Volume 38 — Connecticut Reports

Assumpsit for supplies furnished to a pauper; referred by the Superior Court to a committee who found the following facts: The pauper, Jane E. Thompson, for the support of whom this action is brought, is the widow of Daniel Thompson. Daniel Thompson was born in Durham, in this state, in the year 1811. In 1885 he married Jane E. Thompson, with whom he lived in Durham until 1842, when they removed to the town of Westbrook, where they resided till 1852.

Assumpsit against the defendant as endorser of a promissory note; brought to the Court of Common Pleas in the County of New Haven.

<p>Assumpsit ; tried in the Court of Common Picas in New Haven county, (Bronson, J.,~) and reserved for advice on a finding of facts by the court.</p>

On the 15th day. of June, 1868, Bartlett Bent, Senior died at Middlefield in the probate district-of Middletown, leaving a widow, Hannah P. Bent, and two sons, Bartlett Bent, Jr., and Thomas S. Bent, his only surviving children and heirs at law. Bartlett Bent, Jr. had a wife, Sarah Bent, then living, each being about forty years old.

Grand juror’s complaint for keeping a house of .ill-fame; brought to a justice of the peace of the town of Meriden, who bound the prisoner over for trial before the Superior Court. The prisoner pleaded in abatement, demurred to the complaint, and moved to erase the case from the docket. The questions arising on these pleadings were reserved for advice. The points decided will sufficiently appear from the opinion.

General Assumpsit;.brought to the Court of Common Pleas in New Haven County, and tried to the court on the general issue with notice. The court found the facts, and rendered judgment for the defendants, and the plaintiff moved for a new trial.

Petition for an injunction to restrain the respondent from-excavating and removing earth from a highway in the city of New Haven; brought to the Court of Common Pleas in New Haven county, and reserved for the advice of this court.

Assumpsit to recover for subscriptions to tbe capital stock of tbe plaintiffs, brought to the Court of Common Pleas in New Haven county. On the trial to the court on 'the general issue with notice, the court, (Bronson, Ji,) found the following facts, and reserved the cases for the advice of this court. The two cases involved the same principle, and were argued together.

Action on the case founded upon the statute, (tit. 1, ch. 15, §370,) tried in the Court of Common Pleas for New Haven county, (Bronson, J.,~) on the general issue closed to the court. The court found the issue for the plaintiff, and the defendants moved in arrest of judgment for the insufficiency of the declaration.

Weit op eeeoe to reverse a judgment of a justice of the peace in summary process, brought to the Court of Common Pleas in New Haven county. The Court of Common Pleas, (Bronson J.,j reversed the judgment of the justice of the peace, and the defendant in error brought the record before this court by motion in error.

Replevin by the plaintiff as trustee of the insolvent estate. of Jewett G-. Smith, for property attached by the defendant, a sheriff’s deputy, as the property of Smith ; tried in the Court of Common Pleas in New Haven county, (Bronson, J.,') facts found and reservation for advice.

Debt on bond against the defendant as administratrix of Walter S. Peck, deceased, brought to the court of Common Pleas in New Haven county. The court, (Bronson, J.,) rendred judgment for the plaintiff, and the defendant brought the record before this court by a motion in error.

Trespass on the case ; brought to the Superior Court in New Haven county, and tried before Phelps, J. The defendant was incorporated in 1867, and accepted the provisions of its charter, and has since that time, by its properly constituted authorities, acted under and in pursuance of its charter and of certain by-laws and ordinances authorized by and enacted under it.

Petition brought to the Superior Court in Middlesex county by two of the executors of the will of S. Wadsworth Russell, late of Middletown, deceased, praying for a judicial construction of the will, and for advice in the execution of their trust. The will was as follows: “I, Samuel Wadsworth Russell, of Middletown, in the county of Middlesex, and State of Connecticut, being of a sound and disposing mind and memory, do make and ordain this my last will and testament. 1.

Petition for a mandamus to compel the respondent, a justice of the peace, to make a true record of a judgment rendered by him, and to furnish the petitioner a copy. The petition was brought to the Superior Court for Tolland county, which issued an alternate mandamus, to which the respondent replied that he had made a true record of the judgment, and furnished the petitioner a copy, on which issue was joined.

Assumpsit for money liad and received; brought to the Fuperior Court in Tolland county, facts found by an auditor, and judgment for the plaintiff. Motion in error by the defendant. The case is sufficiently stated in the opinion.

Trespass on the case, for the diversion of a stream of water; brought to the Superior Court in the county of Hartford, and tried to the jury.

Petition por an attachment for contempt for violation of a temporary injunction against the use of certain trade marks and a trade name. The Superior Court found the respondents guilty of the alleged contempt, and reserved the following questions for the advice of this court, viz: ' 1.

Indictment for murder ; tried to the jury in the Superior Court for Hartford county, upon the plea of not guilty, before Carpenter and Minor, Js. The prisoner was charged with the murder of William Willard, warden of the state prison, within which the prisoner was at the time confined as a convict.

Action on the case against the defendants as common'carriers, for the loss of twelve bales of cotton; tried in the Superior Court (Pardee, J.) to the jury, who returned a verdict for the defendants. The plaintiffs moved for a new trial for errors in the charge. The ease is fully stated in the opinion.

Assumpsit, for salary claimed to be due the plaintiff for services as a clergyman; brought tp the Superior Court for Hartford.county, and tried to the jury on the general issue with notice, before Pardee, J. The bill of particulars filed in the case w;as as follows: ' To services as preacher before settlement from July 28th, 1866, at $10 per Sabbath and hoard, seven Sabbaths, $70.00 To balance due for board, 3£ weeks, at 4.50, 15.75 To salary after settlement as agreed, for…

Writ op error to the Court of Common Pleas for Hartford county, to reverse a judgment of a justice of the peace. The original suit was returnable before the justice on the 13th day of November,. 1869, when the parties appeared and joined in the general issue closed to the jury, and on motion of the plaintiffs a jury was ordered to be summonéd to appear on the 27th day of November, 1869, to which day the court was adjourned.

Assumpsit on a policy of insurance, tried in tlie Superior Court on the general issue closed to the jury, with notice of special matters of defence.

Assumpsit tried in the Superior Court (Pardee, J.) on the general issue closed to the jury, with notice. Verdict for the plaintiff, and motion for a new trial for errors in the charge of the court. The case is sufficiently stated in the opinion.

Scire facias on’a judgment against the defendant as administrator of the estate of James White, deceased.

Action on the case against the defendant as sheriff of Hartford county, for the default of his deputy; brought to the Court of Common Pleas in Hartford county, and tried on the general issue closed to the court, with notice of the. statute of limitations. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Assumpsit for goods sold and delivered; tried in the Court of Common Pleas for Hartford county (Briscoe, J.'), facts found and reservation for advice. The case is fully stated in the opinion.

Assumpsit for money had and received, brought to the Court of Common Pleas for Hartford county. On the trial the' court (Briscoe, J.) found the following facts: The defendant is a savings bank duly incorporated by the legislature of this state by special charter in 1853, and located in the village of Collinsville in the town of Canton, and was duly organized under its charter, and commenced business in the same year.

Assumpsit brought to the Superior Court in New-London county, and tried to the jury on the general issue, before Parle, J. The declaration alleged “ that on or about the 1st day of March, 1868, in consideration that the plaintiff, at the special .instance and request of the defendants, would erect a suitable building on the premises of the city of Norwich, near the proposed water reservoir of said city, for the boarding of not less than one hundred men per day, and would…

Petition for a new highway; referred by the Superior Court to a committee, who reported that in their opinion the highway would be of common convenience and necessity, and thereupon surveyed and laid out the highway as prayed for in the petition.

Trespass and trespass on the case, for injury to the plaintiff’s property by the alleged negligence and misconduct of firemen of the defendant, while engaged in extinguishing a fire; brought to the Superior Court for New London county, and tried to the court on the general-issue. The court (Seymour, J.') found the facts and reserved the case for advice. The case is sufficiently stated in the opinion.

Trespass for an assault and battery ; brought to the Superior Court in New London county, and tried to the jury, on the general issue, before Phetys, J. Upon the trial the plaintiff offered in evidence the deposition of one Rhoda Straw of Northfield, in the state of Vermont.

Complaint under the 22d, 23d, 24th and 25th sections of the act relating to taverns and spirituous liquors, for the seizure and confiscation of liquors claimed to be kept for unlawful sale; brought before a justice of the peace and appealed by Samuel G. Stanton, who claimed to be, and appeared before the justice as, the owner of the .liquors, from a judgment of confiscation by the justice to the Superior Court in New London -county.

General Assumpsit, brought to a justice of the peace for New London county. The declaration contained six common counts in each of which the amount of indebtedness was alleged to be fourteen dollars, and concluded with demanding twenty-five dollars damages.

Replevin for a colt, brought to a justice of the peace, appealed by the plaintiff to the Superior Court, and* reserved for advice. The case is fully stated in the opinion.

Assumpsit for money paid for the support of paupers; brought to the Superior Court and tried to the jury before Granger, J. The jury returned a verdict for the plaintiff, and the defendant moved for a new trial for error in the charge of the court. The case is sufficiently stated in the opinion.

Trespass for entering upon tíre plaintiffs’ land, and pulling down and rebuilding a shed standing thereon; brought to the Superior Court, and tried on the general issue closed to the court ( Cf 7-anger, J.') On the trial the court found the following facts: Samuel Steele by warranty deed dated November 28, 1825, conveyed to Roswell Abernethy, the plaintiffs’ grantor, the premises in question, with the following exception in the deed: “ except that the presbyterian society…

Ejectment, brought to the Superior Court, and tried on the general issue closed to the court (Loomis, J.) Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Ejectment: tc recover possession of a tract of land in the town of Litchfield; tried to the court (Loomis, J.~) on the general issue with notice.

Debt on a probate bond; tried on tbe general issue closed to tbe court (Foster, J.), and reserved on facts found for advice. On the 7th of October, 1867, the defendant, Solon B. Johnson, was duly appointed administrator on the estate of Sophronia J. Urmston,- by the plaintiff as judge of the court of probate for the district of Cornwall, and gave the usual bond as such administrator.

Assumpsit on an award of arbitrators, witb counts for money paid and work and labor done; brought to the Superior Court, and tried to the court (Roster, J.) on the general issue. The court rendered judgment for the plaintiffs, and the defendant brought the record before this court by motion in error. The case is sufficiently stated in the opinion.

Assumpsit, brought before a justice of the peace, and appealed by the defendant to the Court of Common Pleas for Hartford county. The Court of Common Pleas (Briscoe, J.) found the following facts, and thereupon reserved the question what judgment ought to be rendered for the advice of this court.

<p>Scire facias in foreign attachment; brought to the Court of Common Pleas for Hartford county, and tried on the general issue closed to the court (Briscoe, J.') The court rendered judgment for the defendant, and the plaintiffs moved for a new trial.</p> <p>On the 24th of September, 1870, Charles C. Soper, the defendant in the original suit, entered into a contract with the city of Hartford to build a sewer in that city. By the terms of the contract the sewer was to he completed on or before the 15th of October, 1870, and Soper was to receive for building it one dollar and seventy-two cents per lineal foot. The sewer was completed November 14th, 1870, and the sum of $1,204.58 became due upon the contract from the city, and the common council of the city on that day passed the following vote : “Voted, that the city auditor be and he hereby is directed to draw an order on the city treasurer, for the sum of twelve hundred and four dollars and fifty-three cents in favor of 0. C. Soper, the same being in full of his account for the construction of the sewer in Russ street.” The copy of the writ in the original suit was left in service with the city on the 28th of October, 1870, at which date the work upon the sewer was about half done. The defendant had sometimes paid persons employed in doing work of this character before the entire contract was completed, but no such payments were made or orders drawn without an order of the common council. No such order was made or payment required in this ease until after the sewer was built.</p> <p>The plaintiffs claimed as matter of law that the contract was apportionable; and that the service of the writ of foreign attachment upon the defendant rendered the defendant liable to pay to the plaintiffs such portion of the amount due on the contract as would satisfy the plaintiffs’ claim.</p> <p>The defendant claimed that the contract was entire, and that no debt was due from the defendant to Soper when the copy in the original suit was left in service with the defendant.</p> <p>The court did not decide, as claimed by the plaintiffs, that the contract was apportionable, but decided, as claimed by the defendant, that the contract was entire, and rendered judgment for the defendant.</p>

<p>Upon the application of A a policy of insurance upon his life was issued by a life insurance company, for his own benefit. A afterwards surrendered this policy to the company, and at his request a second policy was issued in lieu thereof, similar in all respects to the first, except that it was payable to B to whom A was engaged to be married. The second policy was by direction of A placed in the hands of C as a depositary for B. A afterwards, without the knowledge or consent of B, obtained possession of the second policy, and surrendered it to the company, who cancelled it and issued in lieu thereof a third policy, similar to the others, except that it was payable to B, to whom A was indebted and intended it as security for such indebtedness. B paid one premium upon the third policy. At the time the second and third policies were issued M’s health was such that he was unable to pass the re quired medical examination for a new policy.</p> <p>In a bill in equity by B against the company and B, who resided beyond the jurisdiction of the court, and although notified of the pendency of the suit did not appear, praying that the company might be ordered to pay the avails of the third policy to her, and enjoined against paying them to B, it was held that there was an executed gift of the second policy to B; that the consideration for the third policy was the surrender of the second, and that therefore B was equitably entitled to the benefit of the third policy, and was entitled to a decree ordering the avails of it paid to her, less the amount of the premium paid by B.</p>

<p>Under the statute providing for the appointment of guardians by the court of probate, if a minor of lawful age shall select as guardian a proper person in the judgment of the judge of probate, the judge has no discretion in the matter, hut it is his duty to approve such choice, and make the appointment accordingly.</p> <p>The judgment of a judge of probate in disapproving of the choice sb made by a minor, must be based upon facts shown, or within his knowledge, and is the subject of review; by the Superior Court on appeal, like all other decisions of the court of probate, where it is not otherwise specifically provided by law.</p> <p>The matter of costs in such appeals is discretionary with the Superior Court, and is not the subject of review by this court.</p>

Bill in equity by a guardian and ber wards against the respondent, as executrix of Denison Olmsted, to compel her to pay damages for the breach of a bond executed by Denison Olmsted, as surety for Lucius D. Olmsted, then guardian of the present wards of the petitioner; brought to the Superior Court in New Haven county.

Bill in Equity by tbe executors of the will ot William Bostwick, praying for advice in the construction of the will; brought to the Superior Court in New Haven county, and reserved for advice on facts found by a committee.

Trespass on the case, for injuries to the plaintiff by the negligence of a fireman of the defendant while employed in extinguishing a fire; brought to the Superior Court in New Haven county, and reserved on facts found for advice.

Indictment for murder; brought to the Superior Court in New Haven county. The accused moved to quash the indictment, and also filed a special demurrer, on the ground that the degree of murder was not specified. The questions of law arising on these pleadings were reserved’ for advice.

Iñeormation for illegal voting; brought to the Superior Court in New Haven county, and tried on the plea of not guilty, before Carpenter, J. The information contained two counts.

Ejectment ; brought to the Superior court in New Haven county, and reserved for advice upon the following facts found by the court. In the year 1832, one Philomela Hughes became the owner in fee by deed from the children of Marcus Miles, of one undivided fourth part of the demanded premises.

Bill in equity ; brought to the Superior Court in New Haven county, and reserved, on demurrer to the bill, for the advice of this court.

The appellee immediately went into possession of the same, cut down trees, repaired the fences, grafted the apple trees thereon, and has remained in the possession thereof to this time, conducting as and claiming to be the owner. By the terms of this parol agreement, the appellee was to pay three, hundred dollars for the land, in annual instalments of one hundred dollars each, and interest.

<p>Where a creditor or purchaser obtains the estate of an insolvent debtor at an under rate, there is a violent presumption of a secret trust and fraudulent intent, and such presumption unless rebutted is conclusive.</p>

<p>Assumpsit and debt, to recover the amount of benefits assessed upon the defendants for paving a part of Chapel street in the city of New Haven; brought to the Superior Court, and reserved for advice upon the following facts found by a committee.</p> <p>The plaintiff and defendant are corporations duly incorporated by the legislature of this state. The defendant was duly organized pursuant to the provisions of its act of incorporation, and had, prior to the passage of the orders of the court of common council hereinafter referred to, constructed a horse railway through certain streets of the city of New Haven, and among others through that portion of Chapel street in said city lying between Union and East streets, and was previous to and at the time of said orders, and is now, in the possession and enjoyment of a city horse railroad with its appurtenances. The property of said railroad company, in addition to their franchise, consists of a lot of land, with a stable and out-buildings thereon, outside of the limits of the city of New Haven, of horse railroad cars, of horses used to draw those cars, and of a railroad track composed of wooden sleepers and ties, upon which are laid iron rails fastened thereto by spikes.</p> <p>On the 21st of June, 1866, the court of common council of the city of New Haven passed the following order or vote:</p> <p>“ Ordered, That, whereas the court of common council of the city of New Haven has heretofore, to wit, on the 24tli day of July, 1865, authorized the road commissioners to contract for a Belgian pavement, to be laid in Chapel street between Union and East streets, and</p> <p>Whereas, in the opinion of this council, the public good requires that the pavement so authorized to be contracted for be laid upon said street.</p> <p>Therefore it is ordered, that Chapel street he paved according to the aforesaid order, and a proportional and reasonable part of the expense thereof be assessed upon the persons whose property is especially benefited thereby; and the particular amount to be paid by such person or persons shall be estimated, the assessment shall be made, published and collected or secured, as the case may be, in the same manner in all respects as provided by the fourth and fifth sections of the resolution passed May Session, 1862, and approved June 27tli, 1862, making the city of New Haven a highway district.”</p> <p>Pursuant to this order that portion oí Chapel street lying between Union and East streets was paved, by order of the road commissioners of the city oí New Haven, with a stone pavement known as the Belgian pavement, at the expense of the city. .</p> <p>On the 24th of April, 1867, the court of common council passed the following order or vote:</p> <p>“ Ordered, That the action of the road commissioners in paving Chapel street between Union and East streets with Belgian pavement is hereby approved.</p> <p>And be it further ordered, that the sum of ten thousand, one hundred fifty-three dollars and twelve cents, being a reasonable proportion of the total expense of paving Chapel street between Union and East streets with Belgian pavement, according to the order of the common council, be and the same is hereby assessed upon persons whose property is especially benefited thereby, and who are hereinafter particularly named. And that the particular amount of such assessment to be paid by every such person, is hereby estimated, assessed and declared to be as follows : such amount being a proportional and reasonable part of the whole amount assessed to all such persons, to wit:</p> <p>Sundry persons named, assessed</p> <p>to the amount of §</p> <p>Fair Haven and Westville Railroad Co., 8,884.17”</p> <p>A copy of tire order passed on the 24th of April, 1867, was published for two weeks prior to the commencement of this action, in the New Haven Daily Register, and in the Daily Journal and Courier, two daily newspapers published in the pity of New Haven every day except Sundays. The amount assessed by the order passed on the 24tli of April, 1867, against the defendant, has never been paid by that company. The construction of the pavement did not benefit the land pr buildings belonging to the railroad company, or their cars, or the horses used to draw those cars, or the iron or wood work forming the track of the company, except as hereinafter stated. The pavement rendered it more easy to replace the defendant’s cars when off the track, but also operated to injure those cars by causing more frequent breakages of the flanges of the car wheels, and by causing a greater jar or shock to the cars when off the track, and the pavement was an injury to the horses of the defendant, in common with those of the traveling public, by causing horses travéling over it to become lame, and wear out sooner than if they traveled ■over an unpaved road. Before the construction of the pave-anent that portion of the street lying between the rails of the < defendant’s track, and immediately adjacent thereto, but ex■ceeding the distance of two feet outside of each rail, was liable to be, and was, dug out and carried away to the depth sometimes of five inches, by the passage of carriages and horses, so that the defendant was put to the trouble and expense of replacing the earth so dug out and carried away, and the portion of the pavement laid on said street, lying between the rails and immediately adjacent thereto, not exceeding two feet outside of each rail, prevented the digging out and carrying away of the earth, and saved the defendant the trouble and expense of replacing it, and in so far as the pavement saved the defendant said expense and trouble, it was an especial benefit to the railroad company, and rendered their franchise and property, to that extent, more valuable. The whole width of the pavement is thirty-one feet, six inches, the width of the pavement between the rails of the defendant’s track is four feet, six inches, and the total width of the defendant’s track from the outside of one rail to the outside of the other rail is five feet. The other persons assessed by the order of the common council are all owners of land adjoining said street and fronting thereon.</p> <p>The material portions of the charter of the city are as follows:</p> <p>“ Sec. 1. The court of common council of the city of New Haven may, whenever in its opinion the public good shall so require, order that any street or streets, highway or highways, now or hereafter existing .within said city, shall be paved, cobbled, macadamized, or otherwise improved: and may, upon the execution of any such order, assess upon the persons whose property is especially benefited thereby a proportional and reasonable part of the expense thereof, and may estimate the particular amount of such expense to be paid by every such person; said assessments to be made, published, and collected or secured, as the case may be, in the same manner in all respects as now provided by the fourth and fifth sections of the resolution passed May Session, 1862, and approved June 27th, 1862, making said city a highway district by itself; and all the provisions of said sections are hereby re-enacted, and made a part of this act.”</p> <p>The 4th and 5th sections of the act of June 27th, 1862, are as follows:—</p> <p>■ “ Sec. 4. Whenever any sewer, or other public work or improvement, shall have been laid out, constructed, or altered, by order of said court of common council, said court may assess a proportional sum of the expense of laying out, con. structing or altering the same upon any person whose property is especially benefited thereby, and may estimate the just proportion of such expense which such person shall pay: provided, however, that the sum or sums so assessed shall not become due and payable until said assessment shall have been published two weeks in two or more daily newspapers'published in said city; and provided further, that if any person shall be aggrieved by such assessment, he may apply for relief to the Superior Court, held within and for the county of New Haven next after said publication shall have been made, in manner and form as is provided in the thirty-sixth section of the charter of said city. And said Superior Court may, if judged expedient, set aside said assessment, and order a re-assessment, as provided in said-thirty-sixth section of said charter.</p> <p>Sec. 5. All assessments made under and in pursuance of the foregoing section of this resolution, shall be and remain a lien upon the property especially benefited by any such public work or improvement, until the same are paid ; which said lien may be enforced in the same manner as is provided in the thirty-ninth section of the charter of said city, in reference to liens for making side-walks; provided, however, that such lien shall not continue for a period longer than sixty days after the publication required by the next preceding section of this resolution, unless, before the expiration of that period of time, a certificate, signed by the street commissioner or by the mayor of said city, describing the premises on which the lien exists, and the amount claimed by said city, as a lien thereon, shall be lodged with the town clerk of the town of' New Haven; and provided further, that such lien shall cease to exist, whenever a certificate that it has ceased to exist, signed by the mayor or street commissioner for the time being, shall be lodged with said town clerk. All such certificates said town clerk shall record with deeds of land.”</p> <p>The 39th section of the charter is as follows : •</p> <p>“Said court of common council may, from time to time, order the proprietor or proprietors of lands or buildings fronting upon highways and streets in said city, to make, raise, level, pave or flag sidewalks and gutters in front of said lands or buildings, in such manner and within such times as said court of common council shall direct. If any such proprietor or proprietors shall neglect to perform the thing or things required by any such order, in the manner and within the time specified in such order, it shall be the duty of the street commissioner, at the expense of said city, to execute such order in the manner therein prescribed; and the expense incurred by said commissioner on account of said city in executing any such order, shall, from the time when such expense begins to be incurred, be and continue a lien of real incumbrance upon such lands and buildings in favor of "said city, and shall take precedence and priority of all other liens or incumbrances thereon, (except taxes due the state,) and the lands and buildings on which any such lien may exist shall be liable to be foreclosed in the same manner as if said lien were a mortgage on said lands and buildings in favor of said city, to secure the amount of such expense.”</p>

<p>Bill in equity to redeem mortgaged property; brought to the Superior Court for New Haven county, and reserved, on facts found, for advice. The facts are sufficiently stated in .the opinion.</p>

<p>Trespass on the case ; brought to the Superior Court in New Haven county, and tried on the general issue closed to the court. Facts found, and case reserved for advice. The m ' facts were as follows :</p> <p>The plaintiff is a practising physician. On the 24th of November, 1865, after visiting a patient in Naugatuck, he started in a chaise to return to his home in Watérbury. The horse driven by him was well broken, kind and gentle in every respect, except that he was easily frightened at unusual noises, especially steam whistles on locomotives and manufacturing establishments, which fault was well known to the plaintiff. The way taken by him led across the Naugatuck railroad near the station in Naugatuck, and also by the shop or factory of the defendants, situated about two hundred feet from the railroad, the front of the shop standing on the line of the street. The defendants’ steam-whistle was above the roof of a one story building, and fifty-four and a half feet from the line of the street. The main buildings were higher than the whistle, and were so situated as to be between the whistle and people in the street, except at one point where there was an opening between the roofs, which opening was nearly in a line with and between the whistle and the point in the highway where the plaintiff was when the whistle blew. The plaintiff left the house of his patient a little before 12 o’clock, noon. .He knew that it was nearly 12 o’clock, but supposed that he had ample time to get by the defendants’ factory before the whistle should blow, but did not look at his watch. There was another way from that .point to Waterbury, equally near and equally feasible, but the plaintiff mistakenly supposed that there would be a freight train at a small station above, which induced him to take the way leading by the defendants’ factory. As he was about to start, the regular passenger train left the Naugatuck station going north, passing by the house where the plaintiff then was, and in plain view of the horse, at a distance of about fifteen rods. That and other trains on that road usually blow the whistle when nearly opposite the place where the horse then stood, but it did not appear that it actually blew on that occasion. As the plaintiff started, his horse was nervous and excited, but was under the plaintiff’s control until he reached the railroad crossing. The ground descended nearly all the way, in some places quite steep, and the horse acquired considerable speed, and crossed the railroad at a rapid gait. As the wheels struck the railroad track, the horse was startled, and jumped, and immediately thereafter the defendants’ whistle blew for 12 o’clock. The horse at once became unmanageable. At that time two teams going in opposite directions had met, and were standing in the highway directly in front of the defendants’ factory. It was more feasible to pass the teams on the side next the factory, and there was ample space for that purpose if the horse could have been controlled; but the plaintiff, being unable to control him, and seeing that a collision was inevitable, jumped from the chaise, and the chaise immediately collided with one of the teams, and struck the ground near the plaintiff. The plaintiff struck the ground in front of and near to the defendants’ factory, the whistle continuing to blow until after the plaintiff struck. The defendants’ whistle was called a double whistle. It consisted of two whistles, placed at right angles with each other, both of an usual and ordinary-size and construction, and both fed from the same pipe. One produced a shrill, sharp, piercing sound, and the other a grum sound, but louder, and could be heard at a greater distance. Both were blown together, though not commencing at the same instant. They were on different keys, and the combined sound produced a discord; the discordant effect was greater near by than at a distance. Where the plaintiff was the sound was startling and terrific, and well calculated to frighten, to some extent, horses of ordinary gentleness. Other horses had been frightened at the same place, but it did not appear that any before had ever become unmanageable;' nor did it appear that the defendants had any knowledge that it had frightened horses, or that the whistle from its location or otherwise was dangerous. The two whistles had been used together only about twenty one months; previous to that the smaller and .sharper whistle had been used alone. The whistle was blown in the ordinary way, and there was no other intention or design on the part of the defendants, in the construction and operation of their whistle, than to produce a sound that could be distinguished from other whistles, and one that should answer the ordinary purpose of a steam whistle in such estab_ lishments. This whistle in itself was no more calculated to frighten horses than many others in use on other factories; nor as much so as locomotive whistles generally. But its location, in connection with the railroad crossing, the depot, the cars, and other objects usually being around railroad stations, caused it to be more dangerous than it would otherwise have been. There was no negligence either in the plaintiff or the defendants, except such as ought to be inferred from the facts found. The plaintiff was seriously injured and suffered great bodily pain, having been confined to his bed ten weeks and over, and almost entirely incapacitated for business for more than seven months, and is partially disabled for life.</p>

<p>Bill in equity, by the petitioner as executor of the will of Thomas D. Moss, deceased, for an injunction to restrain the levy of a tax -warrant; brought to the Court of Common Pleas for New Haven county, and reserved, on facts found, for advice. The case is sufficiently stated in the opinion.</p>

<p>Complaint for a libel and breach of the peace, brought to 1he City Court of the city of New Haven. The court found the prisoner guilty, and he appealed to the Superior Court.</p> <p>The caption of the' record of the judgment of the City Court was as follows: “At a City Court held at the city of Now Haven ibis 24th day of August, A. D. 1871, Present, Hon. Wm. W. Morse, justice of the peace, acting judge, holding said court.” In the Superior Court the following amendment to the copy •of the record of the City Court was filed and allowed:</p> <p>“ The judge of the City Court of New Haven, H. Lynde Harrison, being absent, and he not having requested in writing any justice of the peace residing in said town of New Haven to act in his place, and in the absence of the judge ¡of the City Court of the city of New Haven, and of a justice ¡acting as judge of said court by request and appointment of the judge, in writing; therefore the clerk of said City Court of New Haven, Julius Twiss, Esq., did request, in writing, William W. Morse, a justice of the peace residing in said town of New Haven, to act - in the place of the judge of said 'City Court, which request was as follows, to wit:</p> <p>New Haven, August 15th, 1871.</p> <p>Wm. W. Morse, Esq.,</p> <p>You are hereby requested to appear and act as judge of the Police Court of the city of New Haven, at 9-J o’clock A. M., August 16tli, 1871, in consequence of the absence and disability of Judge Harrison, and also to act as said judge until . Judge Harrison shall resume his place, or until further notice</p> <p>JULIUS TWISS,</p> <p> Clerk of the City Court of JSfeio Haven. </p> <p>And thereupon the said Wm. W. Morse, a justice of the -peace for-New Haven, residing in the town of New Haven, ¿id act in the absence of the judge of the said court, in the .place of the judge of said court, August 16, 17, 18, 21, 22, .23, 25, and 26, 1871. ■</p> <p>The above and foregoing is a true copy of record.</p> <p>Attest: JU'LIUS TWISS,</p> <p> Clerk ofjaid Oily Court of New Haven., </p> <p>The prisoner moved to erase the case from the docket of the Superior Court, for the following reasons: . ¡</p> <p>First, because the court before which he was tried was an / irregular and pretended court, not holden by H. Lynde Har-• rison, Esq., the only judge of said court, but by one William; W. Morse, who was never elected judge of the same by the; General Assembly. V</p> <p>Second, because said court is a court of limited jurisdiction, and if by any means said Morse could have authority to hold said court, it would be indispensable to show upon record how he acquired such authority, and particularly that he was a justice of the peace for New Haven county, residing in the town of New Haven, and that said Judge Harrison was in some way disabled from trying said cause or holding said court; and that said Morse had been duly requested in writing to act as judge; and that said request had been duly recorded; and that the disability of said Judge Harrison had not been removed before the trial of said cause.</p> <p>The Superior Court found the following facts, and thereupon reserved the case for the advice of this court.</p> <p>The record of the City Court, of which a copy was allowed by this court to be filed on the seventh day of the present term by way of amendment of the copy previously sent up by the clerk, was first completed by the clerk of the City Court on the 12th day of September, 1871, after the filing of the present motion to erase. Said clerk had 'the following minutes written by himself, and no other, to guide him in completing said record; first, the following entry made by him, contemporaneously with the occurrences therein noted, in the docket book of the City Court: “ New Haven, Aug. 16th, 1871, Wm. W. Morse, Esq., acting judge in consequence of the sickness of Judge Harrison, by written request from the clerk of said court, Julius Twiss, clerk, acted as judge Aug. 16,17 and 18, also Aug. 21, 22, 23, 24, 25, and 26.” Second, the original letter recited in the amended copy of record, which was preserved by the clerk in said book as a part of the minutes from which to complete the record in said case, that being the ordinary course, but not at that time attached thereto, or to anything else. Said letter was never copied at length anywhere on .the records of said City Court, until the completion of the record on the 12th of September. Third, the ordinary entries on the file and on the docket book itself, containing the names of the parties, the date of trial, nature of complaint, judgment rendered thereon, and notes of future proceedings.</p>

Assumpsit for money liad and received, to recover the avails of one hundred and seven bales of cotton; brought to the Superior Court in New Haven county, and referred to an. auditor, who found the following facts : The firm of O. A. Weed & Co. consisted, during the period of the transactions hereinafter stated, of Charles A. Weed and John H. McKee. McCombie & Child were during the same period commission merchants, doing business in the city of New York.

Five actions of replevin, brought to the Superior Court in New Haven county, and reserved for advice upon facts found by a committee. The facts are sufficiently stated in the opinion.

Ejectment ; brought to the Court of Common Pleas for New Haven county, and tried on the general issue closed to the court (Willey, I.), with notice of title in the defendant. The court found the following facts, and thereupon reserved the case for advice. This case was brought to the January term of the court, 1871, and judgment rendered for the plaintiff, the defendant making default of appearance; whereupon execution was issued, but not levied.

Assumpsit, by the trustee in insolvency of the State Fire Insurance Company, upon a promissory note given by the defendant for a subscription to the capital stock of the company; •brought to the Superior Court in New Haven county, and .tried on the general issue with notice closed to the court. The •court.found the following facts, and reserved the case for advice.

Tbespass qu. cl. fregit; appealed from the judgment of a justice of the peace to the Superior Court, and tried on the general issue closed to the jury, before Sanford, J., with notice of title in the defendant by adverse possession. The jury returned a verdict for the plaintiff, and the defendant moved for a new trial for error in the rulings and charge of the court.

<p>Information for keeping a house of ill-fame; brought to the City Court of Bridgeport, appealed to the Superior Court, and tried before Minor, J.</p> <p>On the trial the state offered evidence to prove that the accused kept a house reputed to he a house of ill-fame, resorted to for the purposes of prostitution or lewdness, to which evidence no objection 'was then or at any time during the trial made by the accused. The state further offered evidence to prove that such house was in point of fact a house of ill-fame, resorted to for the purposes of prostitution or lewdness.</p> <p>The state claimed that it was only necessary to prove that the accused kept a house reputed to be a house of ill-fame, resorted to for the purposes of prostitution or lewdness, to warrant the conviction of the accused, and that the state had proven more than was required of them, viz., that the accused had, in point of fact, kept a house of ill-fame, resorted to for the purposes of prostitution or lewdness.</p> <p>The counsel for the accused, neither during his argument nor at any other time during the trial, made any claim other or differing from, or inconsistent with, the aforesaid claims of the state, nor made any request to the' coui-t, written or verbal, with reference to these claims of the state, and did not at any time claim that the law was not in all respects as claimed by the state.</p> <p>The court charged the jury, that in order to convict it was necessary for the state to show that the accused kept a house reputed to be a house of ill-fame, resorted to for the purposes of prostitution or lewdness, and added that if the jury believed the testimony, the state had proven as a fact that the accused kept such house of ill-fame.</p> <p>The jury rendered a verdict of guilty, and the prisoner moved for a new trial for error in the charge of the court.</p>

Petition to set aside the proceedings of the selectmen of the town of Greenwich in laying out a highway; facts found by a committee, remonstrance by the petitioner to the acceptance of the report, and reservation for advice. The case is sufficiently stated in the opinion.

Trespass vi et armis, for ejecting the plaintiff from a railroad car of which the defendant was conductor; brought to the Court of Common Pleas, and tried on the general issue closed to the court, before Brewster, J. The court rendered judgment for the plaintiff, assessing the damages at $60, and the defendant moved for a new trial, for error in the court in-including in the damages the sum of $50 for expenses of ,the suit. The case is sufficiently stated in the opinion.

Trover to recover tlie value of certain bank bills ; brought to the Superior Court, and tried on the general issue closed to the jury, before Minor, J. On the trial it was admitted that the money described in the declaration belonged to the plaintiff, and was on the night of the 4th of November, 1865, stolen from him in Redding, by one Billy Lake, a colored lad, who had, before he left Bridgeport the June previously, occasionally boarded for short periods of time in the…

Assumpsit for demurrage on a cargo of coal; appealed from tlie judgment of a justice of the peace to the Court of Common Pleas, and tried on the general issue closed to the court, before Breivster, J. Judgment for the plaintiff, and motion for a new trial by the defendants. The case is sufficiently stated in the opinion.

Trespass qu. cl. for entering the plaintiffs’ land, and removing the curb and fixtures oí a well; brought to a justice of the peace, appealed to the Court of Common Pleas, and tried on the general issue closed to the jury, before Brewster, J. Yerdict for the plaintiffs, and motion for new trial by the defendant for error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Indebitatus assumpsit ; brought to the Court of Common Pleas, and tried on the general issue closed to the court, before Brewster, J. The bill of particulars filed was as follows: To furnishing and laying 22,000 bricks in mortar a $22, $484.00 To furnishing and laying 8 chimney-tops a $20, ■ 160.00 To laying foundations for chimneys a $5, 20.00 To furnishing and plastering 5,234 yards a 40 cts., 2,093.60 To extra labor for taking out and changing stairways and general loss…

General assumpsit ; appealed from the judgment of a justice of the peace to the Court of Common Pleas, and tried on the general issue closed to the court, (Brewster, J.,') with notice of tender. Philip B. Lever, of Stamford, in Fairfield county, on the first day of March, 1871, was owing the defendant a certain amount, and on that day the plaintiff legally attached all the goods and effects of the defendant in the hands of Lever.

• Trespass on the case, for the ejection of the plaintiff from the defendants’ cars by a conductor ; brought to the Superior Court, and tried on the general issue closed to the jury, before Minor, J. The court rendered judgment of non-suit, and the plaintiff filed a motion in error for the refusal of the court to set aside the non-suit. The facts are sufficiently stated in the opinion.

Ejectment ; brought to the Court of Common Pleas, and tried on the general issue closed to the jury, before Brewster, J. The demanded premises were a triangular piece of pasture land containing about six square rods, lying southwesterly -of the plaintiff’s other land, and enclosed with it.

Trespass on the case for obstructing a way; brought to the Court of Common Pleas, and tried on the general issue closed to the court, before Brewster, J. The way in question was a located and established cart-path or drift-way, suitable for the travel and passage of animals and vehicles at all times of the year, running southerly from the plaintiff’s land across the land of D. 0.

Trespass qu. el. fregit ; brought to the Court of Common Pleas, and tried on the general issue closed to the jury, ( Willey, J.S) with notice that the locus in quo was a highway. The jury returned a verdict for the plaintiff, and the defendant moved for a new trial for error in the charge of the court.

Petition by the receivers of the Stonington Bank, praying for advice in the distribution of the funds ; brought to the Superior Court for New London county, and heard before Sanford, J., who found the following facts : The Stonington Bank was incorporated by act of the legislature, in 1822. By the provisions of the charter the capital stock was to consist of one thousand shares of the par value of fifty dollars.