Volume 35 — Connecticut Reports

Scire Facias in foreign attachment, brought to the Superior Court in New Haven county. Special demurrer to the declaration; declaration held insufficient by Phelps, J., and motion in error by the plaintiff. The case is sufficiently stated in the opinion.

Petition in chancery, brought to the Superior Court in New Haven county ; demurred to and petition held insufficient by Phelps, I, and motion in error by petitioner. The case is sufficiently stated in the opinion.

Petition for a set-off and injunction, brought to the Superior Court in New Haven county. The court (Phelps, J.) passed a decree in favor of the petitioner, and the respondents brought the record before this court by motion in error. The case is fully stated in the opinion.

Assumpsit, brought to the Superior Court in New Haven county against the defendant, as tax collector, to recover the amount of certain taxes collected of the plaintiffs upon warrants held by him.

Writ op error from the judgment of the Superior Court in New Haven County, (Phelps, J.,) affirming on error the judgment of a county commissioner and justice of the peace in an action of forcible entry and detainer. The case is sufficiently stated in the opinion.

Ejectment, tried in the Superior Court in New Haven county, on the general issue closed to the court, before Phelps, J; facts found and judgment rendered for the plaintiif and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Trespass, brought to the Superior Court in New Haven county. There were three counts, one of which charged that the defendant set a dog upon the plaintiff which attacked and bit him, another that the defendant was the keeper of a dog which attacked and injured the plaintiff and for which the defendant was liable under the statute, and a third that the defendant made an assault on the plaintiff and beat and wounded him.

Assumpsit on a warranty of the soundness of a quantity of potatoes, brought to the Superior Court in New Haven county, and tried on the general issue closed to the court, before Phelps, J. Judgment for the plaintiff and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Petition for a highway, brought to the Superior Court in New Haven County, and reserved, on remonstrances against the acceptance of the report of a committee laying out the highway and assessing damages, and on a finding of facts by the court, for the advice of this court. The case is sufficiently stated in the opinion.

a mandamus, by the petitioner, a stockholder, to compel the respondents, a joint stock corporation, to keep their books of account at Meriden in this state, where their manufacturing business was carried on and where their principal office was kept, instead of in the city of New York where they kept an establishment for the sale of their goods. The case was brought to the Superior Court in New Haven county, and the following facts were found by the court.

Assumpsit, brought to the Superior Court in New Haven County. The writ had an United States revenue stamp attached to it, under the act of Congress then in force, which required all original process in the state courts to be so stamped and made the stamp necessary to its validity. The copy of the writ left with the defendant in service contained no copy or memorandum of the stamp on the writ, and the defendant pleaded this fact in abatement.

Petition for a divorce, brought to the Superior Court in New Haven county. The original petition was brought on the 27th day of July, 1865, to the September term of the court in that year, and charged as the ground of divorce the intemperance and cruelty of the respondent.

Bill in equity to compel the specific performance of a contract to convey a quarry and personal estate connected with it, brought to the Superior Court in Middlesex County, and tried before Carpenter, J. The contract was as follows :— “This Agreement made this 20th day of August, 1867, between Elisha Bloomer of the county of Westchester and state of New York, of the first part, and Charles G. Patierson of the city of New York, of the second part, witnesseth, “ That said…

Appeals to a judge of the Superior Court in Hartford' county, from assessments for the expense of constructing a, sewer in the city of Hartford. The three cases involved the; same general questions, and were argued together.

The appointment was made upon the application of the selectmen of the town of East Windsor, where the appellant had resided until his imprisonment in the jail of Hartford county, where he was confined at the time of the application. The reasons of appeal assigned were — 1. That the application was not properly served on the appellant. 2. That the probate court appointed the conservator without making due enquiry and without giving the appellant an opportunity to be heard. 3.

Trespass on the case, for an injury to the plaintiff’s reversionary interest in certain premises occupied as a slaughter house by the defendant, a tenant, in the removal of sundry articles claimed to be fixtures, with a count in trover for the same articles as personal property ; brought originally to the city court of the city of Hartford, where judgment was rendered for the defendant, and thence carried by the defendant, by motion in error, to the Superior Court in…

Scire facias, brought to the Superior Court in Hartford county, on a proceeding in foreign attachment against David S. Stetson and others, in which the present defendant was factorized as having the moneys of the original defendant in his hands.

Scire Facias, brought to the Superior Court in Hartford county, on a process of foreign attachment in which the defendant was factorized as the debtor of D. S. Stetson and others. The case was tried on the general issue closed to the court before Pardee, J., and judgment rendered for the plaintiffs, and the defendant filed a motion for a new trial and a motion in error. The case is sufficiently stated in the opinion.

Amicable submission to the Superior Court in Hartford County, under the statute authorizing such suits, upon the following agreed statement of facts : John Grou, deceased, late of the city of Hartford, by his last will, dated the 8th day of December, 1865, made, among others, the following bequest: “I give and bequeath to each of the children of my two sisters, in France, two hundred dollars in gold.” At the time when the will was executed there were living in France two…

<p>Where a third person claims property in the hands of an administrator, the court of probate has no power to try the question of title, and to make an order that the administrator deliver the property to the claimant.</p>

The proceedings were instituted under the provisions of the 41st section of the act with regard to the settlement of estates, (Gen. Statutes, p. 411,) which are given in the opinion. The appeal was taken to the Superior Court in Hartford County, and the order of the probate court was affirmed by that court, (Pardee, J.) The appellant thereupon brought the record before this court by motion in error.

Petition to the Superior Court in Hartford County for the establishment of a lost boundary between the parties, under the 33d section of the act concerning lands, Gen. Statutes, p. 543. The court, (Pardee, J.,) passed a decree establishing a bound fixed and reported by a committee, and the respondents brought the record before this court by motion in error. The points decided will be sufficiently understood without a statement of the facts.

Webster ; taken to the Superior Court in Hartford County. The Superior Court (Loomis, J.,) reversed the decree appealed from, and the appellees brought the record, which contained a finding of the facts, before this court by a motion in error. The case is sufficiently stated in the opinion.

Trespass, brought originally before a justice of the peace, who rendered judgment for the plaintiff to recover twenty dollars damages, and appealed by the defendant to the Superior Court in Hartford County, in which the plaintiff recovered only one dollar damages.

Bill in equity, brought to the Superior Court in Hartford County, to compel the conveyance of certain real estate standing in the name of the respondent, but in fact held by him as the agent of the British Government. This court having sustained a demurrer of the petitioners to a plea to the jurisdiction of the court filed by the respondent, (34 Conn.

Assumpsit, against a Shaker community, known as the East Family of Shakers, upon certain instruments described below, brought to the Superior Court in Tolland County. The defendant upon the record was “ Omar Pease, as Trustee of the East Family of Shakers,” and it was alleged that he was the successor of Zelotes Terry, late trustee of the community. The declaration contained three special counts, each upon one of the following instruments, and in the order given : 1. “$1500.

Petition under the flowage act by the owner of an existing mill, for the privilege of raising his dam and flowing the lands of the respondent.

The following facts were found by an auditor, to whom the case was referred. On the 12th of February, 1844, Huldah Peck, then Huldah Hawley, conveyed to the decedent, Nancy Ward, three pieces of land in the town of Southbury. They were sisters, and at that time were living with their parents in Southbury.

Appeal, by the executor of the will of Cynthia Booth, from the allowance of a claim by the commissioners on her estate, in favor of Cyrus Peck and others. The following facts were found by an arbitor to whom the case was referred. Isaac Peck, with seven brothers and sisters had inherited a tract of land from their brother, Asa Peck, previous to the year 1842.

Assumpsit, on a negotiable note, by a bona fide holder against the maker, reserved by the Superior Court on facts found by an auditor, for the advice of this court. The case is fully stated in the opinion.

Bill in Equity for a set-off. The bill alleged that the petitioner in 1863 recovered a judgment in Massachusetts against the respondents, Henry Snyder and Levi Snyder, for $1,747 damages and $22.57 costs, which judgment was still in force, and on which there was now due to the petitioner the sum of $649.26; that Levi Snyder had brought an action against him upon two notes, previously given by him to said Levi, one for $75 and interest, dated March 29th, 1862, and the other…

Action on the case for the obstruction of a right of way ; reserved by the Superior Court, on facts found, for the advice of this court. The case is sufficiently stated in the opinion.

Bill for an injunction to restrain the respondent from committing waste upon land of the petitioner in his possession, with a cross-bill praying that the… Held: and the deed was given and received with the understanding on the part of Green, Page and Einin, that Green was to take the place of Page, and to carry out the agreement to convey in the same manner that Page was to do, but of this understanding there was no written memorandum, and the proof of it was by parol.

Action on the case against the defendant as an inn-keeper to recover money stolen from the plaintiff while a guest at the inn. The following facts were found by the Superior Court. The plaintiff lost money at the defendant’s inn, under such circumstances that he is entitled to recover therefor the sum of |60, if the relation of inn-keeper and guest existed between the parties. The defendant it was admitted was an inn-keeper.

Assumpsit for supplies furnished to paupers belonging to the defendant town; tried in the Superior Court on the general issue, closed to the court, before Pardee, J., and judgment rendered for the plaintiffs. Motion for a new trial by the defendants.

Assumpsit on a note given by the defendants to Emerson J. Terrell, for a bounty of $100 due him for enlisting in the military service of the United States. The note was dated October 14th, 1862, and was on demand, and was signed by the selectmen of the town. The plaintiff held it by assignment from the payee.

Assumpsit, to recover a bounty voted by the defendants to citizens of the town drafted into the military service of the United States. The following facts were found by the Superior Gourt: The plaintiff was a native and resident of the town of Sharon.

Bill in equity, for the opening of a foreclosure and the redemption of the property mortgaged. The following facts were found by a committee to whom the case was referred. The petitioner has very little other property besides the mortgaged premises; their value is from $8,000 to $9,000 ; and the mortgage debt is $3,723.50. The time limited for redemption by the decree of foreclosure was August 5th, 1867.

Indictment for the murder of Mary H. Green by poison; tried to the jury in the Superior Court, on the plea of not guilty, before Loomis and Granger, Js.

<p>A testator gave all his estate, subject to certain bequests, to his nephew, C, provided he should relinquish all claim to his father’s estate. Held that this meant that C should relinquish his interest in his father’s estate to his brothers and sisters, who were heirs with him.</p> <p>The will provided that if C should not relinquish his interest in his father’s estate, the property given him should go, one quarter to the heirs of C’s father and the rest to other parties named. An arrangement was entered into by C and. all Ms brothers and sisters except B, who was not present, and by an aunt, by which V was to relinquish his interest in his father’s estate to one of Ms sisters and the aunt was to convey certain real estate to his two brothers B and M. The conveyances were made accordingly and H entered into possession of the land conveyed to him, but in ignorance of the arrangement under which it was conveyed. The land was worth more than the share he would have received of C’s interest in his father’s estate, and he retained possession of it for four years after he had learned of the arrangement. Held that his assent to the arrangement would be inferred, and that there was no forfeiture of C’s interest under the will of his uncle.</p> <p>Where an arrangement is manifestly for the benefit of a person, slight evidence of his assent to it will be sufficient.</p> <p>A court of probate has no power to decree a forfeiture under the conditions of a will.</p>

Assumpsit for money had and received, brought originally before a justice of the peace and appealed by the defendant to the Superior Court, where it was tried on the general issue closed to the court, before Pardee, J. The court found that the money sought to be recovered was the sum of'$50, which was loaned by the plaintiff to the defendant on a Sunday in June, 1867, in the afternoon, before the setting of the sun; that the plaintiff took no note; and that afterwards, on a…

The judgment of Loomis, J., having been affirmed by this court upon a former hearing (ante p. 66, February term, 1868,) the parties appeared before the judge on the 22d day of April, 1868, and the City of Hartford, appellee, moved the court “ to take no further action in the case, but to dismiss the same, on the ground that the charter of the city, so far it created the court and gave it judicial power, was unconstitutional and void.” The motion was overruled by the judge,…

Scire facias upon a process of foreign attachment, brought to the Superior Court in Hartford County, and tried on the general issue closed to the court, before Pardee, J. Judgment for defendant, and motion for a new trial by plaintiff. The case is sufficiently stated in the opinion.

Assumpsit on a policy of insurance on the life of Lucy Kelsey, the wife of the plaintiff, for his benefit, brought to the Superior Court in Hartford county, and tried to the jury on the general issue, with notice of fraud in procuring the policy, before Sanford, J. The policy was for $5,000, and was dated November 28d, 1865. The material parts of the application, which was signed by the wife, and was dated November 22d, 1865, were as fol lows:— “ Question 11.

Assumpsit, brought to the Superior Court in Hartford county. The court (Pardee J.,) admitted in evidence a document offered by the plaintiff on which there was no revenue stamp, and judgment being rendered for the plaintiff the defendants moved for a new trial on that ground.

Action on the case, under the 80th section of the statute concerning common fields, (Gen. Statutes, tit. 21, ch. 2,) by fence-viewers, to recover double the expense of making a fence for a delinquent proprietor, brought before a justice of the peace and appealed by the defendant to the Superior Court in Hartford County, and tried, on the general issue, closed to the court, before Carpenter, J. The declaration alleged “ that at the annual meeting of the Proprietors of…

Bill in equity for an injunction against the prosecution of an action of ejectment, and for the establishment of the petitioner’s title to certain real estate, brought to the Superior Court in Hartford county. The real estate in question was the same which was the subject of suit in the case of Birge v. Nock, reported in 84 Conn. R. 156, and that action was the action of ejectment against which the injunction was sought.

Bill in Equity, brought by the petitioner as trustee in insolvency of the New England Fire Insurance Company, for the opening of a decree of foreclosure and for the right to redeem the mortgaged property; brought to the Superior court in Hartford County, and heard before Loomis, J. The court found the following facts.

Debt on a judgment, brought to the Superior Court in Hartford County, and tried to the court on the general issue, with notice. The following facts were found by the court: The judgment on which the present action was brought was rendered by the Superior Court, in Hartford county, at the September term, in the year 1858, and was for the sum of $7,465.85 debt, and $25.84 costs.

Debt on a judgment recovered in the state of California ; brought to the Superior Court in Hartford county, and tried on the general issue, closed to the court, with notice of a discharge obtained in the state of California after the judgment was rendered, under the laws of that state. The judgment is the same one on which the Connecticut judgment described in the case nest preceding was founded. The following facts were found by the court.

Case, for obstructing a water course ; brought to the Superior Court in Hartford County, and tried to the court. The court found the following facts: On the 4th day of August, 1849, the plaintiff and defendant bought a piece of land of one Sanford Grant, in which they were equally interested, the south half of which was conveyed to the defendant, and the north half to the plaintiff.

Assumpsit, on two notes executed by Wilmarth & Adams, brought to the Superior Court in Hartford county. Adams alone made defense, pleading the general issue with notice of the statute of limitations, the issue being closed to the court.

<p>A debt due from citizens of this state to citizens of Massachusetts was attached by process of foreign attachment, by a citizen of this state to whom the Massachusetts creditors were indebted. Before the attachment the debt had been assigned in good faith by the Massachusetts creditors to a citizen of Massachusetts, but no notice of the assignment had been given to the Connecticut debtor, and the attaching creditor had no knowledge of it. Held that the assignment, being good by the laws of Massachusetts without notice to the debtor, was good here, although by our law such notice would be necessary upon, such an assignment made here.</p>

<p>A policy of insurance contained a provision that no suit for the recovery of any claim on the policy should be sustainable in any court of law or chancery unless commenced within twelve months after the loss occurred. Where the amount due for a loss was attached by a creditor of the insured within twelve months, on a process of foreign attachment,' and a suit of scire facias was brought against the company by the creditor after the expiration of twelve months, it was held that the original suit saved the claim from the limitation of the policy, and that the suit of scire facias was sustainable.</p> <p>The policy provided that the insured should, if required, submit to an examination under oath as to his loss, and that the loss should not he payable till such an examination had been submitted to. The insured filed the ordinary proofs of his loss, which were not satisfactory to the company, and they required a personal examination, and used due diligence to notify the insured of such requirement, but were unable to find him. Held that the factorizing creditor stood in no better position than the insured, and that he could not recover the amount of the loss.</p>

<p>Complaint for a nuisance in the erection of a fence within the limits of a public highway in the town of Windsor, brought originally before a justice of the peace, and appealed by the defendant to the Superior Court in Hartford county, and there tried to the jury, on the plea of not guilty, before Loomis, J. The jury rendered a verdict of guilty, and the defendant moved for a new trial for error in the rulings and charge of the judge, and on the ground that the verdict was against the evidence. The case is sufficiently stated in the opinion.</p>

<p>The Superior Court will on motion erase a case from the docket where it is apparent from the record that it has no jurisdiction, or that the process is void. In other cases the defendant is left to his plea.</p> <p>Where a person charged with a crime is bound over to the Superior Court by a lower court, upon a complaint filed in such lower court, the attorney for the state may file a new information charging the offense in several counts and with various descriptions, adapted to the proof as he finds it.</p> <p>A complaint filed in a city court by the city attorney charged that the defendant, “ contriving by false pretenses to defraud one G O of his goods and chattels, to wit, four thousand bushels of grain of the value of $4,000, and eight thousand pounds of feed of the value of $1,000, did falsely represent to the said G G that he owned four thousand bushels of corn in his mill in D and a large stock of corn and grain in his mill in S, and that he had large means; by means of whieh false pretenses he obtained of said G G his goods and chattels aforesaid.” In the Superior Court the attorney for the state filed an informar tion charging that the defendant “ falsely pretended to G G that he was a man of large means and credit, that he owned four thousand bushels of corn in his mill in D, and a large stock of corn and flour in S, and that he was of abundant means to pay for one thousand bushels of corn and two thousand bushels of oats which he wished to buy, and that by these representations he obtained of said G C one thousand bushels of corn of the value of $4,000, and two thousand bushels of oats of the value of $1,000.” Held that the attorney for the state could properly file such an information.</p> <p>The complaint as originally filed by the city attorney was fatally defective, and the city court allowed an amendment after the evidence was closed. Held to have been rightly allowed.</p> <p>The offense was one of which the city court would have had final jurisdiction if it were not of so aggravated a character as to require a greater punishment than the court could legally inflict, and was to be sent to the Superior Court only in that case. The city court, instead of finding the defendant guilty and further finding the aggravated character of the offence, merely found that “ probable cause exists for the support of said complaint,” and thereupon bound the defendant over to the Superior Court. Held, on a motion in the latter court to strike thecase from the docket, that, while it would have been more regular to have formally found the guilt of the defendant and the aggravated character of the offense, yet, as the form adopted was one frequently used, and the proceeding was merely a preliminary one and the defendant’s rights not affected by its informality, it was no reason for striking the case from the docket.</p>

<p>The declarations of a voluntary grantor, made in the absence and without the knowledge of the grantee, that he was insolvent when the deed was made, are not admissible against the grantee, for the purpose of showing the conveyance to be fraudulent against creditors.</p> <p>But where the grantor remained in possession and continued to manage the property precisely as before, and the question was whether he was occupying as owner or as agent of the grantee, it was held that his acts of ownership were admissible in evidence against the grantee, and that his declarations made in connection with them were also admissible as explanatory of them.</p> <p>A conveyance by an insolvent of all, or substantially all, his property, in consideration of love and affection only, is constructively fraudulent against subsequent as well as existing creditors.</p> <p>A new trial will not be granted for the improper admission of evidence where it is clear that the case could not have been affected by it.</p> <p>Where a motion for a new trial was taken to the “next term” of the Supreme Court to be holden in the county, without describing the term, which next term was the September term 1867, to which term alone the motion could by law be taken, and the clerk of the court in his record had described the term to which it was taken as “the next term to be holden on the 2d Tuesday of February, 1868,” at which latter term he entered the case on his docket, it was held, on a motion made to strike the case from the docket, that the motion for a new trial was to be regarded as taken to the September term, and the clerk’s entry as an error, and that the case should be treated as if it had been entered in the docket of the September term and properly continued.</p>

<p>Assumpsit, for money had and received, brought, by appeal from a justice of the peace, to the Superior Court in Middle-sex County. The following facts were found by an auditor.</p> <p>In August 1866, the plaintiff, who resided in Saybrook, contracted there with one Earnham, the defendant’s agent, for two casks of ale to be delivered to him at Saybrook; and it was a part of the agreement that the casks, after the contents were sold, were to be returned by the plaintiff to the railroad depot at Westbrook, to be thence forwarded by railroad to the defendant at New Haven, and were not to be paid for by the plaintiff.</p> <p>The casks were emptied of their contents on or before the first day of November, 1866, and were delivered by the plaintiff at the Westbrook depot, to be forwarded to the defendant, on the 9th of April, 1867, and they were forwarded by th¿ railroad to the defendant, and received and receipted for at New Haven by one Waterman, a carman employed by the defendant. The plaintiff, shortly before delivering the casks at Westbrook, requested the driver of the stage between Say-brook and New Haven to inform the defendant that the casks would be returned on a certain day.</p> <p>On the 6th of June 1867 the defendant, in good faith, and without personal knowledge that the casks had been returned, and supposing that they had not been, caused an action for their value to be instituted against the plaintiff, and placed the writ in the hands of a proper officer for service, who on that day called with the writ on the plaintiff and read the same to him and stated to him, by direction of the defendant, that unless the value of the casks and the sum of $4.00 costs then accrued, ($1.68 of which was for the writ and the balance for the fees of the officer,) were immediately paid by the plaintiff, he should attach his property on the writ. The plaintiff to save his property from attachment, and supposing that the casks were lost, and that he was liable to the defendant for their value, after some hesitation paid the officer $12.00 in satisfaction of the claim and costs, and said to the officer at the time that this was not the last of it, and that he would bring a suit, before long to recover back the amount-paid by him if it should turn • out that the casks were not in fact lost. The plaintiff knew that the casks had been returned'to Westbrook, and supposed they had been lost at Westbrook, or between there and New Haven, and could not have ascertained the contrary without a journey to New Haven, which journey he made immediately after the payment to the officer, and thereupon did ascertain the contrary.. The first notice the plaintiff had that the defendant claimed that he was liable to pay for the casks was when the officer called on him to make service of the writ, but he received two letters from the defendant asking him to return the casks,'the last of which was dated on the 28th of March, 1867. In the-plaintiff’s agreement with Farnham, the agent, no time was named for the return of the casks.</p> <p>Upon these facts the Superior Court (Sanford J.) rendered judgment for the plaintiff for the amount claimed, and the defendant brought the record before this court by motion in error.</p>

<p>Where a person not before liable agrees to pay the debt of a third person, and as a part of the arrangement the original debtor is discharged from his indebtedness, the agreement is not within the statute of frauds. Otherwise if the origina^ debtor continues liable.</p> <p>Where the party thus undertaking to pay the debt of a third person agreed “ to pay and guarantee ” the debt, it was held that the word “ guarantee ” was not to be understood in a technical sense and that the agreement was an absolute agreement to pay, and that indebitatus assumpsit would lie.</p> <p>A compromise agreement signed by a part only of the creditors of a debtor, in eluding the plaintiffs, which was to be void unless signed by all, held inadmissible to affect a different agreement afterwards entered into between the plaintiff and the debtor.</p>

<p>Bill of interpleader, brought to the Superior Court in New Haven County, against Henry A. Balcom, administrator upon the estate of Abby M. Levin, and Luzon B. Morris, administrator upon the estate of Frederick D. Lewin, her husband, praying that the respondents might interplead and have adjudicated their respective rights to certain bonds, formerly the property of the said Abby, which were held by the plaintiffs and to which each of the respondents made claim. The respondents filed answers respectively, and the case was referred to a committee, who made the following report of the facts in the case.</p> <p>Frederick D. Lewin was born in Johnsbury, in the state of New York, in the year 1834, where his parents then resided. His father, who was an alien born, has continued to reside in the state of New York to the present time. Leaving that place in his childhood he subsequently resided, by successive changes of residence, in various states and places, until June 5th, 1861, when being then temporarily resident in Middle-town in this state, he there married Abby M. Eddy, the person specified in the petition as Abby M. Lewin. He derived no support from his father after about the age of fourteen years. Immediately after their marriage Mr. Lewin and his wife took up their residence in the state of Missouri. In the spring of 1862 they changed their residence to .Bethel in this state, where they continued to reside until 1864. Then abandoning that residence they removed, after a short stay at Middletown, to Branford in this state, where Mr. Lewin took up his residence in the summer or fall of 1864, and became rector of a church in that town.</p> <p>In July, 1865, while Mr. Lewin and his wife were residing in Branford, a brother of his wife died, and subsequently, while they were still residing in Branford, she, Abby, received from the estate of her brother, by bequest from him, the sum of three thousand dollars, as her own proper estate; which sum she deposited personally in the First National Bank of New Haven, on the 7th day of March, 1866, directing that the same should be entered to her credit upon the books of the bank ; whereupon that amount was credited to her, in her own name by the bank.</p> <p>On the 23d day of April, 1866, she personally directed the bank to invest a portion of the fund in bonds of the United States to the amount (not including premium) of $2,500 ; and thereupon, in obedience to her directions, the bank purchased such bonds, expending of said fund in the purchase thereof (including premium) $2,625. The bank regarded the bonds, at the time of the purchase, as her property, and set them aside in an envelope marked “U. S. Bonds, property of Mrs. Abby M. Lewin,” and received no directions from Mr. Lewin and knew nothing of him, so far as the bonds were concerned, at that time.</p> <p>Shortly after the purchase of the bonds, and about the 1st day of May, 1866, Mr. Lewin and his wife left Branford and went to. Geneseo in the state of New York, where both of them remained until her death, which occurred on the 25th day of July, 1866. She died intestate and without issue.</p> <p>Mr. Lewin left Branford with intent to abandon his residence at that place, and with no intention of returning there. He did not go to Geneseo with intent to adopt that place as a place of permanent residence. He and his wife being then in feeble health, he went with her to Geneseo for the purpose of spending the summer there in the house of his brother-in-law, in the hope that the health of himself and wife might be benefited by the change of áir and by the use of the water of certain mineral springs near Geneseo. At the time when he left Bran-ford, and from that time until the death of his wife, he had no definite intentions in regard to the selection of any place as the place of his future residence. So far as lie had any sort of intention on the subject, it was, during the whole time, an intention conditional and uncertain, whereby all decision in his mind upon the question was left in abeyance, to be determined in the future by the turn which his wife’s disease might take, and by other circumstances which might or might not arise.</p> <p>About the 1st of August, 1866, Mr. Lewin left Geneseo and went to Windham, in this state. It does not appear, and is not found, that at that time he had decided in his own mind where he would take up his.residence; but during his subsequent stay at Windham he did make up his mind upon the subject, and determined upon Windham as the place of his residence, — regarding it as his home and making preparations to go into business there. On the 3d day of January, 1867, he died at Windham, intestate and without issue, being then, and having for some time previously been, resident and domiciled at Windham. He was buried at Geneseo at his request.</p> <p>While Mrs. Lewin was living at Geneseo she drew from the bank, without any intervention of her husband, sums amounting in all to $400, — the last of which sums was paid to her .on the 14th day of July, 1866.</p> <p>On the 23d of July, 1866, Mr. Lewin sent to the president of the bank a letter, enclosing another letter, both of which are given below. They were both written by him, except that the signature'of the enclosed letter was subscribed by Mrs. Lewin with her own hand. She was then in a very feeble condition and was near her death, but, in the absence of all satisfactory proof to the contrary, it appeared, and is therefore hereby found, that she was intelligently aware of the contents of the letter when she so signed it, and that her signature was her own free act. The letters were as follows:</p> <p>“Geneseo, July 23d, 1866. Hon. H. M. Welch, Dear Sir. I inclose a note from Mrs. Lewin with regard to transferring her account at bank from her name to mine. She is very ill indeed and will be in need of money from time to time. By slow degrees she managed to complete her short note, with a feeble, trembling hand. Please send the balance of which you speak at once, and sell one of the bonds. Mrs. Lewin is so very low, and is such a sufferer, that I am very much alarmed for the result. Please let me hear from you at your earliest convenience. Direct to “Rev. P. D. Lewin.” With many thanks for your kindness I am, Very truly yours,</p> <p>P. D. Lewin.”</p> <p>“Geneseo, July 23d, 1866. Hon. H. M. Welch, Dear Sir. My health is so much worse that I fear I may not be able to draw for money when needed. . I desire therefore to have whatever bonds or money there may be in my name transferred to that of my-husband, Rev. P. D. Lewin, and you are hereby authorized and requested to make such transfer. Many thanks for your kindness. I trust that this is all that is necessary legally. Yours truly, Abbie M. Lewin.”</p> <p>In obedience to the directions of these letters, the bank, on the 28th day of July, 1866, sold one of the bonds and remitted the proceeds thereof to Mr; Lewin ; and subsequently, in obedience to directions received from him, sold some of the bonds, from time to time, and remitted to Mm the proceeds thereof; so that, on the first day of November, 1866, the balance of the original fund remaining in the hands of the bank, consisted of two bonds of the United States, one for $1,000 and one for $500, which the bank has ever since held, and still holds awaiting the result of the present suit.</p> <p>At various times after the death of his wife, Mr. Lewin, in conversation with persons related to his wife by marriage, disclaimed all right to use the fund except for the purpose of defraying his wife’s funeral expenses and erecting a monument to her memory ; but he did, nevertheless, in fact, from time to time after his wife’s death, draw upon the fund to an amount exceeding $1,000, the principal part of which amount he did not use for the purpose of defraying her funeral expenses and for a monument, but for his own personal purposés.</p> <p>At all times prior to the receipt of the two letters above mentioned the bank received and obeyed, in reference to the fund, the orders of Mrs. Lewin only; and afterwards, until the death of Mr. Lewin, received and obeyed, implicitly, Ms orders in relation thereto.</p> <p>On the 30th day of March, 1867, William Lewin, of Buffalo, in the state of New York, father of said Frederick, took out letters of administration upon his estate, in due form of law in the surrogate’s court for the county of Livingston, in, that state, within which county Geneseo is situated.</p> <p>On the 17th day of April, 1867, letters of administration were issued by the court of probate for the district of New Haven, upon the estate of said Frederick, to Luzon B. Morris, respondent, and on the 6th day of February, 1867, letters of administration were issued by said last named court to Henry A. Balcom, respondent, upon the estate of said Abby, the decree in each case describing the intestate as late of Geneseo in the state of New York and as having property in this state within the jurisdiction of the court.</p> <p>Upon these facts the case was reserved for' the advice of this court.</p>

<p>A conveyance absolute on its face, if in fact taken as security, constitutes in equity a mortgage.</p> <p>The respondent to a bill to redeem had taken a conveyance of the premises from a grantee -who held by a deed absolute on its face, but in fact given as security. He had notice at the time of a claim on the part of the petitioner that the deed was intended only as security, but relied upon the assurance of his grantor that the petitioner’s right of redemption had expired and that he had no further claim on the property. After the respondent had made valuable improvements on the property the petitioner brought a bill to redeem. It appeared that the petitioner had held the property for sale. Held, that in the circumstances it would be a hardship to compel the respondent to lose the value of the improvements, if they could be saved to him without wrong to the petitioner — and that full justice could be done to the latter by the payment to him by the respondent of the d fference between the amount of the encumbrances and the actual value of the premises; and that a decree should be passed allowing him to redeem unless the respondent within a time fixed should make such payment.</p>

<p>Assumpsit by the- plaintiff, as administrator of Charles A. Judson, deceased, against defendant as maker of two checks, one dated September 12th, 1859, for $2,750, the other dated November 10th, 1860, for $1,500, and both drawn on the City Bank of New Haven, payable to bearer. The suit was brought to the Superior Court in New Haven County, and tried to the jury on the general issue, with notice, before Pardee J.</p> <p>Upon the trial it was admitted that the checks were executed by the defendant, and by him delivered without consideration, each on the day of its date, to one Baldwin, then a broker doing business in New Haven, and that the checks were afterward delivered by Baldwin to Judson for a valuable consideration. It was also admitted that the checks were not presented at bank for payment until February 1st, 1865, when payment was demanded and refused.</p> <p>The defendant offered evidence to prove, and claimed to have proved, that the checks were delivered by him to Baldwin wholly upon the faith of Baldwin’s promise to take care of them and save the defendant harmless upon them. He also offered parol testimony to prove, and claimed to have proved, that Judson knew at the time he received the checks that they were given by the defendant to Baldwin without consideration, and upon Baldwin’s agreement to take care of them, and that when Judson received them from Baldwin, he made an express agreement with him that he would look to him only for payment and would not present them at bank or call upon the defendant for payment, and that Baldwin should pay him one per cent, per month on the amount of the checks, as consideration for such agreement.</p> <p>The plaintiff objected to the admission of any parol testimony tending to vary the terms of the written contract as contained in the checks, but the court admitted the testimony.</p> <p>The defendant requested the court to charge the jury that if the checks were accommodation checks, given under the circumstances claimed by him, and if Baldwin then was, and remained for many months after Judson received them, able to indemnify the defendant against them, and if he would in fact have so indemnified him if he had been compelled to pay them during that time, and if Judson knowing these facts agreed with Baldwin not to present the checks, and carried out that agreement until Baldwin failed and became unable to indemnify the defendant, then the verdict must be for the defendant.</p> <p>The court did not so charge the jury, but, after recapitulating the facts and stating that they were substantially agreed by the parties, instructed them that if 'they so found the facts, the plaintiff was entitled to a verdict for both the checks.</p> <p>The jury having rendered a verdict for the plaintiff, the defendant moved for a new trial.</p>

<p>An information in the nature of a quo warranto will not lie in a state court to try-the right to the office of director in a hank organized under the national currency act.</p> <p>The amended currency act of 1864, sec. 57, which provides that suits against the national banks may he instituted in both the federal and state courts, does not confer jurisdiction in such a case.</p>

<p>Assumpsit upon the common counts; brought to the Superior Court in Middlesex county, and tried to the jury upon the general issue, with notice of the defence of the statute of limitations, before Granger, T. The defendants were partners under the name of Wyse & Co. The claim of the plaintiff was upon a general account, including charges for money paid on a contract, which had been rescinded, for the purchase of certain real estate. The jury having rendered a verdict for the plaintiff, the defendants moved for a new trial for errors in the rulings of the court upon the admissibility of evidence, and in the charge to the jury. The case is fully stated in the opinion.</p>

Writ op error to reverse a judgment of a justice of the peace upon a proceeding in summary process to recover possession of leased premises, brought to the Superior Court in Middlesex county. The court (Phelps J.) affirmed the judgment of the court below and the record was brought before this court by motion in error. The case is fully stated in the opinion.

<p>Action on the case, by tlie plaintiff as administrator of Jeremiah Smith, Junior, for injury caused by flowing certain lands in the possession of the plaintiff as such administrator, under Gen. Stat. 407, Sec. 25; brought to the Superior Court in Middlesex county, and tried to the jury upon the general issue with notice of a claim of right, before Granger J.</p> <p>On the first day of May, 1832, Jeremiah Smith, Junior, was sole owner in fee of part of the lands described in the declaration. On that day Jeremiah Smith, Senior, conveyed the remainder of the lands so described to Jeremiah Smith, Junior, and Erastus Smith, andón the same day Jeremiah Smith, Junior, and Erastus Smith conveyed by deed an undivided three-seventeenths of the same land to Jeremiah Smith 3d in fee.</p> <p>On the 1st day of September, 1832, Jeremiah Smith, Junior, and Erastus Smith executed to the Union Manufacturing Company, a corporation, the following lease, which the defendants claimed covered all the land described in the declaration.</p> <p>“ Know all men by these presents that we, Jeremiah Smith, Jr, and Erastus Smith, of East Haddam in the state of Connecticut, for the consideration of one hundred and seven dollars and twenty cents received to our full satisfaction of the Union Manufacturing Company, (a corporation duly incorporated by the legislature of this state and established in said East Haddam) this 1st day of September, A. D. 1832, have demised and to farm let for the purpose of flowing with water, and do by these presents demise and to farm let for the purpose aforesaid, unto the said Union Manufacturing Company and their assigns, all the land we the said Jeremiah Jr. and Erastus Smith own adjoining the pond commonly called Bashan Pond in said East Haddam, beginning at the highway at the northwest corner of said pond, and running a southerly direction by said pond until it strikes Jabez Swan’s land : — and hereby give and grant to said Union Manufacturing Company full leave and liberty to raise the dam at the natural outlet of said pond and flow the land of the said Jeremiah Jr. and Erastus Smith, as high as the water will rise in said pond, for the benefit of the factory now occupied by said company, or any other purposes said company or their assigns shall see proper to use it for, for the term of nine hundred and ninety-nine years from this date. To have and to hold to the said Union Manufacturing Company and their assigns for said term, to use and occupy for the purpose aforesaid as to said company shall seem meet and proper. And tlie said Jeremiah Jr. and Erastus Smith do further covenant with the said company that they have good right to let and demise the said letten and demised premises in manner aforesaid and for the purposes aforesaid ; and that they the said Jeremiah Jr. and Erastus Smith during said time will suffer the said company quietly to have and to hold, use, occupy, possess and enjoy the same for the purposes aforesaid, free and clear of all incumbrance, claims,'rights and titles whatsoever. In witness whereof, &o.”</p> <p>The Union Manufacturing Company were the owners of" the dam at the outlet of Baslian Pond, and of the factory there situated. On the 15th day of April, 1856, the company conveyed their dam and factory, “ with all the privileges and appurtenances appertaining thereto, ” to N. A. Cowdrey by deed, and on the first day of August, 1857, Cowdrey conveyed the same premises by deed to the defendants.</p> <p>On the 29th day of June, 1833, Erastus Smith conveyed his interest in the land to Jeremiah Smith Jr., and on the 19th day of September 1836, Jeremiah Smith 3d conveyed to Jere miah Smith Jr. all his interest in the land, being the three seventeenths conveyed to him by Jeremiah Jr. and Erastus before the lease. Jeremiah Smith Jr. died in 1864, being at his death sole owner of the lands described in the declaration.</p> <p>Neither the Union Manufacturing Company nor Cowdrey ever raised the dam and flowed the land described in the declaration, nor did the defendants do so until 1868, when they raised the dam four feet and overflowed the land. The land so overflowed was at the date of the lease, on the 1st day of September, 1832, wood and swamp, covered with trees and bushes, and was enclosed with a large lot of land con tainjng in all about two hundred acres, a part of which was woodland and part pasture land. The only use which had been made of the land since the date of the lease, and before the dam was raised by the defendants, was that the same had been inclosed in said lot which had been used for pasturing cattle.</p> <p>The plaintiff requested the court to charge the jury, that under the lease Jeremiah Smith Jr. had conveyed only his interest in the land, and that his administrator was not estopped from claiming an interest under his subsequently-acquired title from Jeremiah Smith 3rd ; that if the plaintiff was so estopped by reason of the lease being a conveyance of all the lands therein described, and not of the interest of the lessors only, the lease was void because it was a lease by two tenants in common by metes and bounds of a portion of the land held and owned by three tenants in common; that the interest conveyed by the lease had not been conveyed by the deed from the Union Manufacturing Company to Cowdrey, or by the deed from Cowdrey to the defendants; and that if the jury should find that for a period of over thirty years the defendants and those under whom they claimed had not flowed the laud or exercised any of the privileges conveyed by the lease, but that during all that time the plaintiff and those under whom he claimed had the uninterrupted, exclusive and adverse possession of the same, the plaintiff was entitled to recover.</p> <p>The court did not so charge the jury, but charged them that the lease professed to convey to the Union Manufacturing. Company the right to raise their dam and thereby overflow the land described in the lease bounding on the pond within the limits named in the lease ; and that the plaintiff was estopped from denying that Jeremiah Smith Jr. and Erastus Smith were the owners of the land thereby conveyed, or that they had a right so to lease the same ; and that the right to raise the dam and flow the land conveyed by the lease did pass to Cowdrey by the deed from the Union Manufacturing Company to him, and by the deed from Cowdrey to the defendants.</p> <p>The jury rendered a verdict for the defendants, and the plaintiff moved for a new trial for error in the charge.</p>

<p>A trade-mark, adopted by a manufacturer or trader for his goods, to become entitled to protection as his exclusive property, must in some manner designate the true origin or ownership of the goods.</p> <p>The name of a manufacturer, used by him as a trade-mark, may have added to and connected with it some peculiar device as auxiliary to the name in declaring the true origin and ownership of his goods; and a wrongful violation of such a trade-mark may be effected even though the name of the imitator be substituted for that of the original manufacturer, by such an imitation of the device as indicates a design to deceive and is calculated to deceive the public as to the true origin and ownership of the goods.</p> <p>Where figures indicating numbers are associated with the name of the manufacturer upon labels of certain form, color and general arrangement, and in connection with such labels are used by him to indicate his own manufacture, they may by virtue of that connection form an important part of a trade-mark.</p> <p>A manufacturer of britannia spoons, for the purpose of distinguishing them from all other britannia spoons in the market, and for the purpose of designating different classes of his own spoons, adopted several different labels of particular-size, form and color, with hjs own name thereon and some term descriptive of the spoons, and in connection therewith certain figures arbitrarily chosen, the different classes of spoons being indicated by fixed numbers. These labels constituted the only trade-mark under which he introduced his spoons into market, and under these labels "and numbers the spoons had become generally and favorably known and a large demand had grown up for them, and they were generally bought and sold by the numbers on the labels. Held that the labels thus arranged and used constituted legal trade-marks and were entitled to pro- . teetion.</p> <p>Where another manufacturer made spoons similar in character to those above referred to, though differing somewhat in style, and prepared labels resembling the above, and adopted the same numbers for similar kinds of spoons, the labels being so' similar.that a purchaser who did not read the name upon them might be deceived, and being adopted with the particular numbers for the purpose of aiding the introduction of his spoons into the market, it was held to be a violation of the trademark of the first manufacturer-, although the second manufaetu- ' rer put his own name on the labels in the place of that of the first.</p> <p>And it seems that the use of the figures with a cipher prefixed would not vary the case.</p>

Action on the case. The plaintiffs and their grantors had for more than a hundred years used and occupied a gristmill, with mill-pond and privilege connected with it, situated at Coscob in the town of Greenwich. The seat oftlie mill-pond was originally covered by an arm of the sea, being part of Cos-cob harbor, over which the tide ebbed and flowed ; the water of the pond being cut off from the harbor by the plaintiff’s dam and gate.

Ejectment ; tried in the Superior Court, on the general issue closed to the court, before Sanford J. Judgment for the defendant, and motion for a new trial by the plaintiff. The general principles involved in the case will be sufficiently .understood from the opinion, without a statement of the facts, which are complicated and could not be understood without a map of the premises.

<p>Ejectment, to recover the possession of a piece of land, originally a part of a highway, in the town of Danbury, tried to the jury in the Superior Court on the general issue before Pardee, J. Verdict for the defendants, and motion for anew trial by the plaintiffs. The case is sufficiently stated in the opinion.</p>

<p>Trespass on the case, brought to the city court of the city of Bridgeport. The first count of the declaration was as follows :—</p> <p>That on the 23d day of September, 1866, the plaintiff was and has ever since been the owner and in the possession of a certain wharf situated in said city of Bridgeport, [describing it;] that on said day a certain brig, named the Brilliant, of St. Johns, Nova Scotia, having on board a cargo of four hundred tons of coal for the Bridgeport Gas Light Company, arrived in Bridgeport harbor, and was brought and moored to said wharf with the consent of the plaintiff by the captain for the purpose of discharging said cargo upon said wharf; that on said day the captain commenced to discharge said cargo, and on that day and on the 24th and 25th days of said September, did discharge upon said wharf about one-half of said cargo ; that on the 25th day of September he had his said vessel still moored to said wharf with intent to discharge the remainder of said cargo thereon, and to remain moored there until said cargo was fully discharged, and was then and there at about the hour of nine o’clock of said day employed in making such discharge; that the plaintiff, as the owner of the wharf, as aforesaid, was entitled to demand and receive for the use of said wharf from said captain, the sum of three dollars per day for every day said brig should remain at said wharf, and the sum of one cent per ton for every ton of coal discharged thereon, and said captain was bound to pay the same, and said brig was holden for the payment thereof, and said captain had promised, expected, and intended, and was able, ready and willing, to pay the same to the plaintiff; that the plaintiff had made a contract with said Gas Light Company to carry said cargo of coal with his horses and carts from said wharf to the gas works of the said company, for the sum of fifty cents per ton for the transportation thereof, which said sum the said company had promised the plaintiff to pay to him and intended and were able and willing to pay to him for such transportátiou ; that the plaintiff under his contract aforesaid had transported to said gas works so much of said cargo as had been discharged upon the wharf as aforesaid, and on said 25th day of September, at about the hour of nine o’clock as aforesaid, then and there, and while said captain was engaged in the discharge of said cargo as aforesaid, had his said horses and carts engaged in transporting said coal to said gas works, and intended and was prepared and desirous to transport the remainder of said cargo as aforesaid from said wharf to said gas works as soon and as fast as the same was discharged upon said wharf from said brig; that the use of said wharf of the plaintiff by said brig in being' moored thereto, and in the discharge of said cargo thereon, and his said contract with said company, and his employment by them as aforesaid, had been and then and there were a source of profit and gain to him, to wit, the sum of twenty-five dollars per day, and but for the acts and misconduct of the defendant, as herein set forth, would have continued so to be a source of profit and gain to him for the space of ten days thereafter. And the' plaintiff says that the defendant, well knowing the premises, but contriving and intending to defraud and injure the plaintiff, and defraud him of his just profit and gain from the said use of his said wharf, and from his said contract and employment as aforesaid, at said Bridgeport, and within the limits of said city, on said 25th day of September, at about said hour of nine o’clock in the forenoon of said day, with intent to cause said captain to remove said brig from said wharf, and to prevent him from further using said wharf, and from discharging the remainder of said cargo upon the same, and from paying the plaintiff anything for the further use of said wharf as aforesaid, and with intent to hinder and prevent the plaintiff from fulfilling his said contract, and from continuing his said employment, and from receiving any gain or profit therefrom or from the said use of his said wharf, falsely and fraudulently pretended and represented himself to said captain to be an harbor-master for said harbor, and a superintendent of docks and wharfs within said city, and as such pretended harbor-master and superintendent, then and there on the day and at the hour aforesaid, made and signed a certain instrument in writing purporting to be an official order from the defendant as such harbor-master and superintendent, in words and figures as follows: “Bridgeport, September 25th, 1866. To the captain or the officer in command of the brig Brilliant, of St. Johns, N. S.,now lying at the wharf in the harbor and city of Bridgeport. You are hereby ordered and commanded to haul said vessel astern and far enough to permit the canal boat to obtain a berth at the elevator on the wharf of Miller & Co., on or before eleven o’clock this day, under penalty of thirty dollars for neglecting to obey. John Brooks, Harbor-Master and Superintendent.” And then and there, on said day, at about said hour, the defendant delivered the same to said captain on board said brig then moored at said wharf as aforesaid, and then and there and with intent as aforesaid, falsely and fraudulently pretended and represented to said captain that he then was harbor-master and superintendent as aforesaid duly, appointed and had full power and authority to make said order and enforce the same, whereas in truth and in fact the defendant at said time was not such harbor-master and superintendent, and had no power or authority to make said order or enforce the same ;- and the defendant, after the making and delivering of said order, and after the making of the representation as aforesaid by the defendant, at about said -hour of eleven o’clock, falsely and fraudulently, with.intent to intimidate said captain, threatened said captain that he would fine him thirty dollars unless he hauled said brig away from her berth at said wharf within two minutes, and falsely and fraudulently with intent as aforesaid pretended and represented to said captain that he had the right and power as such officer to impose said fine upon him and collect the same from him, whereas he neither was such officer nor had he any such right or power ; and from said false and fraudulent pretense and representation of the defendant said captain did believe the defendant was such officer and had such power and authority as aforesaid; that said captain thereupon, at said hour of eleven o’clock, in consequence of said order delivered to him as aforesaid, and of said pretenses and representations of the defendant and of his belief therein, caused as aforesaid, and of the threats and intimidations of the defendant as aforesaid, was induced and compelled to haul, and did haul, his said brig away from said wharf, contrary to his own mind and will, and contrary to the mind and will of the plaintiff, and said canal boat mentioned in said order then and there by direction of the defendant, claiming to be an officer as aforesaid, entered upon and occupied so much of said wharf of the plaintiff that said brig could not return thereto. Whereby, and by means of the acts and misconduct of the defendant as aforesaid, said captain was prevented from using said wharf by lying with said brig thereat and discharging said cargo thereon, and the plaintiff was wrongfully and unjustly deprived of his just reward and gain, amounting to one hundred dollars and more, which he might and otherwise would have received for the said use of his said wharf and from his said contract with said company and from his said employment.</p> <p>There were several other counts in the declaration not varying materially from the first.</p> <p>The case was tried to the jury in the city -court, on the general issue, with notice of a claim of lawful authority for doing the acts complained of.</p> <p>On the trial the parties respectively offered evidence pertinent to the issue; but the plaintiff did not claim to recover for any loss or damage on account of his contract with the gas company. The defendant-also offei’ed evidence to prove that the brig extended from fifteen to twenty-seven feet in front and along the side of the wharf of Miller & Go., which was about one hundred and forty-five feet in length ; that on the 25th of September a barge about ninety feet in length came into the harbor, loaded with grain for Miller & Co., which they were desirous of having unladen at their wharf, and that after the refusal of the captain of the brig to move the brig, Miller & Co. requested the defendant to order the captain of the brig to drop astern, far enough to enable the barge to discharge her cargo at their wharf. The defendant also claimed, and offered evidence to prove, that in the matters in dispute between the parties he acted in good faith, without any malice or fraudulent intent towards the plaintiff, but in the belief, that he was doing his duty as a public officer of the city. It was admitted by the plaintiff that the defendant was the only person appointed superintendent of wharves in the city, and by the defendant that a compliance with the order would have removed the brig so far astern that the remainder of her cargo could not have been discharged upon the plaintiff’s wharf.</p> <p>Upon the whole case the defendant claimed, and requested the court to charge the jury :</p> <p>1st. That if the written order set forth in the declaration was given by the defendant to the master of the brig, and if the master removed the brig from the plaintiff’s wharf in consequence of the order, yet if the defendant had not, at that time, authority to issue any such order, the master • was not bound to obey the same, and the plaintiff cannot recover in this action.</p> <p>2d. That the allegations in the first and second counts, that the defendant did the acts complained of fraudulently and with intent to defraud the plaintiff in the manner alleged, are essential allegations, and the jury must find them proved in order to render a verdict for the plaintiff.</p> <p>3d. That the allegation that the defendant did the act complained of in the third count maliciously, and with intent to defraud the plaintiff in the manner alleged in that count, is an essential allegation, and must be proved to entitle the plaintiff to a verdict.</p> <p>4th. That if the jury find from the evidence that the acts complained of in the declaration as having been done by the defendant, were done by him without any intent to injure the plaintiff, or to deprive him of any profits or pecuniary benefit, the plaintiff cannot recover.</p> <p>5th. That if the jury find that the defendant believed that he was acting in the line of his- power and duty as a public officer, in doing the acts complained of, and did such acts in good faith, without any fraudulent intent or malice towards the plaintiff, then the defendant is entitled to a verdict, although his appointment as such officer is invalid, and he was not, in law and in fact, such officer.</p> <p>The court declined to charge the jury in accordance with the first claim of the defendant, but charged them in conformity with the second and third claims; also, that the question of malice was a question of fact for the jury to find, and might be inferred from the want of just or probable cause, but that such inference might be rebutted; that the term “malice” in its legal significance as applicable to torts might be defined to be the doing of any act injurious to another without just cause, and did not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition ; that upon the question of malice as alleged by the plaintiff, the jury should take into consideration, in connection with the order, the acts and representations of the defendant accompanying the same, and that it was not enough for the defendant simply to have believed that he had authority to make the order complained of, and that he made the same in good faith, but that he was bound to act with reasonable- caution. The court declined to charge the jury as requested in the fourth and fifth claims of the defendant. As to the authority of the defendant to do the acts complained of, the court instructed the jury that the defendant was a lawful superintendent of wharves within the city, but had no power as such to make an order that the brig should be removed from the plaintiff’s wharf to make room for the barge at the wharf of Miller & Co.</p> <p>The jury returned a verdict for the plaintiff, and the defendant filed a bill of exceptions.</p> <p>The defendant also filed a motion in arrest of judgment for the insufficiency of the declaration, which motion was overruled by the court.</p> <p>He then brought the record before the Superior Court for revision, by a motion in error, and the case was reserved by that court for the advice of this court. The errors assigned were, the overruling of the motion in arrest of judgment, and the instructions of the court to the jury, and the omissions to instruct them as requested, as above stated.</p>

<p>Trespass on the case for a malicious prosecution, tried to the jury in the Superior Court before Minor J. Verdict for the defendant, and motion for a new trial by the plaintiff for errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.</p>

The case was tried in the Superior Court before Minor, J., and the decree of the probate court reversed. The appellee filed a bill of exceptions and brought the record before this court by a motion in error. The case is sufficiently stated in the opinion.

Bill in equity. The Superior Court, (Pardee, J.,) dismissed the bill and the petitioner moved for a new trial. The case is fully stated in the opinion.

Amicable submission to the Superior Court on an agreed statement of facts. In 1863 a limited partnership was formed at Bridgeport in this state, under the name of Lacey, Meeker & Co., in which Stillman S. Clapp was a special partner, and the defendants were general partner's. Clapp died in 1865 and the plaintiff •was his executrix. The partnership expired by its own limitation on the 30th of June, 1868.

Bill for the foreclosure of a mortgage executed by the respondent Beecher to the petitioners.

Petition under the Flowage Act; brought to the Superior Court in New London County. Both parties were corporations, the petitioners of this state and the respondent corporation of the state of Rhode Island, the latter having its principal office and the residence of its stockholders there.

Information for burglary, tried in the Superior Court in New Haven county, before Phelps, J. Verdict guilty, and motion for a new trial for error in the charge to the jury. The case is sufficiently stated in the opinion.

Bill in equity for a discovery, and to compel the respondent to account for and pay over to the petitioner the avails of certain real estate claimed to have been obtained from him by fraud ; brought to the Superior Court in New Haven county. The respondent remonstrated against the acceptance of the report of a committee by whom the facts were found, on the ground of the admission of improper evidence.

Ejectment, brought to the Superior Court in New Haven county, and tried on the general issue closed to the court, before Phelps, J. The declaration alleged that the plaintiff on the 1st day of May,… Held: that the plaintiff could not recover for the trespass in the present action and rendered judgment for the defendants. The plaintiff thereupon moved for a new trial.

<p>A decree of a court of probate approving a will, not appealed from, does not render valid void bequests in the will.</p> <p>A decree of a court of probate approving a will containing void bequests, is not erroneous because it is general and does not limit its approval to the valid bequests.</p>

Petition for a highway, brought to the Superior Court in New Haven county. The respondents pleaded in bar the judgment of the same court against the petitioners in the case of Hoadley and others v. The Town of Waterbury, reported in 34 Conn. R., 38.

Writ of Habeas Corpus, issued by the Superior Court in New Haven county against the respondent, who was keeper of the New Haven alms-house and as such held the petitioner in custody as a pauper. The court ( Granger, J.,) sustained the return of the respondent and remanded the petitioner to his custody. The court having made a special finding of the facts and placed them upon the record, the petitioner brought the case before this court by motion in error.

Bill for a foreclosure, brought to the Superior Court in New Haven county and tried before (Granger, J. The facts were found by a committee. .Decree for petitioners, and motion in error by the respondents. The case is sufficiently stated in the opinion.

Assumpsit, brought originally to the city court of the city óf Waterbury, and by a motion in error of the plaintiff, from a judgment of that court for the defendant, to the Superior Court in New Haven county, where it was tried before Phelps, J. The declaration was as follows: “ The plaintiff declares and says that the defendant in and by a certain writing or note, under his hand, by him well executed, dated the 17th day of J une, 1867, promised the plaintiff to pay to him,…

Bill to redeem mortgaged premises, brought to tlie Superior Court in New Haven county, and reserved on facts found for the advice of this court. The point decided in the case will be fully understood from the opinion without a statement of the facts.

<p>Assumpsit for work and labor, with a process of foreign attachment, brought by appeal from a justice of the peace to the city court of the city of Waterbury. The defendant pleaded a tender of $17.85, the amount of the indebtedness as set forth in the bill of particulars, which plea was traversed and issue closed thereon to the court. The city court made the following fiuding of facts and made the same a part of the record.</p> <p>The writ was issued on the 14th of July, 1868, and had a factorizing process attached to it, directing the officer serving the same to leave an attested copy of -the writ and process with James O. Scovill, of the town of Waterbury, as the debtor of the defendant, and further directing the officer to summon said Scovill to appear at the court to which the writ was returnable. On the day on which the writ was issued it was placed in the hands of an officer for service; and on the 15th of July the officer left in service with said Scovill a true and attested copy of the writ and process. After the service on the garnishee, and before the service of any copy on the defendant, and within the time allowed by law for such service, the defendant met the plaintiff upon the street in Waterbury, and stated to him that he was ready to pay his account, meaning thereby to pay to the plaintiff the sum of $17.85, which was the amount of the debt. The plaintiff replied', “ There have been costs made, and you have got to settle with my attorney, Mr. Boughton.” The defendant then had in his possession more than enough to pay the $17.85, and would have then and there paid the plaintiff, but for his reference to Mr. Boughton and if the plaintiff had been willing to receive the same, the sum of $17.85 and no more. No copy of the process was left in service with the defendant _ until after the above conversation, on or about the 25th of July, 1868. Upon these facts the defendant claimed that a sufficient tender was made by him to the plaintiff of all that was due him. But the court held that it was not a good tender in form, and that, if good in form, it was insufficient in not tendering the amount of costs made by the service on the garnishee, amounting to $3.27. And the court rendered judgment for the plaintiff to recover $17.85 debt and his costs.</p> <p>The defendant brought the case by a motion in error before the Superior Court in New Haven county, which (Phelps, J.,) reversed the judgment of the city court, and the plaintiff brought the record by a motion in error before this court.</p>

Trespass qu. cl. fr., brought to the Superior Court in New Haven county and tried to the jury before Granger, J. Verdict for defendant and motion for a new trial by the plaintiff. The point decided by the court will be sufficiently understood from the opinion, without a statement of the facts, which are complicated.

Assumpsit, to recover money paid as income tax to the defendant, a collector of the internal revenue of the United States, and claimed to have been illegally exacted; brought to the Superior Court in Middlesex county, and tried to the court on the general issue, with the following notice: The plaintiff will take notice that on the trial of the above cause the defendant will claim and give in evidence, that on the first day of July, 1865, and for a long time previous thereto,…

Action on the case, tried to the jury in the Superior Court, before Granger, J., on the general issue, and verdict for the plaintiff. The defendant moved for a new trial. The case is sufficiently stated in the opinion.

Debt on a probate bond, executed by the defendant as executor of the will of Aaron Turner ; brought to the Superior Court and tried on the general issue with notice closed to the court, before Minor, J. The suit was brought for the benefit of Thomas W. Bussing, a creditor of the estate of Turner.

Motion in error from the judgment of the Superior Court (Minor, J.) sustaining a remonstrance of the respondents against the acceptance of a re-assessment of highway damages by a jury, and dismissing an appeal for such re-assessment. The case is fully stated in the opinion.

<p>Assumpsit, on a note of the defendant to the plaintiff for $850, dated January 19th, 1864, payable in thirty days "with interest; tried to the jury in the Superior Court, before Granger, J.</p> <p>The defendant’s plea was the general issue, with the following notice:—</p> <p>The plaintiff will take notice that on the trial the defendant will offer evidence to prove that on the first day of November, 1865, he was and now is the owner of a certain farm, on which farm on said day was certain live stock, consisting of cows, oxen and other animals, and large quantities pf hay and grain, with carts, wagons, and all necessary farming utensils, all belonging to the defendant. That on said 1st day of November, 1865, one Henry Albin'and the defendant agreed that Albin should occupy and work the farm for one year from said 1st day of November, 1865; [here setting forth the several duties assumed by Aldin under the contract in the occupancy and management of the farm;] that after-wards in the month of January, 1866, the plaintiff then being the holder and owner of said note, agreed with the defendant and with said Albin, that he, the plaintiff, would jointly with said Albin take said farm and said stock on the same terms and conditions as above stated, and that said agreement should date from November 1st, 1865 ; provided only and on the express condition, promise and agreement then made by the plaintiff, that said note, and all balances if any that might then be due on the same, should not be collected, and payment of the same should not be required of the defendant, until after the 1st day of November, 1866, and that all and any balance, if any there might be, due on said note, should be liolden as security to the defendant and be applied by him for any and all damages resulting to him by reason of the non-fulfillment by said Albin and. Williams, or either of them, of said contract and agreement. And the defendant says, that relying on said promises and agreement, he allowed said Albin and Williams to use and occupy said house and premises, and feed out said hay and grain, and to appropriate as they saw fit, and from time to time, as received, all proceeds from the sales of the milk and other farm produce, to their own private and personal use, and amounting to the sum of more than $500. And the defendant says that said Albín and Williams, afterwards, on the 1st day of March, 1866, in violation of said contract and agreement, wilfully and fraudulently left the house and said farm, and abandoned all care and custody of the same and of the stock on said farm, and neglected to perform any of the stipulations of said contract on their part to be performed, and by so doing caused the defendant to suffer great loss and damage thereby, amounting in the whole to more than $500. And the defendant here asks that said damages arising from the breach of said contract may be set off against any balance remaining due on said note, and that judgment for the balance be rendered for the defendant.</p> <p>On the trial the defendant offered in evidence a written contract, agreeing with the description in his notice, executed by himself and Albin on the 1st day of November, 1865, and afterwards, with the consent of the parties, altered so as to include the plaintiff as one of the parties, and then by him executed. And the defendant offered evidence . to show that at the time of the execution of the contract by the plaintiff, the plaintiff by a separate agreement with the-defendant agreed to leave the note in the hands of the defendant for security until the end of the year, as set forth in the notice. To the admission of this evidence the plaintiff objected upon the ground that it varied and enlarged the terms of the written contract, but the court admitted the same.</p> <p>The defendant then offered evidence to prove that the plaintiff and Albin, about the 6th of March, 1866, repudiated the contract, and refused any further to perform the same, and offered proof of the damage sustained by him in consequence, which he claimed the right to set off against the note. And the defendant requested the'court to charge the jury that if they should find that the plaintiff agreed to leave the note as security until the 1st day of November, 1866, and this suit was brought before that time, the plaintiff could not recover. The court charged the jury as follows:—</p> <p>1. That if the jury should find that by the agreement between the plaintiff and defendant, made about the time of the written contract between them, it was understood and agreed that any damages which might accrue by reason of the breach of the contract by the plaintiff should be deducted from the amount due upon the note, they might set off such reasonable damages as they might so find against the amount due to- the plaintiff on the note, and if in their opinion such damages were less than the amount due upon the note, they might deduct the same from the amount due upon the note, and render their verdict for the plaintiff to recover such balance as might be due.</p> <p>2. That the notice of the defendant did not in substance aver any agreement of forbearance to sue on the part of the plaintiff, but merely an agreement -on the part of the plaintiff to allow the defendant to offset any damages he might sustain by the plaintiff’s breach of the contract; and the contract having been broken on the 6th day of March, 1866, the defendant’s right of action, if he had. any, accrued immediately thereafter, and the plaintiff’s right of action, if any he had, commenced at that time.</p> <p>The jury returned a verdict for the plaintiff for $134 damages and costs, and the defendant-moved for a new trial.</p>