnished to Sophia Crook, a pauper, alleged to belong to the defendant town. The case was tried in the superior court on the general issue, closed to the court, and the following facts found Sophia Crook, the pauper, was born in Waterbury, on the 29th of September, 1885, and has never gained any settlement in her own right. She is the lawful child of George Crook.

Tbespass for an assault, tried to the jury in the superior court, on the general issue, with notice that the acts were done in lawful self defence, before Park, J. On the trial it was admitted that the plaintiff received the injury complained of by means of two pistol shots fired by Delos Platt, one of the defendants.

Case, for damages in the nature of demurrage. Tried to the jury in the superior court, on the general issue, before Park, J. On the trial the plaintiff offered evidence to prove that the schooner J. Goodspeed, on the 14th of September, 1868, received on board a cargo of coal, for which the master signed the following bill of lading:—“ Received of the Pennsylvania Coal Company, on board the schooner J. Goodspeed, whereof I am master, one hundred fifty-two 19-20ths tons…

Assumpsit. The writ, which was returnable to the superior court, was issued by a justice of the peace, and directed to au indifferent person for immediate service, with a certificate endorsed upon it by the magistrate, as required by the statute in such case, that he had administered the prescribed oath and had so directed the writ.

Assumpsit, to recover from the defendant, a constable, the amount paid to him for a horse sold by him upon an execution and bought by the plaintiff; the execution debtor having had no title, and the horse having been taken from the plaintiff by the owner. There was one special count in the declaration and the common count for money had and received.

Assumpsit. The defendants were described in the writ as follows :—“ Erastus Corning, Erastus Corning, Jr., and John E. Winslow, partners in trade, doing business in Troy, in the state of New York, under the name and style of Corning, Winslow & Co.” The defendants pleaded in abatement the non-joinder of one Gilbert C. Davidson, who was averred in the plea to be a member of the firm.

Action on the statute to recover an amount awarded by fence viewers for the expense of making a part of a division fence belonging to the defendant; tried in the superior court, on an issue closed to the court, before Me Curdy, J. Judgment for plaintiff; motion for new trial by defendant. The case is sufficiently stated in the opinion.

<p>The petitioner and respondent, who were brothers, purchased a farm in 1833, which was paid for principally by their father, who invested therein all his property, the petitioner paying nothing and the respondent but a small sum. The deed was taken to them jointly and they were to occupy together and jointly support their father. In 1839 the petitioner, having become embarrassed, conveyed his title to his father and removed from the premises, and the respondent assumed the sole charge of the father’s support, until the death of the latter in 1846. After this the respondent continued in exclusive possession until 1857, when, wishing to sell the farm, he applied to the petitioner for a release of his interest as heir, which the latter gave, no agreement being made either to reconvey or account for the proceeds of the sale. The sale not having been effected the respondent continued in exclusive possession until 1862, when the petitioner brought a bill in equity, to compel him to reconvey the interest conveyed to him in 1857, or account for its .value. Held, that the petitioner was not entitled to the relief sought.</p>

Suit on an award; tried in the superior court, before Phelps, T. Judgment for the plaintiff and motion for a new trial by the defendant. The case is sufficiently stated in th. opinion.

Petition for an injunction. The petition alleged that the legal voters of the town of Woodbury held a special town meeting, in pursuance of a call by the selectmen for the same, on the 13th day of August, 1863, at which the following votes were passed. “ Whereas, under the law of Congress passed March 3d, 1863, known as the Conscription Law, and under the call of the President of the United States, the apportionment thereunder of the town of Woodbury is supposed to be…

Petition for an injunction. The petition alleged that the petitioner was the owner of property, real and personal, and liable to the payment of taxes in the town of Harwinton; that at a special meeting of the town, held on the 22d of August, 1863, for the purpose of appropriating money from the treasury of the town, to aid such persons as might be drafted from the town by authority of the United States, under an act of Congress approved March 3d, 1863, entitled “ an act for…

Coven ¿NT, to recover a stipulated sxxm of money. Plea of set-off. The debt offered to be set off was by a note of the plaintiff to the defendant, given before the commencement of the suit, bxxt not due at the time the suit was brought, though due at the time of trial. The plaintiff objected to'the set-off because the debt was not due when the suit was brought. Case reserved by the superior, court for advice.

Bill in equity, reserved by the superior court for the advice of this court, on facts found. The case is sufficiently stated in the opinion.

Indebitatus Assumpsit for goods sold; tried in the superior court, on the general issue, with notice, closed to the court, before Carpenter, J. The notice alleged that the goods delivered were not of the quality agreed and had never been accepted by the defendant.

Bill for a foreclosure, to which two cross-bills were filed. The facts as found by the court are as follows:— On the 8th day of January, 1851, Phillip Ripley executed a bond and mortgage to the State of .Connecticut, to secure a loan of $7,000 from the School Fund.

Scire facias upon foreign attachment. Plea in abatement that there was no revenue stamp affixed to the writ. The superior court (Carpenter, 7.,) rendered judgment for the defendant, and the plaintiff brought the record before this court by motion in error.

Trover for a horse, wagon and harness. The plaintiff described himself in the writ as the trustee of his wife, Harriet Limbert, and alleged in the declaration that the property belonged to her, and was taken out of his possession by the defendants. The defendants pleaded the general issue, with notice of a justification.

Covenant on a guaranty. Tried in the superior court on the general issue, closed to the court, before Carpenter, J. The declaration alleged that on the 17th day of December, 1858, L. & L. W. Kennedy of Milwaukee, in the state of Wisconsin, applied to the plaintiff for a loan of $3,500 for the period of three years, with interest payable semi-annually at twelve per cent., and proposed to secure the payment by a mortgage of certain lots in Milwaukee, owned by the wife of L.…

Amicable submission to the superior court, upon an agreed statement of facts. The defendant is a savings bank, incorporated with the usual powers and duties of savings banks, and located in the city of Hartford. On the 1st day of July, 1863, it had in deposit the sum of $4,758,273.37, of which the sum of $500,161 was then invested in securities of the government of the United States, which are declared by act of Congress to be exempt from taxation.

Covenant, upon a receipt given to the plaintiff as sheriff, for property attached. The case had been before this court upon a reservation of it by the superior court for advice, and is reported in 31 Conn. R.., 560. The facts there stated were found by the superior court for the purpose of the reservation.

These were two separate actions of general assumpsit, one against the town of New Haven and the other against the town of East Haven, for work done under similar contracts, in building piers for a bridge across the Quinnipiac river, at Fair Haven village, which river separates the two towns.

Writ of error, brought to the superior court to reverse a judgment in a scire facias rendered by a justice of the peace against the plaintiffs in error as garnishees. Judgment affirmed by the superior court, (Pardee, /.,) and motion in error by the plaintiffs. The case is sufficiently stated in the opinion.

Replevin of beasts impounded; avowry that they were taken damage feasant on defendant’s land ; tried to the jury in the superior court before Dutton, J. The court charged the jury? contrary to the claim.of the plaintiff, that if they should find that the cattle broke and entered through the plaintiff’s insufficient fence, their verdict must be for the defendant, although they should also find that the defendant’s portion of the fence was not a sufficient and lawful fence and…

<p>Proceedings under the bastardy act {Rev. Stat., tit. 7, sec. 38,) though civil in their nature are in form like criminal proceedings, and a justice of the peace before whom they are pending may, on an adjournment, require the defendant to enter into a recognizance for his future appearance.</p> <p>And where the recognizance requires him not only tó appear but to abide the judgment of the court, it is valid.</p> <p>The condition to abide the judgment of the court is not satisfied by a mere appearance of the defendant at the adjourned court, but he must appear at all the times fixed by future adjournments and whenever required by the court.</p> <p>Where a bastardy case was adjourned by the justice from the 20th to the 27th of October, 1860, and thence, by agreement of the parties, from day to day till the 21st day of September, 1861, without tiie appearance of either of the parties on any of the days of daily adjournment, it was held that the case was still open and within the jurisdiction of the justice, and that a recognizance entered into by the defendant with a surety at the first adjournment, to appear on the 27th day of October, 1860, and abide the judgment of the court, was forfeited by his default of appearance when called on the 2lst day of September, 1861, although he had appeared at the adjourned court on the 27th of October, 1860.</p> <p>To make such adjournments legal however there must have been an actual adjourn- . ment from day to day. If a case should be suffered to lie without any regular adjournment, to be called up at some future and uncertain time, it would be discontinued thereby..</p> <p>Where the record of the justice was, that the parties agreed that'the case should be continued from day to day as security for the performance of certain terms of settlement by the defendant, until further action should be required by either party, and that “ the case was thus continued, without the appearance in person ’ or otherwise of either party, and without any further action or order by the court, until the 21st day of September, &c.,” the record was held to mean that . the case was actually continued from day to day, without any further action or order of the court than such continuances.</p> <p>A recognizance is an obligation of record, and is strictly a bond, and where adapted to the nature of the case will answer the requirement of a bond in a statute.</p>

Bill in equity. The bill alleged that the Beacon Dam Company, a manufacturing corporation located in this state, issued its bonds for sale in the market, to the amount of $50,000, payable in New York city, and secured them by a mortgage of its real estate, situated in this state, to James P. Penniman of the city of New York, Curtis B. Raymond of the city of Boston, and Leverett Candee of the city of New Haven, in trust for the benefit of the bondholders ; that Gorham D.…

Trespass on tlie case, brought upon a section of the charter of the city of New Haven, to recover the expense of widening a bridge within the city over the railroad of the defendants. The New Haven and Northampton Company was incorporated as a canal company in the year 1836, and in 1846 were authorized to construct a railroad along the line of the canal, and in the place of the latter which was abandoned.

Trespass for taking a sloop. Defence, that it was attached by the defendants as the property of the plaintiff’s yendors. Tried in the superior court, on an issue closed to the court, before Carpenter, Jr Judgment for the plaintiff and motion for a new trial by the defendants.' The case is sufficiently stated in the opinion.

Bill for a foreclosure. The bill alleged that on the 27th of May, 1858, John R. Parker made his promissory note of that date, by which' lie promised to pay, three years after date, to Giles Mandeville or order, three hundred dollars with interest, for value received, and delivered it to Mandeville, and on the same day, to secure the payment of that note with others, made and delivered to Mandeville a mortgage of a piece of land situated in Hartford, of which he was seized in…

General Assumpsit, appealed to the superior court from the judgment of a justice of the peace; tried to the jury, on the general issue, before Park, J. On the trial the .plaintiff sought to recover for a quantity of cider, and the value of his services in taking care of twelve cider barrels which he'claimed belonged to the defendant, and for the storage of the same.

Assumpsit, for freight, and for damages in the nature of demurrage. The declaration contained one general count, one special count in which a promise to pay the damages as a debt was stated, and a special count for unliquidated damages. The case was tried to the court on the general issue with notice, and the following facts found.

Assumpsit on a bank bill. Plea the general issue, with notice that the bill had been stolen from the bank and purchased by the plaintiff with knowledge that it had been stolen.

Motion in error from a decree of the superior court (Pardee, /.) upon a bill of foreclosure. The general principles involved in the decision of the court will be sufficiently understood without a statement of the facts of the case, which would occupy much space.

Assumpsit. After a trial to the jury in the superior court and a verdict for the defendant, the plaintiffs brought a petition for a new trial, which was granted by the superior court, and the case again tried to the jury upon the same issue before Carpenter, J. The deposition of Nathan Spear, oue of the plaintiffs, had been taken to be used on the trial of the petition for a new trial, and was so used without objection from the defendant.

Assumpsit on a guaranty; tried to the jury in the superior court, on the general issue, before Pardee, J. The guaranty was as follows:—“Philadelphia, Sept. 15, 1862. Mr. John Rice, sir :—Whereas Messrs.

General assumpsit, against tlie defendant as executor of Abigail Marcy. The suit was brought to recover the amount of an account for goods sold and money lent to the said Abigail, during lier life time, and the defendant was claimed to be liable as executor in 1ns own wrong.

Debt on a probate bond ; tried in the superior court on the general issue, with notice, before Park, I The breach claimed was the neglect of the defendant as administrator of the estate of Emeline Sherwood, to inventory certain property alleged to belong to the estate.

The appellant, Isaac Lake, who was one of the heirs at law of Isaac Lake deceased, appealed to the superior court from a decree of the court of probate accepting a distribution of the estate of the deceased, on the ground that a portion of the estate was distributed which was intestate estate. The question depended upon a construction of the will, and several other heirs were interested equally with the appellant in the result of the appeal.

Action of trespass, founded upon the 6th section of the act of 1861, “ for the preservation of game and fish,” which provides that any person who with implements for hunting or fishing shall enter tipon the land of another for the purpose of hunting or fishing, in violation of certain previous provisions of the act, without the consent of the owner, shall be deemed guilty of a trespass, and shall forfeit and pay to the owner, in addition to a penalty previously provided for…

Disseizin; reserved by tbe superior court, upon facts found, for the advice of this court. The case is fully stated in the opinion.

Writ of error from the judgment of a justice of the peace in a proceeding of summary process ; reserved by the superior court for the advice of this court. The case is sufficiently stated in the opinion.

The . appellant assigned as a reason of appeal that the citation issued by the court of probate, upon the petition for the appointment of the trustee, was void by reason of the omission to affix a revenue stamp thereto. It appeared that a proper revenue stamp was affixed to the petition by the attorney of the petitioner, by whom the petition was drawn, and canceled by him, but that no stamp was affixed to the citation.

<p>The dying declarations of a person fatally injured by the act of another, as to^the facts attending the injury, are not admissible in evidence against the defendant in a civil suit brought for the injury.</p> <p>Upon a hearing in damages after a demurrer to a declaration charging an injury by the negligence of the defendant, the defendant may show, for the purpose of reducing the damages to a nominal sum, that the plaintiff was guilty of negligence directly contributing to the injury.</p>

General Assumpsit for money liSd and received ; with a second count alleging that a certain chest of tools belonging to the plaintiff and used by him in his trade as a joiner, which was in the possession of the defendant, was wrongfully detained by him, though demanded by the plaintiff, and that the defendant refused to deliver it up until the plaintiff should pay him $25 ; that the plaintiff had sustained great damage by being deprived of the chest and by being unable to…

Petition for a new trial in the case of Clarke v. Tappin, reported ante, page 56.

<p>A declaration alleged a false warranty of the value of a river landing by which the plaintiff was induced to purchase a lease of it held by the defendants. The plaintiff was allowed to amend in court by inserting averments that a quantity of coal was covered by the same warranty and embraced in the same sale, and by adding a new count alleging that by fraudulent representations of the value of the landing and of the character of the coal he had been induced to purchase the lease and the coal. Held, that the amendments did riot change the “ ground of the action ” within the meaning of the statute of amendments, and that the court had power to allow them.</p> <p>The amendments were made on the 20th day of the first term of the court, but did not come to the actual knowledge of the defendants’ counsel until several terms later and just before the trial. They then moved/that they be stricken out, but the court permitted them to stand. After a verdict against them the defendants moved for a-new trial for error in not disallowing the amendments. Held,</p> <p>1. That the motion for a new trial was a proper remedy.</p> <p>2. That there had been in the circumstances no waiver of objection to the amendments.</p> <p>3. That if it was not within the power of the court to allow the amendments the motion to strike them out could be made at any time.</p>

Assumpsit, charging the defendants in one count as ordinary indorsers of a promissory note, and in another as indorsers, as third persons, of a note payable to the order of the plaintiff; alleging in the latter that the defendants, by their indorsement of the note in blank, promised that the note was due and payable according to its tenor and that the same should be collectible upon due diligence when it should come to maturity, that the note was not paid by the maker at…

<p>The plaintiff held a promissory note endorsed by the defendant for the accommodation of the makers, which had been protested for non-payment, the makers having become and still remaining insolvent. A firm of which the plaintiff was a member owed the makers a larger sum than the amount of the note, against which, if sued, they could by statute have set off the claim held by the plaintiff. Without requiring such application the firm paid the makers the amount owed them, with full knowledge on the part of the plaintiff of all the facts. Held, in an action brought against the defendant on his indorsement, that he was not discharged by the neglect of the plaintiff to secure an application of the debt of the firm to the payment of the note.</p> <p>A creditor is under no obligation, towards a surety, of active diligence to collect the debt of the principal.</p> <p>The security, the discharge of which by a creditor will release a surety, must be a mortgage, pledge or lien—some right to or interest in property which the creditor can hold in trust for the surety and to which the surety if he pay the debt can be subrogated; and the right to apply or hold must exist and be absolute.</p>

Petition for an injunction and for a new trial. The following facts were found by the superior court. Miller, the respondent, on the 30th of May, 1862, brought an action of trover against Seymour, the petitioner, returnable before a justice of the peace at Farmington in Hartford County, on the 20th day of June, when the parties appeared and were heard before the justice, and judgment was rendered for the defendant in the suit.

<p>A son working with his father on a farm occupied by the latter, and living with his family on the farm in a part of the same house with his father, sold a yoke of cattle which he owned and which had been for two years used on the farm. The purchase was made in good faith, but the cattle after being delivered to the purchaser at his house and kept by him a day or two, were leased and delivered by him to the father, and placed back, with the assent of the purchaser, upon the same farm and used in the same manner as before. They so remained for more than a year, when a creditor of the son attached them as his property, Held, that they were liable to such attachment.</p> <p>It is not enough that there is an actual delivery, and an actual change of possession as between the vendor and vendee, so long as the property, without legal excuse, is so placed back into the same condition and the same apparent relation to the vendor, that there is no such manifest and continued change of possession as would indicate to the world that there has been a change of title.</p>

<p>Where a voluntary subscription has been made for a charitable object, and the persons having the charity in charge have, in consequence of the subscription, fairly and reasonably made advances or incurred expenses for the benefit of the charity, the subscription will be binding.</p> <p>And it seems that where such a subscription is one of several mutual and dependent subscriptions, it may be sustained on that ground.</p> <p>Where a failing debtor makes a conveyance void as against creditors under the insolvent iaw, it can not be set aside by such creditors except by proceedings under the insolvent law.</p>

<p>A testator by bis will as originally executed, gave to his brother five hundred shares of certain stock, giving also other shares of the same stock to sundry other legatees; and by a residuary clause of the will he gave all the remaining stock of that kind of which he should die possessed, to the several persons to whom he had before given legacies of the stock, to be divided among them in the proportions in which the legacies of the stock had been given. By a codicil the testator, “ for reasons growing out oí his late unbrotherly conduct,” revoked the legacy of five hundred shares to his brother and gave the shares to another legatee. Held, that the legacy of the share of the residue of the stock was not revoked.</p> <p>The legacy of the share of the residue was‘regarded as not a dependent or auxiliary legacy, but as an independent one, and consequently as not affected by the revocation of the first legacy.</p> <p>A second legacy will never be presumed to be a dependent legacy. To make it dependent a clear intention to that effect must appear on the face of the will.</p> <p>"Where a bequest has been once made, it will not be considered revoked unless no other construction can fairly be put upon the language.</p> <p>"While it is a rule that a will and codicil are to be read as of the date of the codicil, yet where legacies have been revoked by the codicil it does not follow that the will is to be read as if they had never been in it. The revoked clauses may be read for the purpose of understanding better the meaning of the clauses which remain.</p> <p>A legatee may bring an action of assumpsit for a legacy which has become due. And a bill in equity will lie in such a case, where there is ground for equitable jurisdiction in connection with the claim, as where a discovery is sought, or an account, or where the relief sought is of suck a specific character that the remedy at law is inadequate.</p> <p>And it does not affect the case that the estate is in settlement in the court of probate and is represented insolvent, where it is in fact solvent and the legacy lias become payable, nor that an action could have been brought on the probate bond for the non-payment of the legacy.</p>

<p>Petition for an injunction against the opening and construction of a street laid out by the common council of the city of Hartford, and for the setting aside of certain preliminary proceedings on the part of the city. On the trial in the superior court upon a general denial, the following facts were found by the court:—</p> <p>By the 6th section of the charter of the city it is provided that “ there shall be a court of common council of said city, to consist of two separate branches, a board of aldermen, and the common council board, who shall convene and act separately.” The 7th section of the charter confers upon the court of common council “ exclusive power to lay out and establish, within the corporate limits of said city of Hartford, new highways, streets, &c., whenever they deem it for the public good so to do.” It then proceeds as follows:—“ And whenever any public work shall have been lawfully laid out by said court of common council, said court may assess a proportionate sum of the expense of laying out and making such public work, upon any person or persons specially benefited thereby, and estimate the just proportion of such expense which such person should defray, and enforce the collection of the same; provided always, that before taking any land or private property for the public use aforesaid, said court shall agree with the owner or owners thereof as to the damage done thereby, or shall cause a fair appraisal thereof and just compensation therefor to be made to the owner or owners thereof, by payment or deposit of such damages or compensation for the benefit of such owner or owners; and provided further, that it shall be the duty of said court to enact ordinances containing suitable provision for giving notice to all persons interested in a,ny property so taken of the proceedings of said court in that behalf, and of the appraisal of damages ; and provided further, that an appeal shall be allowed to any person aggrieved by an appraisal of damages or assessment of betterments to any judge of the superior court, within sixty days after public notice shall be given of such appraisal or assessment, which appeal shall be a suitable petition in writing for a re-appraisal or re-assessment, with a citation attached thereto, and returnable in not less than eight nor more than twelve days after its date, and served at least five days before the return day upon the city clerk; and said judge shall have, for the purpose of disposing of said appeal, all the powers of the superior court, and may proceed by committee, jury or otherwise, to re-assess said damages or benefits, and give judgment accordingly ; and if said damages are increased, or said assessment of benefits is reduced, award costs against said city; and if the said damages are not increased, or if said assessment of benefits is not reduced, award costs against the appellants ; and shall in all cases issue execution if necessary, in favor of said city, for the amount of damages or benefits fixed by said re-assessments, and in favor of either party for costs, to be taxed as upon civil process in the superior court.”</p> <p>By the 8th section of the charter it is provided that “ the court of common council shall have power, by a majority of the members of each branch, present and absent, subject to the approval or disapproval of the mayor, to make, alter and repeal ordinances, for the following purposes ; viz.:—For the laying out, altering, establishing and making highways; * * to provide forms of oaths for all officers of said city elected by city meeting, or appointed by the court of common council; * * to provide that assessments of benefits for any public work shall be a lien upon the land or real estate on account of which such assessment is made, which lien may be foreclosed at the suit of the city, in the same manner as a mortgage incumbrance; * * to prescribe oaths of city officers, and to authorize the mayor to administer oaths in all courts; * * to prescribe the forms of proceeding in all cases of taking lands for public use within said city not specially prescribed in this act; and to carry out all the powers conferred and duties imposed on said court by the 7tli section of this act.”</p> <p>Pursuant to the authority thus conferred, the court of common council afterwards passed the following ordinances, which during the pendency of the proceedings in this cause were in full force, to wit:</p> <p>Seo. 1. [Providing for notice to all parties interested, of the laying out of any new highway or street and for the filing of objections with the clerk.]</p> <p>Sec. 2. “ The court of common council, by a concurrent vote of both boards, shall annually appoint a street commissioner and a city surveyor, who may or may not be members of said court, and shall hold office during its pleasure. The board of aldermen shall choose three members thereof, residing in different wards, and the common council board shall choose from their own number one member from each of the remaining wards, which persons so chosen shall, with the street commissioner as chairman, constitute the highway committee of the court of common council, and shall hold office during its pleasure ; and a majority of said committee shall have power to act in all matters within the authority of said committee. Said court shall also appoint, by concurrent vote, commissioners of compensation, one from each ward of the city, who shall be freeholders and not members of said court, and who shall severally hold office during the pleasure thereof, and shall be sworn to the faithful and impartial discharge of their official duty; and said commission, so constituted, shall appraise all land-damages in cases where land is required for city improvements and can not be obtained by agreement with the owners.”</p> <p>Sec. 3. “ Whenever any vote or resolution of the kind specified in the first section of this ordinance shall have been duly published, and it shall be necessary to take land, or any interest therein, belonging to private owners, for the improvement contemplated by such vote or resolution, the court of common council, before otherwise carrying the same into effect, shall, unless they obtain such land by voluntary dedication from the owners thereof, refer the subject-matter of the contemplated improvement to said highway committee, who shall thereupon, in behalf of said court of common council, proceed as follows:—Said committee shall obtain from the city surveyor a map or drawing explanatory of the contemplated improvement, and shall then agree if possible with the owners whose land may be required for such improvement, as to the compensation to be made therefor, and secure from such owners proper evidence of such agreement. If said committee fail to agree with any owner they shall thereupon make oral application to the compensation commissioners for the appraisal of damages accruing to such owner by the establishment of such improvement; and after such appraisal is made shall obtain from said commission a certificate of its doings, and, as soon as may be, cause the same to be published in two or more daily newspapers issued in the city of Hartford, and the original certificate lodged with the city clerk. If, within sixty days after such publication, any person shall appeal from the appraisal of damages made as aforesaid to a judge of the Superior Court, said highway committee shall instruct and aid the city attorney in respect to the matter of said appeal until the same shall be determined. If all persons who are entitled to compensation shall agree upon the amount thereof, or shall,at any time within said sixty days deliver a written waiver of their right of appeal to said committee, said committee shall immediately make their report to the common council. If an appeal shall be taken said committee shall make their report as soon as practicable after final judgment upon all such appeals. Their report shall set forth the amount of damages agreed upon with each owner, their application to the compensation commission, a certificate of the doings of such commission, an account of the appeals taken or waived, and of the result of all such appeals by judgment of the judge of the superior court; to the end that all damages thus ascertained may become a part of the expense to be assessed upon persons specially benefited by the improvement. * * *</p> <p>Sec. 4. “ The commissioners of compensation, when applied to by the highway committee for an appraisal, shall cause public notice in two or more newspapers issued within the city, to be given of a time and place where owners of land, whose damages are to be appraised, may be heard relative to the amount of such damages ; at which time and place the highway committee may also appear and be heard relative to the same matter. At the time and place named in such notice said commissioners shall proceed to hear and determine the amount of damages accruing to such owner from the establishment of the improvement in question, and for that purpose may examine witnesses under oath, and may consider in estimating such damages, the amount of benefit accruing to the owner from such improvement, and deduct the amount of benefit from the gross amount of damages ; and if the benefit, in their opinion, exceeds the injury, shall certify that no damage is due to such owner on account of said improvement. And said commissioners, a majority of whom shall have power to act, shall make a certificate of their proceedings, and furnish the same to the highway, committee as soon as may be. If more than two of said commissioners shall be disqualified to act, the place or places of such may be supplied by the mayor.”</p> <p>Sec. 5. “ The vote or ordinance establishing or discontinuing any highway or street in the city of Hartford, and every survey of any new highway or street approved by the highway committee and court of common council, shall be recorded in the city highway record book, kept for that purpose by the city clerk.”</p> <p>Sec. 6. “ Whenever any of the public improvements specified in the first section of this ordinance shall have been established and laid out by the proceedings of the court of common council, and the same shall also, in cases where making or construction is required, be made and constructed, said court of common council shall proceed to assess a proportional sum of the expense of laying out or altering, or of laying out and making such public work, upon any person or persons, private or corporate, (including railroad corporations occupying streets or parts of streets with their tracks,) who may, in the judgment of said court, be specially benefited thereby, and shall proceed as follows: said court shall refer said matter, with or without instructions, to the highway committee, who shall thereupon proceed to make inquiry as to the just proportion of such expense which each such person should defray, and make out a proper written schedule of their estimates, with names and amounts ; and, when the same shall be completed, shall cause the same to be published in two or more newspapers issued within the city of Hartford, together with a notice, attached to such schedule, that any person aggrieved may, within ten days after the day of the first publication of such notice, lodge with the street commissioner a written statement of his objections to the estimates of said committee. At the end of said ten days said committee shall receive said statements from the commissioner, and shall proceed to revise their said estimates in view of the objections stated, and after such revision shall report their final estimate to the court of common council, together with the written statements of objections. The court shall thereupon proceed to make such assessment upon persons benefited by said improvement as shall seem to them just; and, after the same is completed, shall cause public notice of the same to be given by publication in two or more newspapers issued in- the city of Hartford.” * * *</p> <p>Sec. 7. * * * “ All assessments for all such public works or improvements shall be deemed to be made on account of the land or real estate adjoining the place or location of such improvements, or of such land or real estate of any person or persons against whom such assessment is made as may be within reasonable vicinity to such improvement.”</p> <p>The foregoing ordinance was passed on the 11th of July, 1860. The following was passed on the 2-'sd of April, 1860.</p> <p>Sec. 3. “ Commissioners of compensation, and appraisers of damages, shall be sworn justly and truly to estimate and appraise all the damages by them to be appraised, during their continuance in office, according to their best and honest judgment; and certificates, on a record of such oath, shall be made according to the requirements of the first section of this ordinance.”</p> <p>On the 4th of June, 1863, sundry inhabitants of the city of Hartford brought their petition to the court of common council, praying for the widening, straightening, grading and improving of the street known as Rifle Avenue, and for the laying out of a new highway or street, contiguous to, and in part over, and as a substitute for, Rifle Avenue ; which petition was subsequently, on the 22d day of June, 1863, referred by the court of common council to the highway committee; and Vm. M. Charter, street commissioner and ex-officio chairman of the highway committee, on the 13th of July, 1863, submitted to the court of common council a report in favor of the improvement, with a resolution to lay out a new street as a substitute for Rifle Avenue. The court of common council on the same day made the following order:—</p> <p>“ Ordered, That the foregoing resolution be published in two daily newspapers issued in the city of Hartford, attested by the clerk of each branch to be pending in this court, together with a notice appended to such resolution as published to all persons to file a written statement of their objections, if any they have, with the city clerk, within ten days from the day of the first publication of said notice inclusive.”</p> <p>The foregoing order was duly published as therein prescribed, but whether the officers of Trinity College filed with the city clerk a written statement of their objections within the time prescribed in the order, or at any time, did not appear. On the 10th of August, 1863, the foregoing resolution was adopted in both branches of the court of common council, and on the succeeding day was approved by the mayor of the city. After the passage of the resolution Mr. Charter, street commissioner and chairman of the highway committee, obtained from the city surveyor a map explanatory of the proposed new highway, and made application to Mr. Eliot, President, and Mr. Belknap, Treasurer of the college, which corporation were the owners in fee of the lands described in the petition, and over which the new highway was in part proposed to be laid, to agree as> to the compensation which the .corporation should receive in damages for the laying out and establishment of the highway ; but both Mr. Eliot and Mr. Belknap replied that they were not authorized themselves to agree for the corporation, and knew of no one who was so authorized, and that the city must take the legal measures in the premises. Neither the highway committee nor Mr. Charter made any other application to Trinity College, or its trustees or officers, for such agreement, and no vote of refusal was passed by the trustees or by the corporation on the subject, and no corporate action in the premises was by them taken; but the said Eliot and Belknap, and Isaac Toucey, Esq., one of the board of trustees, subsequently appeared before the commissioners of compensation, at their meeting duly notified and held on the subject of the assessment of damages to Trinity College and others on account of the proposed highway, and had an opportunity to be heard upon the question of damages, and protested against the laying out and establishment of the highway on the route proposed. Mr. Charter afterward made oral application to Nathaniel H. Morgan, Esq., chairman and clerk at that time of the board of compensation commissioners, for the appraisal of damages accruing to Trinity College by the establishment of the highway ; but no vote or resolution had been or was at any time passed by the highway committee, to the effect that they had made an effort, and were unable to agree with the college, or any officer or agent of the college, with reference to the question of damages, and no record of any kind was at any time made by the highway committee respecting the laying out or establishment of the proposed highway, and the highway committee were accustomed to keep no record of their official proceedings.</p> <p>Upon full hearing and consideration the board of compensation commissioners estimated the damages accruing to Trinity College by the establishment of the highway at five hundred dollars over the benefits which would in their judgment accrue from the same to the college, and delivered to Mr. Charter a certificate of their doings in the premises, which he caused to be published in two daily newspapers issued in the city of Hartford, and lodged the original certificate with the city clerk.</p> <p>The highway committee and the commissioners of compensation, for the time involved in this proceeding, were in fact appointed in the mode and possessed the qualifications required by the charter of the city. The highway committee were one half members of each branch of the court of common council, and resided one in each ward of the city. The commissioners of compensation also resided one in each ward, and were freeholders, and not members of the court of common council. Four of them were proved by the record to have been duly sworn. The other two held over from the preceding year, and with respect to them it did not appear whether or not they were sworn, or whether a certificate that any of the members of the board had been sworn was lodged with the city clerk as required by one of the ordinances of the city. Each branch of the court of common council has a clerk, and keeps a record of its proceedings, but it did not appear from their records, or from any record, that the commissioners of compensation were freeholders, or that they resided one in each ward of the city, or that they were not members of the court of common council. Neither did it appear from the records of the compensation commissioners, or from any record, that the board fixed a time and place for a hearing upon the question of damages to Trinity College by the laying out and establishment of the proposed highway, nor that the members of the highway committee resided one in each ward of the city, and were one half members of each branch of the court of common council.</p> <p>The highway committee was not convened, and its members did not meet, to consider the petition for the proposed highway, nor make the report nor pass the resolution hereinbefore stated for the laying out and establishment of the same, or any vote or resolution, or take any action on the subject; but all the acts were done by the street commissioner without the actual concurrence of or any consultation with the highway committee, but were done by him for and in the name of the committee, and in pursuance of a general understanding on his part that those acts and duties should in such cases be performed by him.</p> <p>The lands belonging to Trinity College affected by the laying out of the proposed highway are situated on both sides of Rifle Avenue, and consist of a dwelling house and lot occupied by Professor Bi’ocklesby on the south side of the avenue at its intersection with Washington street, which lot extends westerly along the avenue about 100 feet. The south line of the proposed highway cuts this lot from Washington street westerly its whole depth, and passes over the site now occupied by the dwelling house. The remaining lands are on the northerly side of, and bounded on the avenue, and extend westerly from "Washington street along the north line of the avenue about 1000 feet, being all in one body or tract, (though obtained under two different purchases,) except as it is divided by fences into several distinct enclosures. The highway is also laid over the lands of other persons lying west of the college lands. The commissioners of compensation estimated the gross damages to Trinity College at $8,500, and also estimated the benefits the college would receive from the establishment of the highway at $8000, and deducted this sum from the estimated damages. In their assessment of damages it did not appear upon what principle they proceeded. But the committee agreed upon by the parties after the appeal by the college, as hereinafter stated, and the judge of the superior court to whom the appeal was taken, and to whom the committee made report, proceeded upon the principles stated in the record of their proceedings as hereinafter set forth.</p> <p>Afterwards, within sixty days after the appraisal of damages, on the 19th of October, 1863, the trustees of Trinity College appealed from the decision of the board of compensation commissioners in making their appraisal of damages to Hon. Henry Dutton, one of the judges of the superior-court, who appointed Loren P. Waldo, Esq., a committee to reassess the damages and make report. The committee having fully heard the parties made the following report:—</p> <p>“ That he met the parties by agreement at the office of the street commissioner on &c., when and where he heard them with their evidence and counsel, and having duly considered the same, finds and determines that the damages accruing to the trustees of Trinity College, the appellants, from the establishment of the new street, over and above the benefits accruing to them from the improvement, amount to the sum of five hundred dollars, being the same sum at which the damages were assessed by the commissioners of compensation. And the committee would further report, that on the trial of said appeal the parties admitted and agreed that said new street extended from Lafayette street westward to Park river, a distance of 3,314 feet, and over lands of other proprietors as well as land of the appellants ; that the laying out, opening and making said street would increase the value of the real estate generally in its vicinity; and that the length of the street upon the land of the -appellants is about 1,000 feet. The only damage claimed by the appellants was for taking a portion of their front on Lafayette street, and extending westward from Lafayette street about three hundred and fifty feet; and for so dividing their land on the west side thereof for a distance of about one hundred and fifty feet eastward from their west line, as to render it comparatively valueless for building lots. The appellees insisted that the value of the appellants’ land between the above-mentioned points was greatly increased by the establishment of the new street, and they offered the testimony of several witnesses to show that the market value of this portion of the land was very materially enhanced thereby. To the admission of this evidence the appellants objected on the ground that the same was irrelevant, and insisted that it was not competent for the committee to consider any benefits accruing to the appellants from the establishment of the street to be enjoyed by the college in common with the citizens of the state at large, or of the city, or by the owners of land within the district required by the city ordinances to be taxed for the expense of opening and making the street; that the committee was only to estimate the damages which it occasioned them, deducting therefrom only such benefits as were local to the appellants’ land and peculiar to the land and to the college, and such as were direct and immediate and caused by the very taking of the land. The committee believing that the true damages to the appellants could only be ascertained by taking into consideration the special and peculiar benefits derived from the new street, admitted the evidence for the purpose of enabling him to determine how much the whole tract of land belonging to the appellants over which the street was laid, was injured in value from the establishment of the new street. And in coming to the result above named, the committee deducted the enhanced value of the appellants’ land accruing from the establishment of the new street, ascertained as aforesaid, from the damages to the same land otherwise resulting from the improvement.”</p> <p>The appellants filed a remonstrance against the acceptance of this report, and a hearing was had on the same before Judge Dutton, who overruled the remonstrance, accepted the report, and rendered judgment awarding $500 damages to the appellants, and costs in favor of the city. The appellants thereupon filed the following statement of exceptions, made and allowed by the judge in the form of a motion for a new trial, which was reserved by the judge for the advice of the supreme court.</p> <p>“ Upon the hearing of the remonstrance to the acceptance of the report of the committee, it appeared by the report and otherwise, that the new street was laid out 50 feet wide from La Fayette street to Park river, in part over and in lieu of Rifle avenue, so called, an open passway which had never been laid out or accepted as a highway ; that the easterly end of said new street, commencing at La Fayette street, was laid over a lot or tract of land of the appellants, leaving land of the appellants of the width of 100 feet or more on each side of said new street suitable for building lots, and giving increased facilities of access to the rear of said tract of the appellants; that said new street was also laid over the lands of other proprietors, giving to them also suitable fronts for building lots and greater convenience of access to their lands; that by the laying out of said new street the land of the appellants and the land of said other proprietors were made of greater marketable value, in some instances of such other proprietors to a large amount, and in the case of the appellants to an amount equal to the damage done to them by laying out the new street, except five hundred dollars; and that said committee in re-assessing said damages deducted said increase of value from what would otherwise have been the value of the land so taken, contrary to the objection of the appellants; but that the increase of value so deducted by said committee was not to any extent owing to any general increase of value to the lands lying on or in the vicinity of said new street, including the land of the appellants, by reason of the laying out of the same. The appellants on the hearing of said remonstrance claimed that the benefits so set off and deducted by said committee from the damages arising from taking their land, were not the local, particular and direct advantages which could by law be set off or applied to the damages arising from taking the land, and that such action of the committee ought not to be approved and adopted by me; but being of opinion that inasmuch as the appellants’ land was only a single tract, and the benefits which were set off resulted merely from the change of condition of this tract by the laying out of the street, making portions of it more accessible and more saleable, these benefits were the direct, local and particular benefits which may be by law set off, I overruled the objection, and approved and adopted the action of the committee, and re-assessed the damages at five hundred dollars. The appellants further claimed that by the charter of the city, to which reference is to be had, no benefits of this kind or resulting from this cause could be assessed by the committee, whose duty it was to assess damages; that the damages ought to be assessed by one committee and the benefits subsequently by another, and that in assessing the damages no regard could be had to these benefits; and they objected to the acceptance of the report on the ground that, in ascertaining the true amount of the damages which they had sustained, the committee had taken into consideration the benefits which had accrued in this manner to the land. But I overruled this objection, and approved and adopted the proceedings of the committee. The petitioners, feeling aggrieved by the decisions aforesaid, move for a new trial, by virtue of the clause in the 7th section of the charter of said city, in which it is provided, with reference to the assessment of damages and benefits in laying out streets, that “ an appeal shall be allowed to any person aggrieved by an appraisal of damages or an assessment of betterments to any Judge of the Superior Court,” and that “ said judge shall have, for the purpose of disposing of said appeal, all the powers of the superior court, and may proceed by committee, jury, or otherwise, to reassess said damages or benefits, and give judgment accordingly.” Which motion is allowed, and reserved with stay of execution for the advice of the Supreme Court of Errors, in Hartford county at its next session, subject to the decision of said court whether the same can be entertained. Dutton, J.”</p> <p>The supreme court refused to entertain the motion for a new trial and dismissed the same.*</p> <p>After the conclusion, of the above legal proceedings, Joseph Pratt, then street commissioner, made a final report for the highway committee, to the court of common council, stating the previous proceedings in the case, and recommending the adoption of sundry resolutions for the laying out and establishing of the highway, directing the city auditor to draw an order on the city treasurer in favor oí the trustees of Trinity college for the sum of $500, and to deposit the same with the city treasurer subject to the order of said trustees, establishing the grade of the highway and directing the street commissioner upon such payment or deposit to open the highway, and remove all obstructions from, and grade and complete the same for public use; which report was accepted and resolutions adopted by the court of common council on the 22d day of August, 1864, and on the same day approved by the mayor of the city.</p> <p>Upon these facts the case was reserved for the advice of this court as to what decree should be passed.</p> <p>First.—The commissioners of compensation, and Judge Dutton, exceeded their jurisdiction by taking into consideration benefits of a general character in awarding damages.</p> <p>1. This is a question of great importance and one never before raised in this court. It arises under the modern system styled the “ assessment of benefits,” by which the expense of building a road or street is imposed, not upon the state or town at large, but upon the owners of lands which are “ specially benefitted,” to wit, lands “ adjoining ” or “ within reasonable distance.” City ordinance, sec. 7. Our system was derived from that of New York. A slight change has however been introduced in respect to one of the details. This change has led our city officials into a gross error, as we shall show. In New York all “ damages ” are paid in money or its equivalent, all “ benefits ” are taxed irrespective of ownership. If the same person is allowed damage, and also receives benefit, his tax upon the latter is set off, and the tax only. But here the gross benefit is set off, irrespective of what others get, or the tax they are required to pay, or our own fair proportion. (1.) The practice here violates the charter and ordinances. (2.) It is unequal taxation, such as could not have been intended by the legislature. (8.) It is not “just ” compensation. It is exactly the case where the doctrine of general average should apply. The property of one is destroyed for the benefit of a class, himself included. No compensation can be just which ignores that doctrine. (4.) If we owned no land other than that taken we would be paid in full. If we owned only the land benefitted we would pay only a tax. This mere accident of ownership is to save money to the other land owners. This is an absurdity never intended. The intention of the system is that all damage and expenses shall constitute one fund, all benefits another, the latter to be taxed in equal proportion to pay the other. The present committee are appointed to estimate damages only. A future committee are to ascertain the other expenses, and the benefits, and to tax the latter. In New York one and the same committee do all this at once and beforehand. They can thus ascertain the tax. Our committee can not. Our city officials have disregarded this difference in the two systems.</p> <p>2. In New York and other places where this system prevails, the tax, or proportion of benefit which is thus deducted, is often styled “benefit.” Our city authorities mistake the meaning of that word as thus used, and understand it to mean gross benefit. Our opponents claim that the case of Nichols v. Bridgeport, 23 Conn., 189, sustains their practice. The court in that case meant to decide only that the assessment or proportion of benefit could be deducted. This is evident from the cases cited, all of which were cases of an assessment, not gross benefit. The same thing is evident from the language used by Hinman, J., who delivered the opinion of the court. See pp. 204, 5, 6. This case has been construed by an able text-writer, as holding that an assessment, the tax, may be deducted. Sedgw. Const. Law, 503. The court apply the phrase “ local and peculiar ” to this assessment of benefit, using that term, however, in a different sense from what it has elsewhere, as we shall hereafter show.</p> <p>3. In order to understand what is the meaning of the terms “ benefitted,” “ specially benefitted,” &c.,we must look at them from the stand-point of the political economist. The matter is one relating not to mere law, but to public policy and economy. (1.) A road benefits lands, or individuals in respect of lands. It sets the lands up nearer together. It saves the occupants distance, time, expense. In view of this saving the land rises in market value. Lands, like stocks, are valuable according to what they will produce. To save time and expense in travel and transportation is to increase the clear annual income. Every $6 thus saved per annum adds ¡$100 to the market value. The same rule applies to streets. This is the philosophy of our increase of value. (2.) The whole state is benefitted by the increase of capital thus caused. It will add to the taxable fund of the state, increasing its power, diminishing taxes to others. (3.) Every governmental enterprise tending to increase capital lying within the state “ specially benefits ” him whose private capital is increased. Roads, canals, bridges, ferries, &c., create capital by adding to the clear product of the lands accommodated. Drainage acts do the same. Flowage acts add to the capital, not particularly of the mill owner, but of the owners of land in its vicinity. These enterprises raise the general level of capital all over the state, but, as it were, elevate a certain district above the rest by a special benefit. (4.) The state may open roads and has the eminent domain. For convenience it entrusts this duty and power to the towns and cities. They act simply as the agents of the state at large. (5.) Ordinary governmental expenses are paid by taxes laid upon property generally, each kind being taxed as nearly as may be in proportion to the benefit it derives from the government and its protection. Extraordinary expenses, such as that of opening a road, resulting in special benefit, should be paid out of that benefit. All property specially benefitted should of course contribute in equal proportion. (6.) Our damage consists in the taking of private capital from us for the public good. Our benefit is not a part of our damage, not a mitigation of damage, but a distinct, independent thing. Our damage is immediate, direct, sounding in tort; our benefit is speculative, prospective, dubious, sounding in contract. Our damage is the being thrust out from a strip of land, prevented from using it for buildings or business; our benefit is the right to travel over that land in common with all other citizens, and is our share of the public good. (7.) A government enterprise producing benefit to individuals within a limited district creates no debt to the state. As in a partnership, the act of all is the act of each, and such benefit is the result of one’s own enterprise, one’s own earning. (8.) It is no debt as against others. Our rights are equal to theirs. (Const., Art. I, sec. 1.) Suppose twenty neighboring farmers unite to build a bridge. They become partners quoad the bridge. So do the citizens of the state in respect to a public road. It is a public investment. Suppose A’s farm is benefitted, say $100. That creates no “ debt ” against him. Suppose material, say plank for the flooring, were purchased from him worth $100. His benefit could not be set off against the price. The same principle applies in our case. Our land taken is but material. A’s tax or proportion of the expense of the bridge might when ascertained be set off. So may our tax. But it is not and can not yet be ascertained. To consider our gross benefit is to make a debt of it, and to set off that debt against the one due to us. (9.) In the case of a railroad or canal the deduction of benefit is wrong. It saves outlay of capital and lowers the rate of tolls, thus saving annual expense to land-holders who use the road and save time by it. General average requires the land to be paid for, and tolls laid accordingly, so that all shall contribute. (10.) What lands will save distance by a road is matter of simple measurement. In case of a new road or street laid parallel to an old one all lands lying short of half way will save. • In New York the riile of law is to tax lands so lying. Our system has no such inflexible rule, but the principle is the same, to wit, to tax all “ benefits.” Benefit from a street is but another name for saving of distance.</p> <p>4. This deduction of benefit has been condemned in almost every state in the union, our own included. Our opponents seek to avoid the force of the decisions by the most fallacious and distorted readings. James River & Kanawa Co. v. Turner, 9 Leigh, 313. This is a leading case. The Canal Co. insisted that Turner’s “ benefit ” should be considered. That benefit consisted in the increase in value of his adjoining land. That increase was caused by the prospective saving of annual expense in travel and transportation to be afforded by the canal. The court held that such increase could not be considered. The reasons given are the same as those we have urged. Woodfolk v. Nashville & Chattanooga R. R. Co., 2 Swan, 422; Meacham v. Fitchburgh R. R. Co., 4 Cush., 291; State v. Miller, 3 Zabr., 383; Carpenter v. Landaff, 42 N. Hamp., 218. The same rule has been established in our own state, in Nicholson v. N. York & N. Haven R. R. Co., 22 Conn., 78. Nicholson’s land, in common with the rest of the city, was, by means of the railroad, set up nearer to New York and intermediate localities. All the lands in the city were enhanced in value by the same process. It was a benefit of a general character. The jury were instructed not to consider advantages of a general character, and they did not consider Nicholson’s increase of value; and the supreme court held this to be right. Dickinson v. Inhabitants of Fitchburgh, 13 Gray, 546; Palmer Co. v. Ferrill, 17 Pick., 58; Upton v. So. Reading Branch R. R. Co., 8 Cush., 600; Petition of Mt. Washington Road Co., 35 N. Hamp., 134; Isom v. Mississippi Central R. R. Co., 36 Miss., 300; Milwaukie & Mississippi R. R. Co. v. Eble, 4 Chand. (Wis.) 72, 83; Garret v. City of St. Louis, 25 Misso., 505; Porter v. North Missouri R. R. Co., 33 id., 128; Boston & Maine R. R. Co. v. County of Middlesex, 1 Allen, 324; Meacham v. Fitchburgh R. R. Co., 4 Cush., 291.</p> <p>5. The city ordinance, sec. 4th,directs that “benefit” may be considered. There is a kind of benefit possible to accrue from opening a road which may be considered and to which the word as here used must be confined. None such exists, however, in our case. (1.) The benefit to which we allude is any peculiar one ; one distinct from that of the saving of distance, time, and expense in travel; drainage, for example. Such a benefit is not the political or public one which the state intended. In Nicholson’s case the court apply the term “ local and peculiar ” to such benefit. The benefit to be considered must be peculiar, not in the sense of ownership, but as contrasted with that received by others generally, received in a different way. Our benefit is not a peculiar one in any sense. It is confessedly the same as that received by all the lands along the line of this street, and is therefore a benefit of “ a general character.” But whatever name is given to it, to deduct it is unjust and unequal; the very evil the cases seek to avoid. (2.) The “ damages ” to be allowed us would be by law confined to direct and immediate ones. Clark v. Saybrook, 21 Conn., 322. The word “ benefit,” used in this section, must be confined in like manner. But our increase of value is remote, speculative, prospective, dubious. It arises in view of supposed future gains from rents, &c. This supposition may turn out an erroneous one. (3.) The commissioners of compensation are authorized only to estimate damage. They are like a committee appointed, in the case we have supposed of the twenty farmers, simply to estimate the value of the materials taken from A; and this before the bridge is built, or the expense or total benefit ascertained, or the proportion to be paid by each. They can not anticipate and estimate the general benefit which is to be the basis of taxation.</p> <p>6. A court of equity should interfere to correct this error of law by enjoining all proceedings, and perhaps ordering a new estimate of damages. Lawton v. Commissioners of Cambridge, 2 Caines, 179, 182; Birley v. Constables of Charlton, 3 Beav., 499; Penrice v. Wallis, 37 Miss., 172; Baldwin v. City of Buffalo, 29 Barb., 396; Ragatz v. City of Dubuque, 4 Iowa, 343; Caldwell on Arb., 140, 144; 2 Story’s Eq. Jur., §§ 1455, 6; Doty v. Judson, 2 Root, 427; Lee v. Patillo, 4 Leigh, 436; Fitch v. Ayer, 2 Conn., 143, 147; Wells v. Bridgeport Hydraulic Co., 30 id., 316. An action of trespass could not be sustained by us at law, as this error does not appear upon the face of the proceedings.</p> <p>Second. The city authorities have not acquired the legal right to take our land, and their doing so would be a wrong.</p> <p>1. The charter and ordinances empower them to take land only when certain specific facts and. circumstances exist; and the only evidence allowed by law to prove that such facts do exist is the finding or recital thereof by record, by a proper officer or tribunal. In the present case such findings or recitals are fatally deficient. (1.) There is no finding by the court of common council that the persons composing the highway committee in 1863 were residents of different wards. That court was the proper tribunal to find this fact. Its finding could only be by its record, as it speaks only by that. That finding is the only evidence allowed by law. This is a rule of evidence adopted from the earliest period for wise ends. There being no such evidence the case stands as if the fact did not exist, and the requirements of the statutes are not complied with. This being a special statutory.power every requirement must be strictly pursued. Huntington v. Birch, 12 Conn., 150; Potwine’s Appeal, 31 id., 383; Rex v. Inhabitants of Hulcott, 6 T. R., 583, 7; Rex v. Inhabitants of Chilverscoton, 8 id., 178; Rex v. Inhabitants of Moor Critchell, 2 East, 66; Regina v. Parish of St. George, 28 Eng. L. & Eq., 300. (2.) There is no finding that the commissioners of compensation were residents of different wards. (3.) Nor that they were freeholders. In Nichols v. Bridgeport, 23 Conn., 189, this defect was held (by the majority of the court,) to be cured by the fact that a subsequent committee had acted. No such committee has acted here. In Judson v. Bridgeport, 25 Conn., 426, the defect was held to be fatal. See also State v. Jersey City, 1 Dutch., 309; Williams v. Holmes, 2 Wisc., 129, 144. (4.) The very organization of this commission, a standing committee, is not warranted by the charter, and is wholly void. State v. City of Hudson, 5 Dutch., 104, 109. The city having thus failed to comply with the law, its entry upon our land would be a trespass ; its remaining there a nuisance ; and the entry of every traveler would be a trespass. Our injury could not be compensated in damages; endless litigation would ensue. In such cases equity will interfere, as is well established.</p> <p>1. By the charter of the city the power .of laying out streets and of assessing damages to the owners of land taken for such streets, is conferred on the common council exclusively, with provision for an appeal to be taken from such assessment by any party aggrieved to a judge of the superior court. City charter, sec. 7. In this case this power has been exercised by the court of common council, and all the steps provided in the charter, including the appeal, have been taken. The question of damages has then become res adjudicada; and the superior court, as a court of chancery, will not review'the proceedings. Hood v. N. York & N. Haven R. R. Co., 23 Conn., 609; LeRoy v. City of New York, 4 Johns. Ch., 352; Alexander v. City of Baltimore, 5 Gill, 383.</p> <p>2. If the question were an open one, the principles on which the committee and the judge to whom the appeal was taken proceeded, are correct. Clark v. Saybrook, 21 Conn., 321; Nicholson v. N. York & N. Haven R. R. Co., 22 id., 74; Nichols v. Bridgeport, 23 id., 189; Commonwealth v. Coombs, 2 Mass., 489; Commonwealth v. Sessions of Norfolk, 5 id., 438; White v. Commissioners of Norfolk, 2 Cush., 361; Meacham v. Fitchburg R. R. Co., 4 id., 291; Upton v. So. Reading Branch R. R. Co., 8 id., 600; Shaw v. City of Charlestown, 2 Gray, 107; Dickinson v. Inhabitants of Fitchburg, 13 id., 546; Livingston v. City of New York, 8 Wend., 85; Betts v. City of Williamsburg, 15 Barb., 255; The People v. City of Brooklyn, 4 Comst., 420; McMasters v. The Commonwealth, 3 Watts, 292; Symonds v. City of Cincinnati, 14 Ohio S. R., 147; Alexander v. City of Baltimore, 5 Gill, 383; Livermore v. Jamaica, 23 Verm., 361.</p> <p>3. The proceedings in laying out this street are not,invalid because the highway committee or the board of commissioners of compensation appointed by the common council have not literally performed the duties assigned them, or because there is no record of their doings. These committees were not required by any statute law or by the charter of the city. Their acts were of no validity in and of themselves. They reported their doings to the court of common council, and when adopted and approved by that court they became valid and binding, not as the acts of the committees, but as acts of the common council. Sower v. City of Philadelphia, 35 Penn. S. R., 231; Preble v. City of Portland, 45 Maine, 241; Nichols v. Bridgeport, 23 Conn., 189, 213. The duties of the highway committee were merely ministerial, and no record of their doings is required. Nichols v. Bridgeport, 23 Conn., 212; Williams v. Hartford & N. Haven R. R. Co., 13 id., 397, 410. The board of commissioners of compensation were not appointed under any statute law, or under any provision in the charter, and are unlike appraisers appointed under a provision of public law requiring persons of certain qualifications to be appointed in each case. The court of common council which established this board may at their pleasure change the qualifications required of its members or abolish the board altogether, their duty only requiring them to cause a fair appraisal to be made. They are a board of officers-to act in all cases while they continue. in office, and their eligibility and qualifications will be presumed from the fact of their election and their acting as such officei’s, and can, not be questioned in a collateral proceeding. Patterson v. Miller, 2 Met. (Ky.,) 493; Stokes v. Kirkpatrick, 1 id., 138; Plymouth v. Painter, 17 Conn., 585, 592; Ang. & Ames on Corp., §§ 139, 140, 287.</p>

<p>Executors and trustees, by bill in the nature of a bill of interpleader, may take the advice of a court of chancery upon questions connected with the discharge of their duties.</p> <p>The interposition of the court in such cases is discretionary, and will not be exercised except in matters of importance.</p> <p>The testator gave to Amasa his son “ the sum of $90,000, which sum is to be made up of his notes, drafts, &c., which will he found sealed up and among my papers and directed to him, to be delivered to him by the executors in discharge of this bequest.” There was found among the testator’s papers a package sealed and directed in the hand-writing of the testator thus:—“ Eor Amasa Mason— notes, drafts, &c., to make up the sum of $90,000 devised to him in my will.” The package on being opened was found to contain notes, drafts, &e., against Amasa, for $90,281. Among the papers of the deceased, but not in the package, was a note against Amasa for $33,000 and interest, of a date anterior to the will, also a book account of $6,000, mostly prior to the date of the will. A memorandum in the hand-writing of the deceased, and his declarations, also a paper signed by Amasa, were offered in evidence to show that the $33,000 note and the $6,000 account were not intended to be included among the notes and drafts to be delivered to Amasa by the executors in discharge of the $90,000 bequest. Held, that this evidence was inadmissible.</p> <p>Held also, that the fact of finding among the papers of the deceased the package answering the description in the will, the superscription on the package, and its contents, were all proper and admissible evidence for the purpose of identification.</p> <p>Held also, that by the terms of the will in connection with this evidence, such notes and drafts only as were found in the package were to be delivered to Amasa by the executors in discharge of the bequest.</p> <p>Interest is not chargeable upon book debts except by virtue of special custom or agreement. Held therefore, in the absence of all proof on the subject, that the book debt above named did not bear interest.</p> <p>The will provided, in the event of payments thereafter made by reason of certain supposed liabilities, “ whether the same be paid upon judgment recovered or by compromise,” that one-fifth of the sums so to be paid be charged to his son. On these liabilities suits were brought and large sums properly and judiciously expended by the executors in defending against them. Held, that no part of these expenses of suit could under the will be charged to the son.</p>

<p>The plaintiff had worked for his mother, the defendant’s intestate, upon a farmp under an agreement by which he was to receive his board and clothing, and an-additional compensation in money. The parties were at issue as to what the money part of the compensation was to have been, and the defendant offered in evidence declarations made by the intestate to a third person while she was purchasing clothing, that she was purchasing it for the plaintiff, and that she was to give him for his work on the farm his board and clothing and $100 per year. Held, that her declarations were admissible ouly so far as they explained her act, and that therefore all was inadmissible except her declaration that she was purchasing the clothing for .the plaintiff under her contract.</p> <p>Where there are circumstances which create a strong suspicion against an account upon which a suit is brought, there is yet no rule of law which forbids the jury to find a verdict for the plaintiff on his own testimony alone.</p>

<p>Where the owner of land has been dispossessed, a mere casual or stealthy entry by him does not disturb the adverse possession of the disseizor. His entry must be intended as an act of possession.</p> <p>Where therefore the court charged the jury that a party who claimed a prescriptive right to a public landing must have excluded the public and every member of it, it was held that the charge was open to exception, as implying an actual exclusion of every member of the public from the premises, while it should have required only an exclusion from the possession.</p> <p>Where a highway is laid out to navigable water and there terminates, the terminus may be regarded as presumably intended for a public landing as incident to the highway.</p> <p>Where however a highway, running from place to place, is laid out along the shore of a navigable stream and in immediate contact with it for a considerable distance, the reason for the presumption does not exist.</p> <p>The question in such a case depends on the circumstances, and is one of fact for the jury.</p> <p>It seems that,the statute (Rev. Stat., tit. 38, § 3,) which provides that no person shall acquire title by adverse possession to land belonging to a highway, does not apply to a public landing not part of a highway.</p>

<p>An executor’s bond was given with a condition that the executor should “ well and truly execute said will and settle said estate according to law, the provisions of said will and the orders of court, within one year from the date hereof.” Held a valid bond, although the statute then in force prescribed a form for an administrator’s bond which stated the duties of the administratqr in detail, and provided that executors should “become bound in the same manner mutaiis mutandis.”</p> <p>The will in this case contained provisions which could not be executed within one year. . Held, that this fact did not render nugatory that part of the bond which required a settlement within one year, but that that provision of the bond would be construed as applicable to such duties of the executor and orders of court as could be performed within one year.</p> <p>Whether, if that provision of the bond were held to be applicable to the will itself, so that that part of the condition could not be performed, it would affect the validity of that part of the condition which could be performed : Qumre.</p> <p>A testator made a certain provision for his widow, whom he appointed his executrix, and after making sundry bequests gave all the rest of his property to his grandchildren after the death of his widow. There was thus left a considerable amount of personal property not expressly disposed of during the life of the widow, and which would, if regarded as falling into the residuum, be left in the hands of the executrix to accumulate for the grandchildren. Held that, as this intention was improbable, and there were no words- to indicate it, and no provision that the executrix should hold the property as trustee for the grandchildren, the will should be construed as giving the widow the use of this property for her life.</p> <p>A new trial for a verdict against evidence on the ground of insufficient damagesj denied, where the difference was inconsiderable.</p>

<p>The act of 1850 provides that “ in suits by or against the representatives of deceased perso'ns, the entries and written memoranda of the deceased, relative to the matter in issue, may be received as evidence.” A woman who claimed to have been defrauded of her property wrote letters to her counsel and to other friends stating the facts of the case. Held, that these letters weré written memoranda within the moaning of the statute, and admissible in evidence in a suit brought by her representatives for the recovery of the property after her death.</p> <p>And where the suit was a bill in equity brought by devisees under her will, to compel the reconveyance of real estate which had been fraudulently obtained from her, the petitioners were regarded as her representatives within the meaning of the statute.</p> <p>Where the letters contained parts that were inadmissible in evidence by reason of their irrelevancy, and the objection was taken to each letter as a whole and not to the parts that were irrelevant, it was held that the objection could not be sustained if any part was relevant. " t</p> <p>Whether the written memoranda left by a deceased wife can be used as evidence in a suit against her husband, in a matter relating to her separate property: Quaere. The court inclined to the opinion that they may be so used.</p>

<p>B, an unmarried woman residing in this state, owned by inheritance a large quantity of lands in the state of Ohio, which were in the care of sundry agents residing there. In the year 1839, while so owning the lands, she gave to B, residing in this state, a power of attorney authorizing him to take charge of the lands, to sell them, to change, renew or settle contracts with regard to them, to receive all moneys derived from them, and to do every thing necessary and proper in the management and sale of them that she could do herself. B entered upon the duties of the agency, and continued therein till his death in 1861. He resided during all the time in this state and managed the business through the local agents, who made remittances to him. In 1841 he accounted to B for all moneys received fo that date and paid over the balance then in his hands. Ho settlement was made after that date, but B continued to receive money from the local agents down to the time of his death. Held, that his relation to B was that of an ordinary collecting agent, that upon the receipt of money he became immediately liable for it to her, and that the statute of limitations began at once to run against such liability, and that his estate was liable to account to B only for such moneys as were received by him during the six years preceding his death.</p> <p>The statute of limitations is a beneficial one, and it is the policy of our law to sustain it. The lapse of time is regarded as furnishing presumptive evidence ot payment, rather than as in itself an arbitrary bar to an unsatisfied claim.</p> <p>And the statute, though in terms applicable to actions only, applies to all claims which may be the subjects of actions, however presented.</p> <p>Where a party appealing from the disallowance of a claim by commissioners on an insolvent estate, in assigning upon the record in the superior court his reasons of appeal, alleges that the claim is a book debt, he will be held to such rules with regard to the case as are applicable to the action of book debt, although the claim might have been made the subject of a bill in equity.</p>

<p>The directors of a savings and building association, who had borrowed all the money of the association and severally given their notes for the amounts loaned and for a bonus in each case in addition, agreed with M, a stockholder whose stock they wished to buy in and extinguish, to take one of the notes in exchange for the stock. After the agreement, but before the note was delivered, the directors voted that the amount of the bonus in each case should be canceled and indorsed on the note. No indorsement was however made upon the note delivered to M, who conveyed the stock with no knowledge of the arrangement. Held—1. That the agreement among the directors was a fraud upon the association, and of no effect. 2. That if it were not so, the director whose note was delivered to M, must be regarded as either waiving his claim to the release of the bonus, or as committing a fraud npon M, and that in either view he had no equitable claim to a deduction of the amount of the bonus from the note.</p>

<p>A tax collector sold under a tax warrant hank stock belonging to the plaintiff, for the collection of an illegal tax. The plaintiff knowing all the facts employed an agent to buy the stock at the sale. The money collected was paid into the town treasury by the collector.. Held, that the payment was not to be regarded as a voluntary one and that the money could be recovered back from the town.</p> <p>Assumpsit is the proper remedy in such a case.</p>

<p>The commissioners on the insolvent estate of a mortgagor disallowed interest on a mortgage note presented against the estate on the ground of usury, and allowed only the principal. A second mortgagee had purchased the equity of redemption and appeared before the commissioners to defend against the claim with the administrator on the ground of usury. Held, on a bill of foreclosure afterwards brought by the first mortgagee, that the judgment of the commissioners was not conclusive against him on the question of usury, .</p> <p>The allowance or disallowance of a claim by commissioners can only affect the insolvent estate itself.</p> <p>The estate paid a dividend of 25 per cent, on the amount allowed by the commissioners. The note -yas on three years’ time with annual interest, and at the time the bill of foreclosure was brought nothing was due on it but one year’s interest. Held that, as the amount allowed by the commissioners was wholly principal, the dividend was to be applied solely to the principal, leaving the interest unpaid.</p> <p>The defence of usury is a mere personal defence, of which no other party but the debtor can take advantage.</p>

<p>The making of a full and correct inventory of the property of an estate is one of the most important duties of an executor or administrator.</p> <p>Where property comes into the hands or to the knowledge of an executor or administrator after an inventory has been made, it is his duty to make an additional inventory.</p> <p>A suit on the probate bo'nd is a proper remedy for the neglect to inventory property.</p> <p>A declaration on a probate bond charged that the executor received certain per» sonal property, consisting of money and choses in action, which he had never inventoried. The defendants pleaded in bar a settlement of the administration account in the court of probate, setting out the account as settled. By the account thus set out it appeared that the property in question had not been accounted for. Held that, upon the facts admitted by the plea, such a settlement could not bar the action on the probate bond.</p> <p>In the administration account as settled the executor had not charged himself with any property whatever, but in the place of such a charge there was the following entry:—“ The appraisers made no return of personal property.” Held, that the court of probate, in allowing the account, could not be regarded as having found the fact that there was no property to be appraised, much less that property had not since come into the hands of the executor. ■</p>

General Assumpsit. Facts found by an auditor, and judgment rendered by the superior court (Park, I,) for the plaintiff. Motion in error by the defendant. The case will be sufficiently understood from the opinion.

The General Assembly at its May session, 1865, adoptéd a resolution requesting the judges of the supreme court to convene and give their opinion upon the question “ whether a negro is or is not a citizen of the United Slates, within the meaning of that phrase as used in the amendment to the constitution of the state, adopted in October, 1845.”

This was a bill in equity, brought by cestui que trusts against testamentary trustees, to compel an account in the United States circuit court.

Bill for an injunction against the laying of a horse railroad track in a public street in the city of New Haven, brought by sundry owners of lands lying upon the street. The facts, as well as the points made by the petitioners’ counsel, are sufficiently stated in the opinion.

<p>A debtor was decoyed by false pretenses from the state of Massachusetts, where he resided, into this state, for the purpose of being sued by the creditor here. On his arrival his body was attached in the suit. Held that the whole proceeding was a fraud upon the debtor, of which the creditor could take no benefit, and the debtor was discharged on a writ of habeas corpus.</p>