Volume 4 — Day's Connecticut Reports

WRIT of error. Cook brought his action rof debt on a bail bond, given to him as deputy sheriff, the condition of which was, that whereas Osborn was arrested at the suit of John MlLean, to appear at the county court in Fairfield county, in November, 1807 ; if he appeared, See. the bond was to be void.

WRIT of error. This was an action on the case. The declaration stated, that on the 4th of September, 1795, the plaintiff and John Taylor entered into a contract in writing, with the defendant, of that date, which was (]ujy executed under hand and seal, and had become J lost by time and some unforeseen inevitable casualty, the counterpart whereof was then in the hands of the de-feudant, and of the tenor set forth.

<p>terestthereon, although satisfaction may obtained bfor every breach tion. The obligee of a bond can recover no more than the penalty with in-</p>

This was an action qui tam, for taking excessive usury. The usury was alleged to have been taken of James „ Bancraft, on the 24th or June, 1805, tor the loan, lor-bearance and giving day of payment to him and one Thomas Bancraft.

This was an action of indebitatus assumpsit for money J had and received to the plaintiff’s use. y¡le defendants pleaded the general issue ; and, at the (.rial, the following facts appeared : The brig Hiram, « laden with a valuable cargo, and owned in equal parts a by Isaac Rileyt Lemuel Storrs and Joseph W, Alsop, (whereof John Stocking was master, and said Alsop supercargo,) was, in the year 1794, seized by a British 1 o n 1 i ship, carried into Bermuda, and condemned as…

<p>soner’s°'oatii ^red byajus" tice to the debtor; the creditor de-Sfmoneyw^A the gaoler for his support, and appealed; revision” decU ‘!etl „asaIn,t of the °*⅜ the support íer*whioh the oath, on the application of the debtor, was, a second time, administered to him by a justice ; the creditor made no new deposit or appropriation, but a balance of the sum before deposited remained in the gaoler’s hands, without having been countermanded ; and before the same was expended, the debtor departed from prison, and went at large : Héld^that this was an^escape.</p>

This was an appeal from a decree of probate establishing the last will and testament of Noah Norton, t , ., deceased. The appellee was the executor, and the appellant one of the heirs at law. The reasons assigned by the appellant were, first, that the testator was not of sound mind and memory; and, secondly, that the will was not witnessed by three witnesses. The court found the latter allegation to be true; and disaffirmed the decree of probate.

<p>All contract» Gainst their interest fti*6 noi<2 * sind ail contracts made by them with a semblance of are voidable-</p> <p>A parent, guardian, or master, having an infant under his care, and allowing him to contract, shall be personally liable for such contract of the infant, <■'</p> <p>The same evidence ought to be required of the confirmation of avoidable contract after full age, as of the execution of a new one.</p>

This was an action of ejectment for five sixth parts of J eight several tracts of land, lately the property of Jcrc~ ' , , , . wan HogabQQffl, deceased. The defendant pleaded the general issue. On the trial, the plaintiffs claimed title as heirs at law of Hogaboom; the defendant, in right of his wife, who was Pamela, Griffin, as devisee and grantee.

<p>The validity of a eommis* sion of bankruptcy, uiu?er the late bank-common latf nipt law el the United Htates, cannot he impeached before the arts.</p>

CASE stated. This was a scire facias against garnishees. The orx-ginal action was against Ebenrzer Wilson and Beniamin . . J Smith, describing them as absent and absconding debtors, in the capacity of executors of the last will of John Bird, late of Troy, in the state of jYew-York, deceased.

This cause was remanded to the superior court, by t|,e supreme court of errors, on reversal of a former 1 judgment. It was tried again on the same issue, and the same ^evidence, which, being particularly stated in the report of the case, ante, vol, 2. p. 483. it is unnecessary here to repeat.

<p>A justice of the peace, be-fm-.e ¾-h'-oi a te<l for ¿"bailable offence,is brought for examination, the7 examina c° tion1US ami take a recog;-sufficient sure-⅛⅛, tmra the prisoner, for his appear-</p> <p>If the prisoner neglects to appear the justice may ⅛* 'surede*' defeíilt'of'n'”1 pea ranee,may make the pro thereof; bunt launnecessary forhimtoren-that^the"1 reí cognisance U fpfieiled*</p>

<p>The sale and assignment of a promissory full6’ f°value thereof, by one assignee to a subsequent one, does not, of itself, imply a warranty that the maker, having had notice of such sale and assignment, shall not take a discharge from the</p>

WRIT of error. This was an action of book debt, brought by Tryon, the intestate, against Gilbert. The court referred the cause to auditors; before whom the plaintiff exhibited the following account. “ Dr. Eben. Gilbert (physician) to Ch. Tryon, jun. Cr. “ 1805, “ July 13th.

This was an action of assumpsit against the defendant; as endorsor of a promissory note. Held: that the endorsee might sue in his own name under special circumstances. Hoyt v. -Maltby, superior court, 1802; and, at any rate, the reason of the rule extends to our notes when negotiated, as much as to any paper. But it is said that the witness was offered to prove that the plaintiffs knew of the usury.

. This was an action qui tam on the statute against usury. The corrupt agreement, and the taking in pursuance thereof, were thus alleged: “ That at New-Haven, on the 8th of January, 1807, it was corruptly agreed by and between the defendant and one Moses Wheeler, that he the defendant would loan to said Wheeler the sum of eight hundred dollars, for the term of sixty or sixty-three days; and he the said Wheeler then and there usu-riously and corruptly agreed with the…

THIS was an action of debt to recover double the value of the interest which the defendant had in certain slaves, transported in the brig Heroine, whereof the defendant was sole owner and master, from .Africa to Ha-■vanna, and there sold, by the direction of the defendant, and for his benefit, contrary to the provisions of the act of congress of May 10, 1800.(b) The action was commenced March 31,1808.

<p>The privilege of a member of the general assembly, duringthe session, from ruits, extends to a -writ of error, though such writ be not returnable until after the termination of the session.</p> <p>A party entitled to such privilege may avail himself of it, by plea in abatement-</p>

WRIT of error. Rufus Wheeler, describing himself as a son and heir at law of Sheppard Wheeler, deceased* appealed trom several orders and decrees of the court of probate, viz. l.'The defcree of December '36th,- 1798,appointing com* nuSsbhers; ;; ⅜;-' 2. That oí March ith, 1800, accepting their report. 3. xhat of March 7th, ⅜800, ordering the sale of real éstate, and appointing John Denison, who was not the administrator, to sell the same. 4.

WRIT of error. This was an action of replevin, brought originally by Loomis against Tyler before Benajah Strong, Esq. a justice of the peace, for taking and impounding certain cattle, in the town of Coventry, on a certain day.

This was a scire facias against the defendant as garnishee of Gurdon. Manwaring, of JVew-York, an abs&rtt . . debtor. The defendant pleaded that he was not the agent or debtor of Manwaring, and had none of his ef-^ects ⅛ his hands. On trial to the jury before the superior court, it appeared that the previous proceedings had been conformable to the statute regarding foreign attach-*nents,(a) and that the defendant was indebted to Man-waring.

This was an action of indebitatus assumpsit for money had and received to the plaintiff’s use.

This was an action of assumpsit on a policy of insu-iance on the cargo of the ship Washington, warranted The defendants pleaded the general issue: and on . trial to the jury, it was proved that the ship with her eargo was captured, and carried into Antigua.

WRIT of error. • This was an action of assumfisit against the town of Huntington, to recover moneys expended by the town of Oxford, for the support of William Yeatcs, a pauper, and his family. Held: that the pauper, who was an idiot, had gained a settlement, not in her own right, but in her mother’s. As to the point in discussion, idiots and infants are upon the same footing: neither are persons sui juris.

<p>Tfic town cf Waterhury is bylaw obliged to maintain the bridge ⅛,, h^the ^IValerbur River Turn-</p> <p>act incorpora-provided'that all bridges aver such rivers and streams as towns had not previously by Una been liable to build and maintain, should be built and maintained by the company;, it was held, that the eompany was obliged to build and maintain bridges only where, by the elevation of the turnpike road, they became necessary over openings for the outlet of water, though none were necessary before, and also where the road passed over such small bridges as had usually been erected by the districts, in the usual mode of repairing highways ; the general law requiring all other bridges to be built and maintained by the town where situated. And the act of incorporation having thus designated what bridges should be built by the company, the stat. tit. 16fi. c. 2. s. 3. did not apply; and all evidence to show by whom the bridge was built was, of course, irrelevant and inadmissible..</p> <p>The acts of the directors of a turnpike company, not authorized by a vote of the corporation, are inadmissible as evidence.</p>

This was an action of debt on a bond given by the defendants to the plaintiff as judge of probate, with a condition that it should be void, if the defendant Thompson should faithfully administer on the goods and estate of Moses Thompson, deceased.

WRIT of error. This was a scire facias brought by Cady, as administrator of the estate of Job Smith, deceased, to obtain an ex- . . . re-, r, ecution on a judgment m favour ot Smith against Stoyel, on ground that the execution which had issued ©n that iudp-ment had been discharged by mistake. The pleaded in bar ot the suit a payment ot the execution to John Lawrence, a deputy'Sheriff, and an endorsement m full by the lawful attorney ot Smith.

<p>An action of indebitatus assumpsitmay be maintained onthe implied promise arising merely from the use and occupation of real estate, by permission, without an express promise to pay tent.</p>

The defendant pleaded the general issue. On the trial it appeared, that in 1802, the plaintiff had a good . title to the demanded premises; when he conveyed the same to j9aiaf¡ Gunn, by an absolute deed legally executed.

<p>The convey-anee ot an m-corporeal he-reditament is-reaí^estate k not within the StaUlIc UgainSv selling pie-tended titles. (Tit. 97. c.17. —-^-A^rio-ht to a privilege appurtenant to land may be exclusive3" enjoyment for a length of time, tL^taune of limitations ¡ put no period short of that required by such statute to Snd Vill^be sufficient for Shis purpose. ⅛-</p>

WRIT of error. This was an action of assumpsit on a promissory nóte. , The defendant pleaded usury.

This was an action of trespass vi et armis, for taking and destroying a horse, a pair of fetters, and a halter. The writ was dated July 18th, 1808. It was admitted, that the property of the goods was in the plaintiff; that the defendant was collector of the society rate of the first society in Stamford ; that as such, he held several rate or tax bills duly assessed against the plaintiff, and lawful warrants to collect the same.

■ _ _ This was an action of ejectment in right of the wife, detnUiding the seisin of the fifth part of one undivS8®d' a certain lot of land situated in Cheshire, cofr* taining about nine acre Si The' disseisin was alleged to have been about 1st Ajiril, 1808. The defendant pleaded the general issue.

• ■ ^ MOTION for a new trial. This was an action of assumfisit demanding damages for tjje non-performance of a written contract entered # * into between the plaintiff and defendant. The agreement recited, that Leavenworth had under-ta^en t0 superintend the performance of certain work, in consideration of which Church promised to pay to Leavenworth for his services, two dollars per day, to be paid monthly > and he on his part agreed to perform the stipulated services.

This was an action of ejectment. The suit was commenced on the 8th of March, 1809. The defendant claimed title by a deed from Nathaniel Brace, who, as was agreed, was, in November, owner of the demanded premises; at which time, he sold the same to the defendant.

This was an action of ejectment for a lot of land in city of New-Iiaven. The suit was commenced on _ the 9th of November, 1808.

This was an action of ejectment, commenced on the ■ 9th of March, 1809. The defendant pleaded the general issue; and on the trjaj appeared, that John Granisa died seised of the r premises in 1746, intestate.

WRIT of error. . . . This was an action of covenant broken, on an indenture of apprenticeship, brought by Wright, the master, against the father of the apprentice. 1 The declaration counted upon the covenants on the part of the plaintiff in the following words: “And the plaintiff, in and by said indenture, bound himself to use the utmost of his endeavours to teach,, ór cause to be taught and instructed, the said Norman (the apprentice) in the art, trade and mystery…

This was an action of ejectment, J On the trial it appeared, that the demanded premises originally belonged tb the ancient township of Wood-bury, as common and undivided land; and were part of a tier of land which had been, about one hundred years ago, appropriated by the proprietors for a public highway, by laying out the common land adjoining on both sides thereto, and selling the same as being bounded on the highway.

WRIT of error. This was a complaint against Potter upon the statute, tit. 125. c. 1. s. 7. for a secret assault upon the body of Dickinson.

This was an action qui tam on the statute against fraudu- , , . lent conveyances, (tit. 76. s. 2.) to recover one year s va lue of the land, and the whole value of the goods fraudulently conveyed, . lhe case, as it appeared on the trial, was as follows: William Goodwin, father of the defendant, and husband of the plaintiff, entered into a written agreement with the , \ o plaintiff to this effect: that whereas they had mutually , c , , f , agreed, tor reasons best known to…

This was an action of ejectment for a piece of land in town of Suffield, called the Ministry Meadow. _ The defendant pleaded the general issue; and on the trial the facts were as follows: In 1670, a grant of the towns'1IP °*' Suffield was made to certain proprietors, who, in 1671, appointed a committee to lay out lots ... . , and superintend the proprietors interest m the townS'11P‘ The committee proceeded to locate the shares, and divided the same into lots of eighty acres…

CASE stated. This was an action of ejectment. The defendant P^eade(l the general issue; after which the following cass was stated, and agreed to by the parties: Green Hungerford died in 1735, seised in fee of the demanded premises, having devised the same by his last will as follows : “ I give to my four sons, viz. Green, _ ¶⅜- ...

This was an action of trespass and false imprisonment. appeared on trial to the jury, that the plaintiff was, # and always had been, an inhabitant of East Windsor $ that he owned land in the town of Enfield, but never resided there; that he had for many years given in a list 0f his land in Enfield to the proper authority; that at a legal meeting of the inhabitants of the school district in which said land was situated, it was voted to build a school-house, to effect which a…

WRIT of error. This was an information by a grand juror against Hungerford, on the statute tit. 112. c. 6. s. 1. for dis- , • ■ charging a musket, on a day of company exercise and review, without the order of a commissioned officer.

' ' . \ . ⅜ ror the nature or the action, see the report of this case, 011 a writ of 0OT, ante, p. 6 — 29. On the trial to the jury before the superior court, the . . plaintiff offered m evidence a paper purporting to be a c°py the covenant stated in his declaration ; to the admission of which the defendant objected, unless the _ . J plaintiff should first show that the original had been lost.

This was an action of partition, alleging that the plaintiffs and defendants held together, as tenants in common, ° 1 a certain piece of land in Middletown, containing about , . , , , .… Held: and that Hins-dale’s proportion was not one sixth; but the court rejected this evidence, and instructed the jury that the proportion intended to be conveyed to Hinsdale by the deed was one sixth. The jury found a verdict for the plaintiffs; and the defendants moved for a new trial. 1.

This was an action on the case for overflowing a pasture lot of the plaintiff’s in the town of Middletown, from the 6th day of August, 1806, to the commencement of the action, in March, 1808. The defendants pleaded the general issue; and on the trial, the plaintiff, to establish his title to the premises, produced in evidence sundry ancient votes and proceed* ings of the town of Middletown ; also sundry subsequent deeds and other matters relative to title.

WRIT of error. This was a petition to the county court of Fairfield 4 county, praying for a highway to be laid out from the port in Norwalk, to the meeting-house in New-Canaan, at the expense of the towns of Norwalk and r naatx. rm . . , , * n , * ,, . 1 he petition stated, “ That at the port of yvorwa/A*, in Fairfield county, is a very convenient public market for the vending of all kinds of country produce, and a fine . . . harbour connected by its navigation with the…

WRIT of error. . . This was a bill in chancery brought to the superior court by Griffin against Wheat.

WRIT of error. This was an action of debt on an arbitration bond against Abiel Gaylord and Bissell, with a condition that said Abiel should comply with, and abide by, the award of arbitrators upon certain matters of controversy subsisting between him and Stoughton Gaylord, and by them submitted. The defendants pleaded that no award had been made and published by the arbitrators. The plaintiff replied, setting forth the submission and award.

<p>One partner, without the knowledge of the other, may make a valid assignment, in the copartnership name, of a debt due to the company, with a power of attorney to the assignee to sue for an d collect the same, and apply the avails to his own use.</p>

<p>In an action fur an assault and battery and imprisonment, brought by A. against B. and C.,.the defence was, that A., being a sailor on board of a vessel of which B. was master and C. mate, had destroyed a quantity of cheesebelong-ing to C., and had also used insulting language to C.s whereupon H.. as a punishment for A*s conduct, confined him in the run of die vessel. To establish the factofdestrov-ingthe cheese., the defendants offered in evidence the record of a court of competent jurisdiction in an action bro'f. by C. against A. for destroying the cheese of C, in which action Cb obtained a verdict for damages^ and final judgment was ren-deredthereon* Held that such record was inadmissible evidence.</p>

This was an action of trover for two horses, two oxeD, , t , other personal property. The general issue was pleaded. On the trial, it was admitted by the defendants that . . they took and carried away the articles specified m the declaration. But they attempted to justify the taking by virtue of an attachment in the name of the defendant .

WRIT of error. This was an action of assumpsit against Granger on a sPec‘a* endorsement, guarantying the payment of Oliver L. Phelps's promissory note, dated November 1, 1805» and payable to Williams on the 1st October, 1806, The was in these words : “For yalue received, j hereby guaranty to Jonathan Williams, Esq. that the . , . within named Oliver X. Phelfis> the promisor, is, and continue to be, until the day of payment mentioned in said note, of sufficient responsibility…

WRIT of error. This was an action of ejectment brought by Wheeler against Talbot, for “ a certain tract of land lying in ° a Farmington in Nod Division on the west side of the river, bounded north on the plaintiff’s own land, easterly on the Talcott Mountain turnpike road, south on the defendant’s own land, and running westerly about 200 rods, containing about three acres.” In the county court the general issue was pleaded, and the parties put themselves on the court for…

<p>The endorsee of a, promissory note, in attempting to enforce the collection of it by suit against not obliged to lacliment6or" execution to be levied upon property notoriously nt Ipqc va no than the debt, or lose his hold of the thatamount* In an action see1 of ^"pro-aga^nsttheerf dorsor, it appeared that an officer ing in his hands an exe-edlri'a suit on such note against the maker, took pert^of ^less value than the terwards re-that "property to the debtor, and took bis body- Held was no t a com - petentwitness for the plaintiff to prove Unquhhmentj the effect of Lis testimony being to protect himself from a suit by subjecting the defendant-</p>

<p>[In the report of this case, ante, p. 265 — 274. the observations of Judges Swift and N. Smith, in support of their respective opinions, were omitted by mistake. Their proper place is at the conclusion of Judge Brainerd’s opinion, p. 274.; but as the reader will be referred to them by the index and table of cases, it is hoped that no inconvenience will result from their insertion here.]</p>

THIS was an indictment for assaulting Edward. Cheeseborough, an inspector of the customs for the district of JVeiv-London, duly appointed and sworn, knowing . , . . ... . ° him to be such inspector, while executing the duties of his said office, under the direction of Jonathan Palmer, surveyor of the customs for said JVeiv-London district, . . and for forcibly resisting him the said Edward Cheese-borough in the execution of his duty in said office.

THIS was an indictment similar to the one stated in the preceding case. Peleg Palmer, of Stonnington, a witness in support of the indictment, was summoned last September, and his fees tendered. He now refused to attend. The District-Attorney moved for a delay of the cause in order to afford time for a capias.

THIS was a bill in chancery praying for a set-off. The case, as it appeared from the bill and answer, was as follows: The respondents recovered judgment, before this court, at this term, against the complainant in a suit in the name of Stephen Howard, brought on a promissory note for 1,016 dollars and 68 cents, executed by the complainant and Ashbel Stanley, dated the 24th of February, 1796, payable to Howard on the 1st of October following, with interest after six months.

THIS was an action of debt, brought to the district court, alleging that the defendant was master of the schooner Amazon, was concerned in fitting her out, and l*iat by his procurement she escaped without any clear-anee or permit, and departed from the port of New-Haven, and proceeded to a foreign port, contrary to the provisions of the embargo acts, particularly the first supplementary act, approved January 9, 1808 ; and demand-ijig the penalty of 20,000 dollars.

THIS was a petition in chancery. The circumstances stated in the bill, so far as they are necessary to understand the point decided, were as follows: In February, 1801, Peleg Sanford and Timothy Phelps, merchants in company, under the firm of Phelps Sanford, applied to the petitioners to make insurance on the freight of the schooner Betsey, from JYew-York to St, Jago de Cuba.