Volume 33 — Connecticut Reports

The decree of the superior court in this case having been reversed (ante Vol. 81, p. 1,) the case was again entered in that court, and in accordance with the advice of the supreme court was sent again to the committee by whom the facts were before found, for a further finding of facts.

Case, by husband and wife, for an injury to the land of the latter by the wrongful flowing of the same by the defendants.

Assumpsit, against the defendant as surviving partner of the firm of Imlay & Weston. The declaration contained a special count upon a promissory note of the firm, and the common counts in general assumpsit, with a factorizing' process attached. The suit was brought to the September Term of the superior court in Hartford county in the year 1859, and judgment taken by default at that term.

Action on the case for injuries to the plaintiff’s testator through the negligence of the defendants in running their cars, upon which he was a passenger, brought upon the act of 1853, “ to prevent injuries and the destruction of life upon railroads.” Revision of 18.66, p. 202.* After demurrer overruled, the parties were heard on the question of damages.

Action on the statute concerning highways and bridges, to recover damages for injuries sustained by a fall upon a sidewalk in the city of Hartford by reason of ice left upon it; tried upon the general issue, before Carpenter, J. The jury returned a verdict for the plaintiff, and the defendants moved for a new trial, on account of the ruling of the court against the admissibility of certain evidence.

Tbespass quare clausum fregit, with a count in case for the same cause of action, brought originally before a justice of the peace, and thence by appeal to the superior court, and there tried upon the general issue closed to the court with notice of special matter in justification.

Bill in equity, brought by Harriet B. Wilmerding, Johanna E. Russ, and John Russ Burrows, against Mary Russ, executrix of the estate of Charles J. Russ, deceased, praying for a re-conveyance of certain stocks, and an account. Other parties interested were also made respondents.

Assumpsit, on a joint and several note executed by the defendant with Aner Bradley, Jr,, and Scovill M. Buckingham, dated February 5th, 1853, for the payment to David Buckley or order, on demand, of the sum of five hundred dollars. The defendant pleaded the general issue, with notice of the defense of usury. The case was referred to an auditor, by whom the following facts were found.

Petition under the flowage act for.authority to raise a mill dam, and for the assessment of damages to sundry owners of lands which would be overflowed thereby. The suit was brought to the superior court in New Haven county, and the several land owners were made respondents.

Action of debt, brought to the city court for the city of New Haven, to recover a penalty of fifty dollars, under the provisions of a city by-law. The defendant demurred generally to the declaration, upon which issue was joined, and judgment given for the plaintiff. The case came by appeal to the superior court, and was there reserved upon the same pleadings for the advice of this court.

Assumpsit against the defendant as indorser of two promissory notes, with the common counts, tried in the superior court (Park, J.,') on the general issue, with notice that the execution and delivery of the notes, by any of the alleged parties thereto, was denied. On the trial the plaintiffs produced in support of their claim two notes, one of which was of the following tenor : $2,700. Albany, August 13th, 1860.

Complaint exhibited to a county commissioner and a justice of the peace for a forcible entry and detainer, tried to the court upon the general issue severally pleaded.

Assumpsit upon the common counts, tried in the superior court (Butler, J.,) upon the general issue closed to the court, with, notice that the defendant would offer evidence that he was not otherwise connected with the matters in suit than as administrator of the estate of Simon Underhill deceased, that the property sued for was a part of said estate, and that his acts in the premises were under the direction of the court of probate, before which the estate was pending for…

Debt brought in the name of the treasurer of the state on a bond given by Jacob A. Yan Zandt, as sheriff of the county of Fairfield, against the defendant as administrator of his estate.

Scire facias on a recognizance of the defendant for costs in a suit brought by the Danbury and Ridgefield Turnpike Company against the present plaintiffs and which was decided against the turnpike compay.

Petition for an injunction against the keeping of a slaughter house near the dwelling of the petitioner. The facts, which were found by a committee, were as follows :— The petitioner owns a tract of land, situated about one and a half miles from the center of Bridgeport, on which, prior to May, 1864, he had erected a valuable dwelling house, and then occupied the same with his family, consisting of wife, four children and servants.

Porter, deceased, in rejecting a claim of the appellant, in their report returned to the court of probate for the district of Danbury. The appeal was duly entered in the superior court, and an attested copy of the probate records filed, from which it appeared that the appeal was taken and allowed, and bonds for its prosecution given and accepted, on the same day in which the report of the commissioners was returned to court.

Irwin, The case was tried to the jury in the superior court before Pardee, A,on a plea denying the validity of the will because-not attested by three witnesses as required by the statute.

Assumpsit, to recover for expenses incurred in the support of a pauper named Lucy S. Phelps, claimed to belong to the town of Montville ; tried to the jury in the superior court, on the general issue, before Phelps, «I On the trial the plaintiffs introduced evidence to prove that on the 4th day of July, 1868, Lucy S. Phelps was an inhabitant of the town of Montville, residing in the town of Salem, and had become reduced by sickness to want, and was supported at the expense…

Petition to the superior court under the act of 1864, praying that the comptroller of public accounts might be required to draw an order on the treasurer of the state for certain state aid given to the families of volunteers in the military service of the United States by the act of 1861. Reserved on a finding of facts for advice. The case is sufficiently stated in the opinion.

Petition to the superior court for the establishment of lost boundaries between the land of the petitioner and that of Deborah Williams, one of the respondents.

Writ of error to the superior court from a judgment of a justice of the peace, upon a complaint in summary process for the recovery of the possession of leased premises. The original suit was brought by Palmer, the defendant in error.

Bill in equity, alleging that the respondent had used and still continued to use a trade-mark belonging to the petitioner, and praying that he might be enjoined against its further use either in selling goods already so stamped by him, or in stamping with it packages thereafter put up for sale.

This was an action of special assumpsit, charging the defendants in one count with a failure to deliver at Stafford a’ quantity of wool which had been entrusted to and received by them as common carriers between the city of New York and Stafford ; and in a second count alleging that they were common carriers between New York and New London, and as such received the goods in question for delivery to the New London Northern Railroad Company at New London, but that they had…

Covenant, brought by the- plaintiff, a constable, upon the following receipt for attached property signed by the defendants :— ■ “ Received, August 14th, 1861, of John Dayton, constable of Greenwich, the following described personal property, to wit, one grey horse and one carriage, all of the value of one hundred and fifty dollars, taken by him as the property of Joseph G. Merritt, of the town of Greenwich, by virtue of a writ of attachment in favor of George Jones, of the…

<p>Amicable shit. The case is fully stated in the opinion.</p>

Bill in equity, to set aside a conveyance of real estate made by the respondent Henry A. Parkis .to the other respondent his wife. The petitioner had levied an execution on the land as a creditor of the husband. The case was referred to a committee, by whom the following facts were found.

Assumpsit for money had and received, appealed from a justice of the peace, and tried to the jury in the superior court, on the general issue with notice, before Pardee, J. The plaintiff was a minor.

Writ of error to the superior court from a judgment of a justice court in favor of the complainant in a summary pi'ocess for obtaining possession of a house occupied by the original defendant under a lease from the original plaintiff. The defendant in the justice court pleaded a general denial of the allegations of the complaint. The complaint alleged a forfeiture of the lease by the non-payment of a quarter’s rent which fell due on the 2d day of October, 1865.

Amicable suit. Eli Akins died in 1869, leaving a will, which was duly proved, and of which the important parts are as follows:— “ Third.

Ives represented insolvent. The appellant had obtained a judgment against the executor of Ives, (80 Conn. 329, and 31 id., 276,) and had presented it to the commissioners on the estate, by whom it was disallowed.

Assumpsit for freight and for damages in the nature of demurrage, being the same case reported in 82 Conn. R., 268. The superior court, in accordance with the advice of this court, rendered judgment at its October term, 1865, for the plaintiff to recover for the freight alone, fixing the amount at $ 147.81. The defendants at the March term of the court in 1863 had filed the following offer of judgment, under the statute authorizing it.

Amicable suit, upon the following agreed statement of ■facts. The plaintiffs have an account against the defendants, which is undisputed, amounting to $618.50.

Petition to the superior court for the sale of certain real estate held by the parties as tenants in common and for the distribution of the proceeds of the sale ; involving the construction of the will of Sarah A. Lyon under which all the parties held as devisees; reserved upon facts found for the advice of this court. The case is sufficiently stated in the opinion.

Bill in equity. On July 1st, 1860, the petitioner, who owned a building lot on State street in the city of New Haven, bounded on the north side and rear by land known as the Judson lot, and owned in common by James A. Wood, William I. Benton and George W. Goodsell, entered into an oral' agreement with them that a passway should be opened for the common benefit of all, running back one hundred and fifty feet from the street to the line of the rear of his lot.

Bill in chancery for a set-off of a judgment held by the petitioner, against a judgment in trespass which the respondent had recovered against the petitioner.

Action on the 544th section of the statute with regard to corporations, (Revision of 1866, page 202,) which provides that in case the life of any passenger on a railroad who is in the exercise of reasonable care shall be lost by the negligence of the railroad company, the company shall be liable to pay damages not exceeding five thousand dollars and not less than one thousand dollars, to be recovered by the executor or administrator in an action on the statute, for the…

Action of debt, brought under the provisions of a by-law of the city of New Haven for the prevention of nuisances, by the city treasurer, to recover a penalty of fifty dollars. This cause came before this court, at its preceding term in this county, upon a reservation-for advice upon the sufficiency of the declaration, to which the defendant had demurred.

Information for keeping a disorderly house ; tried before Loomis, J., in the superior court. Defendant found guilty and motion for new trial for error in the charge of the judge. The case is sufficiently stated in the opinion.

Information for theft. Upon the trial of the case to the jury iu the superior court, before Phelps, J., upon the plea of not guilty, the state claimed to have proved that the article alleged to have been stolen, — a diamond-ring of great value— was the property of Mrs. Henry O. Hood of the city of Washington, in the District of Columbia; that it was lost from her finger in a wash-tub while she was engaged in washing in the tub, and missed by her within ten or fifteen minutes…

Indictment eor rape. On the trial of the case to the jury in the superior court on the plea of not guilty, before Phelps, J., the state offered in evidence a plan of the interior of the house in -which the crime was said to have been committed.

Bill in equity, being the same case reported in 32 Conn. R., 422. The demurrer to the petition having being overruled in accordance with the advice of this court there given, the respondents filed a general denial of the allegations of the petition, upon which the superior court found the following facts.

Amicable submission upon an agreed statement of facts, reserved by the superior court for the advice of this court. The-plaintiff is the son of Christopher Colt, and as such one of the legatees under the will of Samuel Colt. The defendants are the executors of the will.

Amicable suit, upon the following agreed statement of facts. Romania Seymour died in 1852, leaving a widow and two unmarried sous, William H. and DeWitt 0., as his sole heirs. By his last will he devised certain real estate to William in trust for the benefit of De Witt, who was an idiot, during the life of the latter, at the expiration of which it was “ to revert to said Wm.

Amicable suit, upon an agreed statement of facts, to determine a question arising upon the construction of a paragraph of the will of Nathaniel Patten, reserved by the superior court for the advice of this court. The case is sufficiently stated in the opinion.

Application, by a special committee of the South School District of the town of Hartford, for a mandamus- against the respondents, the regular committee of the district, to compel them to replace in one of the schools of the district a teacher who had been removed by them. The following facts were found by the superior court.

. Scire facias, brought against the defendant as garnishee in an action of assumpsit, in which the plaintiff recovered judgment against Jabez Ripley.

Amicable submission to the superior court upon the following agreed statement of facts. Horace Goodwin of Hartford died, leaving a will executed in 1863, which was duly proved, and in which occurred the following provisions: “ First. I give and bequeath to my beloved wife, Phcebe O. Goodwin, all my househould furniture, plate and jewelry, and all my personal property in my house. “ Second. I give and bequeath to her the house and lot, No. 41 Pearl street.

Habeas Corpus, before the superior court, Carpenter, J., for the discharge of Henry Howard Edgar and Sarali Sophia Edgar, minor children, from the custody of the respondent. The respondent made the following return to the writ.

Trespass quare clausum fregit, tried to the jury in the superior court upon the general issue with notice of special matter to be given in evidence, before Carpenter, J. The plaintiffs claimed title to a part of tire locus in quo by a deed from Peleg Corbin, dated August 10th, 1805, in which he conveyed to the inhabitants of themighth-school district in the town of Thompson forever, “ a certain tract or piece of land, situated and lying in Thompson in said district, for the…

Action of Slander. The first count alleged that the slanderous words, which were a charge that the plaintiff was a prostitute, were spoken on the 6th day of March, 1864. Several other counts alleged the speaking of other slanderous words at different times. Before the trial the plaintiff moved to amend by adding two other counts, alleging the speaking on the 1st day of May, 1864, of different words, but which charged the plaintiff substantially with being a prostitute.

Action of trespass, in two counts, each charging a trespass quare clausum fregit and a further trespass de bonis asportatis. The defendant suffered a default, and, upon a hearing in damages, the following facts were found by the Court.

Action of debt upon a probate bond, given by a guardian upon obtaining an order to sell real estate, brought in the name of the judge of probate, for the benefit of the ward.

Bill in Equity, praying for an injunction against the further prosecution by the respondents of a petition under the flowage act.

Bill in Equity, brought by the petitioners as legatees and devisees under the will of Abbie H. Beckwith, deceased, against Elias H. Beckwith, her husband, and -Eliphalet and Eupice Beckwith, brother and mother of the said Elias, to compel the said Eunice to convey to them certain real estate alleged to have been obtained from the said Abbie by a fraudulent combination of the respondents and which stood in the name of said Eunice, and for an injunction against the prosecution…

Assumpsit, brought against tho town of Portland on the following order, held by the plaintiff by assignment from the original payee. “Portland Town Treasury. Conscript Relief Eu-nd. No. 9. Held: in pursuance of a call for the same duly made, at which meeting the following votes were passed. “ 1.

Bill OP interpleader. The respondent Jarvis had transferred to the Middletown Savings Bank sundry shares of the stock of the Middlesex Quarry Company as collateral security for a loan, and the savings bank had taken and held a certificate in its own name for the stock. The equitable interest of Jarvis in the stock was afterwards attached by one Rowland, a creditor; and still later an assignment was made by Jarvis to other creditors of the same equitable interest.

Action on the case against Gad G. Northrop and John J. Stillson, the declaration containing two counts.

Action of ejectment; also a bill in equity to obtain the legal title to the same land. The two cases were heard together. The plaintiffs claimed title by virtue of an execution. in their favor, levied upon the property as the estate of Chauncey Ford, a non-resident debtor, living in the state of Califor nia.

Petition for an injunction against the removal of a church edifice owned by a religious society of which the petitioner was a member. Held: the following vote was passed: — 46 Whereas the Baptist Ecclesiastical Society of Pleasant Valley has become weak, and wholly unable to support the gospel, and are owing Hart Doolittle $875 by note, and feeling that it is expedient to move their house of worship to New Hartford for the more special benefit and accommodation of said…

Assumpsit, to recover money illegally collected of the plaintiff as a tax.

Assumpsit. The defendant pleaded the general issue with notice of a set-off, and on the trial to the court, before Loomis, J., offered in evidence a judgment recovered in his favor against the plaintiff and one Henry Snyder, upon which there was due a larger sum than the amount of the plaintiff’s demand, and claimed the right to set off so much of the judgment as would satisfy the claim of the plaintiff; to which the plaintiff objected, and the court excluded the evidence…

Petition in chancery, praying that a permanent injunction, granted by the court at a former term, might be set aside. The petitioner demurred to the answer of the respondents, and the case was reserved by the superior court for the advice of this court. The facts of the case are sufficiently stated in the opinion.

<p>Ejectment, brought to the superior court for Hartford county. The following facts were found by the court.</p> <p>The land in question was owned, on and before the 10th of February, 1842, by Andrew Denison. At half past ten o’clock in the forenoon of that day it was attached by Harvey Bissell, a creditor of Denison, who subsequently obtained judgment in his suit and levied the execution issued thereon upon the laud, and afterwards devised the. same to the plaintiff.</p> <p>On the same 10th day of February Denison conveyed by ■ release deed all his interest in the premises to Susan Denison, of whom the defendant is- an heir. The deed was left at the office of the town clerk for record at twenty-six minutes after four o’clock in the afternoon, as was found by the entry of the town clerk upon it, but there was no other evidence to show at what time in the day it was executed.</p> <p>The return of the officer upon the execution levied upon the land was as follows:—</p> <p>“ By virtue hereof, on the 25th day of June, 1842,1 made demand of the within named Andrew Denison of the debt due on this execution and of my fees hereon, which he neglected to pay, and afterwards I made diligent search for goods, chattels and estate of the said debtor whereon to levy to satisfy this execution, but could find none within my precincts. For want thereof and by direction of the creditor I the same day levied this execution on all the right, title and interest the said Andrew Denison, the within named debtor, had in a certain piece of land situated in said town of Suffield; bounded as follows, (describing it) — containing thirty-nine acres, more or less, with the buildings thereon standing, the property of the within named debtor; the property having been béqueatlied by the late Andrew Denison, to Andrew Denison; the within named debtor, and Andrew Nooney in equal shares, subject to the life estate of Susan Denison; and thereupon the said creditor and the said Andrew, debtor, did agree upon and appoint Reuben Loomis, John P. Ingraham and Albert Kent, all disinterested freeholders in said town of Suffield, to appraise and estimate all the right, title and interest of the said Andrew Denison, debtor, in said land, and thereupon Artemus King, justice of the peace of said town of Suffield, administered the oath by law provided for the appraisers of land on execution, and having viewed said land said appraisers did then and there appraise and estimate the right, share and interest of the said debtor, being the undivided one half part of the above bequest under the incumbrance of the life estate of said Susan Denison, at the sum of $450 as the just and true value thereof, arid did certify the same under their hands in writing, which certificate they delivered to me and the same is annexed to this return; and this execution, cost and charges amounting to the sum of $973.53, after deducting $3,799.89 as per receipt on the back of this execution appears, I then endorsed $435.37, it being the balance remaining after deducting $14.6.3 costs and fees, leaving due $538.-14 ; and on the 27th day of June, 1842, I caused this execution and the endorsement of my said doings thereon to be recorded in the records of lands of the town of Suffield, within which the said land lies.</p> <p>Attest, . Chatjncey Rose, Constable.”</p> <p>Upon these facts the case was reserved by the superior court for the advice of this court.</p>

Action upon a covenant given by the defendant to secure the payment of a loan made by the plaintiff to Leonard Kennedy and Leonard W. Kennedy of Milwaukee in the state of Wisconsin, secured by a mortgage of real estate in Milwaukee executed by Leonard W. Kennedy and his wife.

Bill of interpleader, brought to the superior court for Hartford County, and reserved on an admission of the facts alleged in the bill for the advice of this court.

Bill in equity, brought to the superior court for Hartford county, alleging that the respondents, a joint stock corporation, had entered into a contract with the petitioner, by which they purchased of him a certain patent owned by him, for an improved process for dressing and finishing linen and cotton thread, and agreed to pay him therefor, besides the sum of $2,000 which was paid down at the time, one-half cent for every dozen spools of thread which the respondents should…

Bill for an Injunction, brought to the superior court for Middlesex county.

Action on the case, brought to the superior court for Middlesex county, by the plaintiff as administrator on the estate of Jeremiah Smith, deceased, for an injury to the land of the deceased by the defendants, a joint stock corporation, in keeping up and continuing- a drain previously dug wrongfnlly by others, by which a pond upon which the land bordered was in part drawn Off.

<p>A bill in equity alleged that the petitioner had an interest in certain patents under which the respondehts were licensees, and a right to a share of the tariffs which they were to pay under their license, and called for an account. While the suit was pending the petitioner made an assignment of all his property, including his interest in the patents and his claim on the respondents, to a trustee for the benefit of his creditors, with a provision that any surplus of the property that should be left should be returned to him. Held that this did not so completely divest the petitioner of all interest that he could not further maintain the suit, but that it was necessary that the trustee should be brought in as a party.</p>

<p>In an action on an insurance policy, the defendants, for the purpose of showing a fraudulent loss of the vessel insured, introduced evidence that the plaintiff had procured nine other vessels insured of which eight had been lost. The plaintiff then offered evidence to show that the companies by which the vessels had been insured had paid the claims for the loss without objection on the ground of fraud. Held inadmissible.</p> <p>A protest had been filed with a consul of the United States by the master of a vessel that had sustained injury at sea. In a suit on a policy of insurance on the vessel the plaintiff offered the protest in evidence, but it was excluded by the court on objection of the defendants. In his closing argument to the jury the plaintiff’s counsel attempted to state some of the contents of the protest, and on objection by the defendants’ counsel was allowed by the court to proceed, on the ground that such protests usually set forth the particulars of such a casualty, and that in the circumstances the plaintiff was entitled to any fair inference from the general character of the paper and the refusal of the defendants to have it read. Held to be error and a new trial granted.</p>

Bill in equity, brought to the superior court for New Haven county, praying that certain insurance stock belonging to the estate of Lucius D. Olmsted, deceased, and which he had in his life time contracted to transfer to the petitioners as security for an indebtedness to them, might be sold and the proceeds applied on the debt, or that the respondent, his administratrix, might be ordered to transfer the stock to the petitioners, to be applied at its ascertained value to the…

Bill in equity, brought by the petitioner as administrator, with the will annexed, of the estate of Elijah Thompson deceased, against the defendant as executor of Grace Jacocks deceased, praying that one hundred shares of the stock of the New Haven Bank standing in the name of the said Grace, and claimed to belong to her estate, might be transferred to the petitioner as such administrator, and an account be rendered of dividends received on the stock.

Debt on a bond for the payment of $2,000, dated November 25, 1857, with the following condition:— “ The condition of this obligation is such, that whereas the said French, in consideration of a valuable sum in money received to His full satisfaction from said Shelton, the receipt of which is hereby acknowledged, has agreed to deliver to said Shelton a certain one thousand dollar eight per cent, bond of the Mobile and Ohio Railroad Company, secured by pledge of income and…

Petition, brought to the superior court for New Haven county, praying for an injunction against the payment, by the respondent Stephens, treasurer of the town of Naugatuck, or by the town itself, which was also a respondent, of an award of $1,425 made by arbitrators against the town, in favor of one Philo Beecher, for an injury received by him by means of the defective condition of a highway in the town.

Action on the case, brought before a justice of the peace in Litchfield county. The defendant pleaded in abatement, which plea the plaintiff traversed, and the justice rendered a judgment that the defendant answer over to the action. From this judgment the defendant appealed to the superior court next to be holden in. Litchfield county, giving bond with surety by recognizance to prosecute the appeal.

General assumpsit, iu the superior court for Fairfield county. Facts found and case reserved for advice. The legal principles laid down by the court will be understood ■without a full statement of the facts,-which would occupy much space.

Action on the case for the breach of a warranty of a quantity of onion seed, sold by the defendants to the plaintiff, brought to the superior court for Fairfield county. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Action against the defendant as a stockholder of the Bank-of St. Paul in the state of Minnesota, to recover the amount of a debt due from the bank, which had become insolvent, by force of the statute of that state, which makes all stockholders of banks organized under the general banking law of the state liable for the debts of the bank, while they are stockholders and for one year thereafter, to double the amount of their stock.

Petition under the act of 1864, known as the flowage act, for the right to flood by a mill pond certain land of the respondent ; brought to the superior court for Fairfield county.

Assumpsit,,upon two special counts for breach of a contract to deliver a quantity of blackberry wine, and a count in general assumpsit for money had and received, to recover the sum of §50 paid by the plaintiff on the contract. The case was brought to the superior court for Fairfield county, and tried on the general issue closed to the court, before Hall, I, and the following facts were found by the court.

Bill in equity, brought to the superior, court for New London county. The facts were found and the case reserved for the advice of this court. The case is sufficiently stated in the opinion.

Assumpsit ; superior court, New London county. Demurrer to the declaration and reservation for advice. The case is fully stated in the opinion.

Assumpsit, brought originally before a justice of the peace, and by appeal to the superior court for New London county, on a note of the defendant to the plaintiff, for the sum of $28, with interest, executed in this state and payable here. The defendant pleaded the general issue, which was closed to the court, with notice of the following matters of special defence: — 1. That the note was usurious and the consideration illegal. 2.

Bill for a foreclosure of a mortgage of personal property and an order for its sale, brought to the superior court for New London county. The respondents were Carmi H. Williams, the mortgagor, Alfred H. Vaughn, the assignee in insolvency of said Williams, and Smith, Daniels & Co., who were also mortgagees of the property, claiming priority to the petitioner, who himself claimed that their mortgage was subject to his. The following facts were found by the court.