Volume 40 — Connecticut Reports

Bill in equity, by the executors-of the will of Jedediah Huntington, asking advice as to tlie construction of sundry clauses of the will; brought to tlie Superior Court in New London County, and reserved, upon a finding of the facts, for the advice of this court. The devisees and legatees of the will were made respondents. The case is sufficiently stated in the opinion.

Bill in equity, praying for an injunction against the removal, as an encroachment upon a city street, of a wall in front of the petitioner’s premises; brought to the Superior Court in New London county.

Trespass qu. cl. fr., brought to the Court of Common Pleas for New London County, and tried to the court on the general issue, with notice of a claim of right of way, before Willey, J. On the trial the plaintiff showed title by deed to the premises described in the declaration; and the defendant claimed that he was entitled to a right of way over the same.

Assumpsit, by an endorsee against an endorser of a promissory note; brought to the Court of Common Pleas of New London county, and tried to the jury, on the general issue, with notice, before Willey, J. On the trial the plaintiff offered in evidence the following note, being the one described in the declaration: $260.00. Norwich, Ct., April 7th, 1871. Three months after date I promise to pay to the order of Chas. W. Bradbury, Two Hundred and Sixty Dollars, value received.

Petition under the flowage act; brought to the Superior Court ill New London County, and reserved, upon the report of the committee, for the advice of this court. The facts, which are complicated and cannot be easily understood without apian of the premises, are sufficiently stated in the opinion of the court to make clear the points of law decided.

Information for keeping -without a license a place where intoxicating liquors were reputed to be kept for sale; brought to the Superior Court for New London county, and tided to the jury, on the plea of not guilty, before Minor, J. The 10th section of the act of 1872, on which the information was founded, provides that “ every person who shall keep a house, store, shop, saloon or other place in which it is reputed that spirituous or intoxicating liquors, ale or lager beer,…

Replevin for goods claimed to be unlawfully detained; brought to the Superior Court in Middlesex county, and tried to the court on the general issue. The court found the following facts: The plaintiff, a trader at Middle Haddam, on the first day of October, 1871, purchased in New York a quantity of goods which were the next day shipped by the seller on board one of the defendants’ line of steamers running between New York and Hartford.

Assumpsit on a policy of insurance ; brought to the Superior Court in Middlesex county. The facts were found by a committee. The policy was originally made to one Henry N. Wilson, and was upon a large amount of furniture in a hotel. It was issued May 22d, 1867, and was for one year. The property insured was totally destroyed by fire on the 31st of October, 1867.

Debt, to recover money paid as taxes to tlie defendants.; brought to the Superior Court in Middlesex county, and tried to the court upon the general issue before Phelps', J. The court made the… Held: and all its corporate powers there exercised, and all its books and papers there deposited and kept, excepting such as were in daily use upon and in the operation of the ferry boats.

Trespass on the case, for an injury to a steam boiler of the plaintiff, through the negligent acts of an inspector appointed' by the defendants ; brought to the Superior Court in New Haven county, and tried to the court on the general issue.

Assumpsit, for the rent of a pew in a church; brought before the City Court of the city of Waterbury, and tried to the jury on the general issue, before Fields, J. The pew was hired by the wife of the defendant, and occupied by her and a daughter of the defendant, but without his authority or assent.

Assumpsit by a second endorser against a prior endorser of a promissory note ; brought to the City Court of the city of New Haven, and tried on the general issue closed to the court, with notice of the defence hereinafter stated, before Stoddard, J. The following facts were found by the court: The note in question is dated April 8th, 1872, and is for $150 payable in three months at the New Haven County Bank.

<p>Ejectment; brought to the court of Common Pleas of New Haven County, and tried on the general issue, closed to the court, before Pardee, J. The court found the following facts:</p> <p>The plaintiff claimed title to the demanded premises by virtue of an attachment, and subsequent levy of an execution, against James Kinneen, the attachment having been made on the 6th day of July, 1871. The land is situated in the town of Branford, where the defendant also lived. On the 5th day of July, 1871, and for several months before, the premises were subject to a first mortgage for $212, owned by H. Lyndo Harrison, Esq., and to a second mortgage for a smaller amount, owned by Michael Kinneen. On the 5th of July the defendant, who owned an adjacent piece of land, bargained with J ames Kinneen to purchase his piece, by taking up the mortgages and paying him some $125, the whole price paid by her being $480. . This was all the place was worth.</p> <p>On the 6th day of July, Michael and James Kinneen and the defendant came together to Mr. Harrison’s office in New Haven to execute the agreement. A warranty deed was drawn by Mr. Harrison’s partner from James Kinneen to the defendant, and the money balance coming due to him was paid to him on that day between one and two o’clock in the afternoon ; hut Mr. Harrison being out of town, his interest could not' be quit-claimed that day. The parties therefore left the warranty deed in the hands of Mr. Harrison’s partner, to be used by him in drafting the quit-claim deed, and the following day, July 7th, Mrs. Sullivan and Michael Kinneen came into Mr: Harrison’s office again, when, about 2 o’clock P. M., the quit-claim deeds from Mr. Harrison and from Michael Kinneen to James Kinneen were executed, and with the warranty deed from James Kinneen to the defendant, were placed in her hands, and she the same evening, at 8 o’clock and 20 minutes, left them for record with the town clerk of Branford.</p> <p>The two quit-claim deeds, although executed and delivered on the 7th of July, being to James Kinneen as grantee, were, in fact, ante-dated to July 5th, so as to have it appear by the records that all the title conveyed by the deeds vested in the defendant.</p> <p>On the 6th day of July, at 7.20 o’clock P. M., the plaintiff’s certificate of attachment was lodged by the officer for record with the town clerk, in a suit against James Kinneen. The defendant knew nothing of the attachment until several days thereafter, but on the evening of July 5th had caused the records to be examined.</p> <p>The plaintiff claimed that the wari’anty deed from James Kinneen to the defendant was left with Mr. Harrison’s partner on the 6th of July as an escrow, and was not, in fact, delivered to the defendant until July 7th between 1 and 2 P. M., and after the plaintiff’s attachment. The court found that the deed was not delivered as an escrow, but was in fact delivered to the defendant July 6th, about 2 o’clock P. M., and left by her for use in drawing the quit-claim deeds.</p> <p>The plaintiff further claimed that if the deed was in fact delivered at 2 o’clock P. M., the plaintiff’s attachment at 7.20 P. M: of the same day would hold the property.</p> <p>The court held that the deed of the defendant was recorded in a reasonable time under all the circumstances, and rendered judgment upon the facts for the defendant. The plaintiff brought the recoi'd before this court by a motion in error.</p> <p>Sundry other facts were found which it is not necessary to state, as the questions arising upon them are not considered by the court.</p>

Petition for an injunction against the taking out and levying of an execution on a judgment obtained by the respondents against the petitioners; brought to the Superior Coul’t in New Haven County, and heard before Phelps, J. The petition alleged that the petitioners' on- the 2d day of February, 1856, made an assignment of all their property for the benefit of their creditors under the insolvent law of the state, and on the 18th day of February, 1857, obtained under the…

<p>Ejectment ; brought to the Superior Court in New Haven County, and tried on the general issue, closed to the court, before Phelps, J. Tlie court made the following finding of facts:</p> <p>The question in controversy arises from a disagreement concerning the boundary between the premises of Luke McGarvey and wife, for whose benefit the action is brought, and those of the defendant; McGarvey and wife and the defendant being adjoining proprietors, and the title to the premises occupied by both having, prior to August 28th, 1854, been in Fernet Booth.</p> <p>On the 28th of August, 1854, Booth conveyed to McGarvey and wife the premises now occupied by them, including the land in dispute, which is a narrow strip next the land of the defendant. Under this deed McGarvey and wife did not enter and take possession, and did not record the deed. On the 18th of January, 1855, Booth, for a valuable consideration, mortgaged by warrantee deed with the usual covenants, this strip with other adjoining land to the plaintiffs, who had no knowledge of the prior unrecorded deed to McGarvey and wife, and who caused their mortgage to be placed on record. This mortgage has never been foreclosed or redeemed. On the 5th of February, 1857, Booth quit-claimed the premises to the plaintiffs, and on the 30th of March, 1858, the plaintiffs quit-claimed the same to McGarvey, who then, in consideration therefor, paid the plaintiffs the mortgage debt due to them from ‘ Booth, but took no assignment otherwise from the plaintiffs of the mortgage. It was admitted that, at the time of the last mentioned conveyance, the plaintiffs were ousted of the possession of the premises, and that consequently the deed was a void conveyance of the title under the statute. McGarvey and wife in fact paid for the land in dispute to Booth on the 28th of- August, 1854, and again to the plaintiffs on the 30th of March, 1858.</p> <p>On the 1st of March, 1855, Booth by warranty deed conveyed the land in question, with other contiguous land now owned by the defendant, to one Morrissey, who on the following day mortgaged the same to a savings association in New Haven, which subsequently foreclosed the mortgage, and after such foreclosure and the expiration of the time limited. for redemption, to wit, on the 10th of May, 1860, for a valuable consideration then paid, quit-claimed the same to the defendant, who, with those under whom he claims title, has been in possession holding and claiming the same since the 1st day of March, 1855. The defendant resides in a small dwelling which covers a considerable part of the strip in dispute.</p> <p>No notice to quit, or entry, or demand for payment, was ever by the plaintiffs given to or made upon the defendant, or those under whom he claims, before the bringing of the suit.</p> <p>Upon these facts the court found the issue for the plaintiffs, and rendered judgment for them to recover possession of the demanded premises. The defendant brought the record before this court by a motion in error.</p>

<p>AVhere an attorney sues upon a quantum meruit for professional services, his professional standing is a proper subject of inquiry as affecting the value of his ! services.</p> <p>And the amount of his professional business may he enquired into, as tending to show his professional standing.</p> <p>As the time of notice to he given on the taking of depositions has not been fixed by statute, each case must he governed by its own circumstances. A fair opportunity must he given to the opposite party to attend and examine the witness.</p> <p>It is desirable that depositions be taken in vacation rather than in term-time, but circumstances may make it necessary to take them in term-time, and where such is the case, and the party taking- them has acted fairly and in good faith, they should be received.</p> <p>The rule that a deposition must he filed with the clerk of the court on the first day of the term, is not an inflexible one, and the court in its discretion may allow a deposition to be read which has not been so filed.</p>

provisions of the city charter to the Superior Court in New Haven County, and heard before Minor, J. The court affirmed the assessment, and rendered judgment for the city. The appellant moved for a new trial. The case is sufficiently stated in the opinion.

Replevin, for property claimed to be unlawfully detained by the defendant; brought to the Superior Court in New Haven County.

Case, and trover; brought to the city 'court of the city of Yfaterburv, and tried to the jury on the general issue before Melds, J. Verdict for defendant, and motion to the Superior Court for a new trial, for error in the charge of the court, which motion was reserved by the latter court for the advice of this court. The case is fully stated in the opinion.

Assumpsit for services rendered by tlie plaintiff, a real estate broker, in renting certain rooms for tlie defendant’s wife ; brought to tlie Court of Common Pleas of New Haven County, and tried to the jury, on the general issue, before Pardee, J. Upon tlie trial, the plaintiff claimed, and offered evidence tending to prove, that in November, 1871, he was a real estate broker in the city of New Haven ; that Mrs. Holmes, one of the defendants and tlie wife of the oilier…

Amicable submission, upon tlie following agreed statement of facts; brought to the Superior Court in Now Haven County.

Indictment for murder iu the first degree; brought to the Superior Court in New Haven County, and tried, on the plea of not guiUy, before Foster and Granger, Js. The murder charged was that of a woman named Johanna Hess, at Meriden, in New Haven County, on the 8th day of July, 1872.

Information for bigamy; brought before the Superior Court for the county of New Haven and tried to the jury on the plea of not guilty, before Gfranger, J. Upon the trial the state offered in evidence, as tending to prove the alleged first marriage, the certificate below given, in connection with the evidence of one Patrick Reynolds, who testified that on or about the 17th of January, 1867, ho saw the prisoner and Bridget Reynolds, who was his sister, the alleged first wife,…

Replevin, for a carriage, two horses and two harnesses; brought to the Court of Common Pleas of New Haven County, and tried on the general issue, with notice, closed to the court, before Pardee, J. The court found the following facts:— On the 29th of April, 1872, the plaintiff and one Conrad Spreyer made the following contract, upon the execution of which the property described in it, and which belonged tc the plaintiff, was delivered to Spreyer. “Agreement between Conrad…

Appeal irom tlie doings of commissioners on an insolvent estate ; taken to the Superior Court in New Haven County. Plea to the jurisdiction of the court; demurrer to the plea; and reservation for advice. The case is fully stated in the opinion.

Trespass de bonis asportatis; brought to the City Court of the city of Waterbury.

Assumpsit to recover money paid for an interest in a vessel; brought to the Superior Court in New Haven County, and tried on the general issue closed to.the court, before Phelps, J. The court found the following facts:— On the 30th of January, 1868, the plaintiff, by a parol contract with the defendant, purchased of him one-eighth of the schooner Ellen Louisa for §225, and then paid him the purchase money, and the defendant then executed and delivered to him the following…

Assumpsit on two promissory notes; brought to the City Court of the city of Meriden au 1 tried on the general issue, with notice, closed to the court, before Coe, J. The defendant was sued as administrator of the estate of Samuel B. Morgan, by whom the notes were made. One note was for §130, dated April 18th, 1871; the other for §76, dated May 22d, 1871.

approving the separate administration account of Lucy H. Boardman, one of the executors of the will of William W. Boardman, deceased, and. malting a special order upon a petition accompanying the account; taken to the Superior Court in New Haven County.

Case, for an injury from a defect in a highway of the defendant town; brought to the Court of Common Pleas of New Haven county. The facts were found by.a committee,, and the court reserved the case on the facts for the advice of this court. The case is sufficiently stated in the opinion.

Trover, with trespass de bonis asportatis; brought to the Superior Court in New Haven County, and tried to tlio jury, on the general issue, with notice, before Sanford, J. Upon the trial the plaintiff offered evidence to prove the following facts.

Assumpsit against the defendant, a married woman, on a promissory note given by her; brought to the Superior Court in Litchfield County, and tried on the general issue closed to the court. The court made a finding of the facts and reserved the case for the advice of this court. The facts are sufficiently stated in the opinion.

Assumpsit on a guaranty of a promissory note ; brought to the Superior Court in Litchfield County, and tried to the court on the general issue, with notice. The note was as follows : “ $2000. Amenia, N. Y., Feb. 24, 1870. Sixty days after date we promise to pay to the order of George Great head, Two Thousand Dollars at the First National Bank, for value received. William F. Walton.” The note was endorsed as follows: Caroline T. Walton. Geo. Greathead.

Case, for an injury from a defective bridge of the defendants, a turnpike company ; brought to the Superior Court in Litchfield County, and tried to the jury on the general issue, before Granger, J. On the trial it was proved and admitted that on the 21st day of January, 1870, one Hartrick was driving the horse of the plaintiff on a town road in the town of Norfolk, in a buggy belonging to the plaintiff, and that while so driving, being on slightly descending ground, through…

Information to the Superior Court in Litchfield County, for a violation of the act of 1872, which provides that “ every person who shall keep a house, store, shop, saloon, or other place, where it is reputed that spirituous or intoxicating licp uors,-ale, or lager beer, are kept for sale, without having a license therefor, shall be punished, etc.tried to the jury on the plea of “ not guilty,” before Minor, J. Verdict “ guilty,” and motion for a new trial by the defendants.

Petitiox by tlio executors of tlie will of George D. Phelps, for advice as to the construction of sundry clauses of the will and as to their duties under the same; brought to tlio Superior Court in Hartford County,, The will was executed in the city of New York, where the testator resided, on the 7th day of February, 1863. The parts of it important to the present case are as follows: “ Second.

Bill in equity for a partition or sale of real estate ; brought to. the Superior Court in Hartford County. The petition alleged that Rosa Kelley, one of the petitioners, and the respondent, were joint and equal owners. The following facts were found by a committee to whom the case was referred. The petitioner, Rosa Kelley, is a sister of the respondent. On the 9th pay of July, 1853, they purchased the land described in the petition, taking a joint deed therefor.

Information by tlie State Attorney of Hartford County to , the Superior Court in that county, charging the defendant with the crime of perjury. The defendant moved that the case he erased from the docket on the ground that the court had no jurisdiction of the case. The question was reserved for the advice of this court.

Debt for a fine; brought by appeal from a justice to the Court of Common Pleas for Hartford County. The plaintiff sued as captain of a militia company, for a fine imposed upon the defendant as a member of the company for failing to appear at a time and place appointed' for parade.

Treat,; taken to the Superior Court in Fairfield County. That court (Pardee, J.,') affirmed the decree, and the appellant brought the record before this court by a motion in error. The case is sufficiently stated in the opinion.

Trespass on the case, against the defendant as a constable, for not having kept and produced certain household furniture attached by him in a suit of the plaintiff against one Fanny Ensworth, the plaintiff having recovered judgment in the suit and demand having been made on the defendant for the goods attached; brought to the Court of Common Pleas of Fairfield County, and tried to the court on the general issue, with notice that the property attached was by law exempt from…

Petition for an injunction; brought to the Superior Court in Fairfield County, and heard before Minor, J. The respondents were James King, R. B. Lacy, and R. T. Clark, respectively clerk, auditor and treasurer of the city of Bridgeport, and the petitioner, a tax payer of the city, sought to enjoin them respectively against drawing, certifying or paying an order, under a vote passed by the common council of the city, for the payment of salaries to Thomas Dinon as second…

Assumpsit for the breach of a covenant of the defendants, an incorporated company, to employ the plaintiff in their service, ■ and for services rendered under the contract; brought to the Superior Court in Fairfield County. A new trial having been granted in the case (37 Conn.

•Trespass qn. cl. fr., brought by appeal from a justice of the peace to the Court of Common Pleas of Fairfield County, and tried to the jury in that could, on the general issue, with notice of a claim of title, before Brewster, J. Verdict for the plaintiff, and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Bill in equity to set aside a mortgage; brought to the Superior Court in Fairfield County. The petitioner alleged fraud on the part of the respondent in procuring her to execute the mortgage; the respondent in his answer denied the fraud, and by a cross-bill asked for a foreclosure of the mortgage.

Assumpsit on a promissory note, with the common counts; brought to the Court of Common Pleas of Fairfield County, and tried to the court on the general issue, with notice that the note was not lawfully stamped and that it was fraudulently stamped, before Brewster, J. The note was dated April 1st, 1865, and was for the sum of four hundred dollars, payable on demand to Coleman Rockwell, the intestate.

Assumpsit for money received by tbo defendants to the plaintiff’s use; brought' to the Court of Common Pleas of Fairfield County and tried to the jury on the general issue, with notice, before Brewster, J. The notice was that the defendant held the money as a stakeholder upon a bet at a race between a horse of the plaintiff and a horse of one Howe ; that a dispute having arisen as to which of them won it was submitted by the plaintiff and Howe to an arbitrator, who awarded…

Amicable submission to tlie Superior Court upon the following agreed statement of facts: Louis Gaylor, of Bridgeport in this state, on the 29th of December, 1868, took out a policy of insurance for $2,000 upon tlie life of Magdalena Gaylor, his wife, for his own benefit, in the Knickerbocker Life Insurance Company of New York, upon which policy he paid all the premiums as they became due. The insurance was for the term of her life.

Assumpsit, upon a written instrument described as a note, with the common counts; brought originally before a justice of the peace and appealed to the Court of Common Pleas of Fairfield County, and tried in that court, upon the general issue closed to the court, with notice that the action was barred by the statute of limitations, before Brewster, J. The suit was brought June 1st, 1872.

The petition alleged that the petitioner was duly elected on the 17th day of June, 1873, a member of the common council of the city of South Norwalk, to which ofiice he was elegible, and that be bad taken the oath of office prescribed by law, but that the common council, by a majority vote, had declared his seat vacant, and had refused to admit him to the exercise of the office ; and prayed for a mandamus to compel the council to rescind the resolution declaring his seat…

General assumpsit for use and occupation of leased premises ; brought to the Court of Common Pleas of Fairfield County, by appeal from a justice of the peace, and tried to the jury, on the general issue, before Brewster, J. Upon the trial the plaintiff offered evidence to prove, and claimed to have proved, that on October 2d, 1871, at 11 o’clock in the forenoon, the defendant made a parol contract with liim to hire three rooms, belonging to him on Main street, in Bridgeport,…

Assumpsit for work and labor; brought before a justice of the peace, and appealed by the defendant to the Court of Common Pleas of Now London County, and tried to the court on the general issue, with notice of a claim of recoupment, before Holbrook, J. The court found the following facts: The plaintiff entered into the service of the defendant at the wages of one dollar and a half per day, subject to the regulations of the defendant’s mill, one of which was as follows:…

Case, for an injury from a defect in a sidewalk of the defendant city; brought to the Superior Court in New London County, and tried to the jury on the general issue before Parle, J. Verdict for plaintiff and motion for a new ferial by the defendants for error in the charge of the court. The case is sufficiently stated in the opinion.

The petition alleged that the respondent was a justice of the peace of the town of Preston in New London County, and as such, on the 29th day of March, 1873, rendered a judgment in a case brought before him, in which one Seth Main was plaintiff and the present petitioner defendant, which judgment was rendered against the defendant, and from which the defendant, the present petitioner, moved an appeal to the Court of Common Pleas at its June term, 1873, which motion was…

Trespass for taking and carrying away a quantity of seaweed claimed to belong to the plaintiffs, with a count in trover; brought to the Court -of Common Pleas of New London County, and tried to the jury, on the general issue, before Willey, J. The plaintiffs claimed to recover for the taking and removing by the defendant of several loads of sea-weed, which had been thrown by the action of the sea, after a storm, upon the shore of Jupiter Point, in the town of Groton, below…

Scire Facias upon a process of foreign attachment; brought before a justice of the peace and appealed to the Court of Common Pleas, of New London County, and there tried to the court, on the general issue, before Willey, J. The defendants were a joint stock manufacturing company, doing business in the town of Montville.

Case, for an injury to the plaintiff from a defect in a sidewalk of the defendant city ; brought to the Superior Court in New London County, and tried to the jury, on the general issue, before Park, J. Verdict for the plaintiff and motion for a new trial by the defendants for error in the charge of the court and on the ground that the verdict was against the evidence. The case is sufficiently stated in the opinion.

Bill in equity for an injunction ; brought to tlie Superior Court in New Haven County. The petitioners sought to enjoin the respondents from removing the soil from, and erecting a building upon, land claimed by them to ho part of a dedicated but unopened street of the borough of Birmingham within the town of Derby. The respondents in their answer denied all right of the public in the land in question and claimed it as exclusively their own property.

Bill in equity, brought to the Superior Court in New Haven County, by the executor of ihe will of Enos B. M. Hughes, asking for advice as to the construction of the will. Facts agreed and the case reserved for the advice of this court. The facts arc sufficiently stated in the opinion.

Petition for an injunction to restrain the respondent from making use of a judgment and execution claimed to have been fraudulently obtained against him; brought to the Court of Common Pleas in New Haven County, and heard before Stoddard, J. The court granted a perpetual injunction ; and the respondent moved for a new trial and also filed a motion in error. The points decided by the court will be understood without a statement of the facts.

Assumpsit, for breach of a contract to deliver a quantity of cider brandy; brought to the Superior Court in the county of New Haven. The following facts were found by a committee : In the latter part of June, 1871, the defendant, who resided iu Granby in this state, employed one Willis Phelps of Granby to sell for him the brandy in question, and delivered to him a sample of it for the purpose.

Case, for an injury to the plaintiff, from a defect in a side-walk of the defendant city; brought to the Superior Court in New Haven County and tried to the court on the general issue, before Parle, J. The court found the following facts:— Some time previous to the 19th day of June, 1870, the proper authorities of the city of New Haven directed the proprietor adjoining the place where the injury complained of afterwards occurred, to construct a sidewalk, according to a…

Assumpsit for goods sold; brought to the Court of Common Pleas for New Haven County. The defendant pleaded that she was, at the time the goods were furnished, and had ever since been, a married woman, living with her husband, and that as such she was not liable for the goods, and if liable, that an action at law could not be maintained against her.

<p>Debt on a penal bond; brought to the Court of Common Pleas of New Haven County, and tried to the court on the general issue, with notice, before Stoddard, J. Judgment for the plaintiff and motion for a new trial by the defendant The case is sufficiently stated in the opinion.</p>

General Assumpsit; brought to the Court of Common Pleas of New Haven County.

Petition for the sale of a building owned in common; brought to the Court of Common Pleas in New Haven County. The court (Stoddard, J.~) made a finding of the facts and dismissed the petition, and the petitioner brought the case before this court by a motion in error. The case is sufficiently stated in the opinion.

<p>Information for selling liquor in violation of law; brought to the Superior Court In New Haven County, and tried to the jury on the plea of not guilty, before Sanford, J. The jury found the defendant guilty and he moved for a new trial. The case is fully stated in the opinion.</p>

<p>The charter of the city of New Haven authoriz d the common council of the city to make ordinances to protect the city from fire, and to establish districts within which it should not be lawful without a license to erect, enlarge or place any wooden building. The common council passed an ordinance establishing a fire district and forbidding the erection or placing of any wooden building within the district, without license given by the hoard of aldermen, declaring that such building should he deemed a common nuisance, and making it the duty of certain officers, after reasonable notice, to abate it. Held that the ordinance was fully authorized by the charter and was reasonable.</p> <p>The prompt enforcement of such an ordinance in case of its violation is important to the public safety, and a court of equity will not interfere by injunction to prevent such enforcement, but leave the party aggrieved to his legal remedy. if he is entitled to any remedy.</p> <p>It is not a reason for the interference of chancery that , the building has become real estate. It has become so bv the unlawful act of the owner, and is such only in the most technical sense, and the value of the building can be easily ascertained and proved.</p> <p>Nor is it a sufficient reason for such interference that the owner had obtained the consent individually of a majority of the aldermen, notice being given him that the hoard when in session might refuse its assent, as it afterwards did. Nor that he had, after placing the building, covered it with a sheathing of iron and tinned the roof, before proceedings wore instituted against him, \ and had by further work upon it during the pendency of the proceedings made it substantially fire-proof. The city authorities are the proper judges as to how far these facts should affect their action.</p> <p>And held that the fact that the city, exempt itself from responsibility on the ground that the duty was a public one, might emp'oy persons to demolish the building who were of no pecuniary responsibility, was not entitled to consideration, so long as nothing appeared to show any such purpose on the part of the city.</p> <p>The objection to the jurisdiction of a court of equity that there is adequate remedy at law, is not one that must necessarily be taken by a plea to the jurisdiction. Where it is manifest that there is a want of equity jurisdiction on this ground, the court may of its own motion dismiss the bill. Where the question is in doubt and there has been a trial on the merits, the court will not of its own motion dismiss the bill, nor will the objection, then taken for the first time,, be regarded with favor.</p>

<p>Distributors of an estate divided a homestead by a line running east and west through it a,nd through the hall of the house, and gave the one part to one of the heirs, with “ the north half of the house,” and the other part to another heir, with “ the south half of the house.” The line which divided the land did not divide the house into two equal parts, but a line drawn through the middle of the front door and thence at right angles through the house was twenty-six inches north of that line. Held that the house was divided by the same line that divided the land.</p>

<p>The act of 1864 provided that railroad and horse railroad companies should pay a tax of one-fourth of one per cent, on the market value of their capital stock, and their funded and floating debt, and that this tax should “lake the place of all other taxes on railroads and horse railroad property and franchises within this state.” Held that all the property oí a railroad company was exempted by the act from all other taxation, whether used for railroad purposes or not. [Two judges dissenting.]</p> <p>A construction of a statute which subjects property to double taxation is always to be avoided if practicable.</p> <p>And courts will incline against a construction which will increase rather than diminish the inequality of taxation.</p>

<p>By statute (Gen. Statutes, tit. 64, sec. 23,) the real estate of corporations “ above what may be required and used by them for the transaction of their appropriate business,” is taxable in the town where situated. Held that a railroad company could provide such wharves and docks as would accommodate its business when most abundant and pressing; and that the fact that such accommodations were not at all times in use by the company did not show that they were above what was required for its appropriate business.</p> <p>Where the wharves were used to some extent by vessels with freight not intendc d for the railroad company, and in which it had no interest, and for which ui e the railroad company charged wharfage, but such use was at times when the wharves were not needed for the use of the company and was in subordination to that use — it was held that this fact did not render the property taxable as above what was needed for the appropriate business of the company.</p> <p>A portion of a building upon the dock was leased by the railroad company to a steamboat company for the storage of freight. Whether this portion of the property would not become liable to taxation : Qucere.</p> <p>The railroad company was authorized by its charter to own and run steamboats in connection with its road. Instead of doing this it made an arrangement with a steamboat company in which it had no interest, to run its boats from its wharves, freight being way-billed through and the gross receipts divided in certain agreed proportions. The court inclined to regard the arrangement as an indirect mode of exercising its charter rights with regard to running steamboats, and the premises used by the steamboat company as not liable, by reason of such use, to local taxation.</p> <p>But whether so or not, yet clearly the whole property was not rendered taxable by reason of such renting to the steamboat company.</p>

<p>Appeal to the Superior Court iu New Haven County, from an assessment by the authorities of the city of New Haven for the expenses of paving Whalley avenue, a street of the city. The grounds oi the appeal were stated in the petition as follows:—</p> <p>1. That the assessment was not laid according to law.</p> <p>2. That the pavement was a repair and not a¿n original work.</p> <p>8. That the sum of $14,629.50, assessed against the property holders, was not a proportional and reasonable part of the expense of the pavement.</p> <p>4. That the sum of $851 assessed against the appellant was not a proportional and reasonable part of the amount assessed against the property holders.</p> <p>5. That the pavement does not cover the whole width of the avenue, but only a space twenty-five feet wide in the center of the roadway.</p> <p>6. That the avenue is a thoroughfare, and the part covered by the pavement is constantly used by the city and by the general public.</p> <p>7. That the property of the appellant is not specially benefited by the pavement.</p> <p>The case was referred to a committee, who made the following report:</p> <p>In the year 1871, the city of New Haven caused a certain McAdam pavement, known as the Telford pavement, to be laid in Whalley Avenue, from Park street westerly to West River bridge, a distance of eight thousand six hundred and twenty-eight feet, at a cost of $88,530.08. The pavement is about twenty-five feet wide, leaving a strip of ordinary road bed on either side fifteen feet or more in width. Adjoining the pavement on the southerly side is the track of the Fair Haven & Westville Horse Railroad Company. The sum of $1-1,629.50 was assessed by the city, pursuant to the charter and ordinances, upon the proprietors on either side of the avenue, between West River bridge and Howe street. The distance between these points is eight thousand and eighty-two feet. The exact cost of the pavement between those points cannot be ascertained, but I estimate it approximately at $36,000. It was not the intention of the city officials to assess any portion of the cost of the pavement between Howe street and Park street, a distance of five hundred and forty-six feet, upon the proprietors, but by inadvertance the sum of $38,580.08 was taken as the basis of calculation.</p> <p>An ordinance of the city authorizes the city to assess two-thirds of the cost of such improvements upon the property holders who are specially benefited thereby; but in view of the fact that this avenue was not paved from curb to curb, they assessed only one dollar per front foot, which amounted in the aggregate to five-eighths of the required two-tliirds or five-twelfths of the whole cost. Had they taken only the cost from Howe street to the bridge ($86,000)as the basis of calculation, and assessed in the same proportion, the assessment would have been about ninety-three cents per front foot. But the sum assessed amounts to much less than two-thirds of the actual cost, being in fact about two-tliirds as much, or four-ninths of the whole. No part of the cost of the pavement was assessed against the Horse Railroad Company.</p> <p>In 1852 the town of New Haven laid down a pavement about eighteen feet in width through the center of Whalley Avenue, which greatly increased the value of the adjoining property. No portion of the cost of that pavement was assessed upon persons whose property was specially benefited thereby. In 1871 that pavement was nearly worn out, and that part of the road bed was in a bad condition. The avenue then was and now is ninety-five feet wide, and is one of the most important thoroughfares leading from the city to the country, and the amount of travel thereon, especially heavy teaming, equals, and perhaps exceeds, the travel on any other street leading into the city.</p> <p>The city at first ordered the pavement to be repaired. Under this order little or nothing was done. They subsequently ordered a now pavement to be laid twenty-five feet in width. In laying this pavement the grade of the street was somewhat changed, and the old pavement was mostly taken up. Some small sections, where the grade would permit, less than one-quarter of the whole, were left as a foundation for tho new pavement. The whole improvement was substantially a new pavement, and not merely a repair of the old. The lots abutting on the street, and which were assessed for the improvement, vary in depth from eighty-five feet to two thousand feet. Some of them are improved and some are vacant lots. Tho assessments were uniformly one dollar per front foot. The horse railroad track is four feet eight inches wide. There is no pavement between the rails, nor on the south side of the track. Tho charter of the Horse Railroad Company requires the company to maintain and keep' in repair the street between the rails and a space two feet wide on either side of the track. The amount assessed upon the property owners, added to such reasonable sum as ought to be assessed upon the Horse Railroad Company, would in the aggregate be less than two-thirds of the whole cost of the improvement, and a reasonable and proportional sum for the parties specially benefited to pay.</p> <p>If, upon these facts, the property holders, exclusive of the Horse Railroad Company, are liable to assessment, I find that the sum of $14,629.50 is a proportional and reasonable part of the expense of the pavement to assess against them.</p> <p>If so liable, and the Horse Railroad Company are exempt, or, if not exempt, and the omission to assess them does not invalidate tho assessment made against the others, I find that the sum of eight hundred and fifty-one dollars, which is much less than the whole benefit received, is a proportional and reasonable part of the amount assessed against the property holders, for the applicant to pay, which sum I assess upon him accordingly. But if, upon these facts, the law is so that the appellant is not legally liable to assessment, or if legally liable, and the omission to assess tlie Horse Railroad Company invalidates any assessment against him, then 1 make no assessment against him.</p> <p>Upon the hearing before the committee the appellant offered evidence, under the allegation in his petition “ that said assessment was not laid according to law,” as follows: 1st. To prove that the board of compensation had never been appointed as such, by the common council of the city. 2d. That the common council had never referred the matters of assessment to the pretended board of compensation.' 3d. That there was no notice given to the appellant for a hearing as to the assessment before the court of common council. The counsel for the city objected to this evidence, on the ground that these facts wore not specified in the petition as ground for relief, and because it was averred in the petition that the laying of the pavement was in pursuance of the coi’porate powers of the city; and the committee ruled out the evidence.</p> <p>The appellant filed a remonstrance against the acceptance of the report on the ground of this ruling of the committee.</p> <p>The questions whether the report should be accepted, and if accepted, what judgment should be rendered in the case, were reserved for the advice of this court.</p>

<p>A widow with a considerable estate and no children deposited in a savings bank $250 in her own name as trustee for W. W was a boy thirteen years of age, whose parents were near neighbors and friends, and who was accustomed to do errands for her, being almost daily at her house for the purpose, she often giving him presents in return. Shortly after making the deposit she told the hoy’s parents that she had deposited that amount in the savings hank for their son, and again alluding to it remarked that W would need it for his education. She kept the hank book herself, and two years thereafter drew out a part of the money and a year later the balance with accrued interest, signing receipts in her own name, and appropriating the money to her own use. She died four years later, leaving a will in which no allusion was made to the deposit and nothing was given to W. It was found by the court below that at the time she made the deposit she intended to make a gift of the sum to W, to take effect either then or at some future time. Held that she made a complete gift at the time of the deposit and could not afterwards revoke it. [Two judges dissenting.]</p> <p>And held that the trust was to be regarded upon the facts as only for W’s minority, and that upon his becoming of age the legal title would vest in him without any further act to end the trust.</p> <p>Whether a legal title to the money did not instantly vest in W upon the donor’s drawing out and appropriating it in violation of the trust: Quaire.</p>

<p>Trespass, qu. cl.fr., brought to the Superior Court in New Haven County. Facts found, and case reserved for advice. The case is sufficiently stated in the opinion.</p>

<p>Bill in equity, praying for a decree dissolving the respondent corporation; brought to the Superior Court in New Haven County.*</p> <p>The petition alleged that the petitioner was the owner of ten shares of the capital stock of the Boston, Hartford & Erie Railroad Company, a corporation established by and organized under the laws of Connecticut; that the corporation, on the 19tli day of March, 1866, by its deed of mortgage, afterward confirmed by the laws of this state, conveyed to certain trustees all its railways, franchises, charters, and property then owned or thereafter to be acquired for railway uses, a copy of which mortgage was annexed to the petition; that the corporation afterward, on or about the 2d day of August, 1870, became utterly insolvent, and upon the petition of George Ellis, one of its stockholders, preferred to the Superior Court in Hartford County, was by that court, by a decree passed with the consent of the corporation, enjoined against the farther prosecution of its railway business, and all its property transferred to George M. Bartholomew and others as receivers; that afterward the receivers were ordered by the court to deliver over all the property to the trustees under the mortgage, and that the same was accordingly delivered over to them on or about tlie 17th day of September, 1871; that afterward, by the expiration of the period of eighteen months thereafter and in accordance with a certain decree of foreclosure passed in the suit in Hartford County, the title to all the mortgaged property became absolute in the trustees, as such; that afterward, on the 17th day of April, 1873, the holders of the mortgage debt were duly called together pursuant to the provisions of the mortgage, and mot at Boston, in the state of Massachusetts, pursuant to said call, and voted to form a corporation by the name of the New York & New England Railroad Company, and thereupon did form such corporation, which now had a right to all the franchises of the respondent corporation, and had been duly recognized as entitled to the same by the laws of Connecticut, and its organization fully ratified and confirmed; that since on or about the 2d day of August, 1870, the respondent corporation had wholly abandoned the business for which it was organized; and that on or about the 21st day of October, 1870, a petition in bankruptcy was filed agáinst it in the District Court of the United States for the district of Massachusetts, wherein it then had a place of business, upon which it was afterward adjudged a bankrupt, and assignees appointed to receive a conveyance of all its assets, to whom the same were afterward duly conveyed, and who were now engaged in settling its estate before that court; that the respondents had done no corporate acts since on or about the date of the appointment of the receivers, and had ever since and for an unreasonable time neglected to wind up their affairs and distribute their effects among their stockholders; except so far as they voted to wind up their affairs- by agreeing to the appointment of receivers; and that the respondents had not surrendered their charter to the state by any formal act in that behalf; that the last principal place of business of the corporation, within this state, and its present principal place of business, was at the railroad station in the town of Waterbury; and that Henry Stoddard, of New Haven, and other residents of New Haven County, were stockholders of the corporation. The petitioner thereupon prayed that the court, on finding the allegations of the petition to be true, would wind up the affairs of the respondent corporation, and decree that the same be dissolved.</p> <p>The respondents filed an answer and the petitioner a replication, the matters set up in which appear sufficiently in the finding of facts. The following facts were found by a committee :</p> <p>The respondents are a corporation duly incorporated and organized by and under the laws of this state, in the year 1863. The petitioner has been since the year 1868, and still is, the owner of ten shares of the capital stock of the corporation, and Henry Stoddard, residing in the county of New Haven, is the owner of one share of the stock, and'has owned the same since September, 1869.</p> <p>The corporation had an office and principal place of business in this state, at the railroad station in Waterbury in New Haven County, until the winter of 1869--70, when it failed to pay its obligations and ceased to work on its road. It did not appear in evidence that this office was ever subordinate to any other office of the company in Connecticut, or that any business had been done there by it since about that time, or that there had been any removal of the office or formal abandonment of it or substitution of any other office for it. It was therefore found that the corporation has its office and principal place of business in said Waterbury.</p> <p>The respondents, on the 19th day of March, 1866, mortgaged their property by deed to trustees, Robert II. Burdell, Dudley S. Gregory and John C. Bancroft Davis, and the survivor of them and his and their successors and assigns, to secure certain bonds, known as the Burdell mortgage bonds, as set forth in the petition, which mortgage was afterwards confirmed by an act of the legislature of this state. But it did not appear whether this mortgage included all the property then belonging to the corporation or now in its hands or in those of the trustees, or of those having or claiming the rights of either or of the creditors of the corporation.</p> <p>The corporation made default of payment of the interest due on the bonds, as expressed in the deed, upon the 1st day of January, 1870, and the same has been ever since and still is wholly due and unpaid.</p> <p>A.t the July term, 1870, of the Superior Court for Hartford County, upon the petition of George Ellis, making the Boston, Hartford & Erie Railroad Company and said trustees and John S. Eldridge, Mark Healey, Henry W. Earwell, Idiomas Talbot and Moses Kimball, real or pretended successors to the original trustees, respondents, (which cause is still pending in that court and subject to its order,) it was ordered and decreed, with the consent of all the parties, that James W. Converse, George T. Olyphant, George M. Bartholomew, Alexander II. Rice and James G. Gardiner, should be receivers of the railroad, and that the railroad company should deliver to them all its property of every kind situated in the state of Connecticut; the decree vesting the legal possession and control of the property in the receivers,, to he managed and accounted for as prescribed in the decree, and enjoining the respondents from interfering in any manner with the property, except to deliver it to the receivers. And the property was afterwards delivered to the receivers .in pursuance of the decree.</p> <p>At the December term, 1870, of the Superior Court fo,r Hartford County, James C. Ayer was made, by order of court, a party plaintiff in the cause therein pending.</p> <p>At the March term, 1871, of the last named court, upon the petition, answers, and an agreed statement of facts filed in .the cause, and upon the consent of all parties thereto, it was decreed that Moses Kimball, Thomas Talbot and Avery Plumer, then were the duly constituted successors to the original trustees, and in law-the present trustees, under the mortgage of March 19th, 1866, and vested with all the property, franchises, rights, interest, trusts and powers conveyed by the mortgage to the original trustees, and that upon the performance of'certain conditions in the decree specified, the receivers appointed by the court should deliver into the possession of the trustees, or their successors in office, all the railways, property and franchises which they should have in ' their hands or possession or under their management or control as such receivers, and giving to such trustees when so put in possession the powers and duties prescribed for them by the terms of the original Burdell mortgage, upon taking possession for a default in the payment of principal or interest on the bonds thereby secured; and further decreeing that, if default in the performance of the condition of the mortgage should continue for the space of eighteen months after notice filed, as provided in the mortgage, the whole of the mortgaged premises and franchises conveyed by the mortgage should vest absolutely and in fee in the trustees and their successors in office without further assurance and without further process of law, and that all equity of redemption of the Boston, Hartford & Erie Railroad Company therein .shouldbe forever barred and foreclosed; and that the receiv.ers'should continue in office until the transfer should be effected upon the performance of the conditions required prior thereto, and until the further order of the court the receivers are still in office.</p> <p>At the July term, 1871, of the last named court, it was decreed that William T. Hart, Charles P. Clark and George T. Olyphant, then were by valid succession and appointment the trustees, under the mortgage of March 19th, 1866, and the successors in the trusts thereby created, and upon the petition of James C. Ayres, they were admitted as parties respondent in the cause then pending in court.</p> <p>Afterwards, on or about the 13th day of September, 1871, the property referred to in the decree passed at the March term, 1871, was in pursuance thereof delivered over to the last named trustees, and they took possession of all the property described in the decree and in the Burdell mortgage, and thereupon filed due notice, under date of September 13th, 1871, of sncli possession and of their purpose to foreclose the mortgage as provided in the mortgage deed, which notice was filed in the office of tlio secretary of each of the states of Massachusetts, Rhode Island, Connecticut and New York, on or before the 16th day of September, 1871.</p> <p>The default in the payment of interest continued for a period of eighteen months after the filing of the notices, and thereupon, by the terms of the decree and of the mortgage, the foreclosure and the title to the property becaine absolute on the 17th day of March, 1873.</p> <p>On the 17th day of April, 1873, pursuant to a call by the last named-trustees in conformity with the provisions of the Burdell mortgage and of the decree, a meeting was held at Boston, of the holders of the Burdell mortgage bonds, and by the meeting a corporation was organized under the name of the New York & New England Railroad Company, and a hoard of fifteen directors was chosen. At this meeting eighty-two holders of the Burdell mortgage bonds, holding in all 5,812 of the bonds of $1,000 each, were present and took part in tlio proceedings. And a copy of these proceedings was duly filed in the office of the secretary of this state; and the proceedings have been confirmed by a resolution of the legislature of this state, and the new company declared a corporation, and empowered to receive conveyance and take possession of the property in the hands of the trustees. But whether a conveyance has been made to -the new corporation by the trustees did not appear.</p> <p>On the 21st day of October, 1870, a petition in bankruptcy was filed against the Boston, Hartford & Erie Railroad Company, in the District Court of the United States for the district of Massachusetts, in which district the company then had an office and place of business, and the company was thereupon adjudged a bankrupt, and assignees appointed, who received from the register a conveyance, in the ordinary form prescribed by statute, of all its assets; and proceedings upon the petition are still pending in that court, and the assignees are still acting as such. The respondents held an annual meeting'of the corporation at Boston, on the 6th day of September, 1870, at which a board of fifteen directors was chosen. This was the last meeting of the stockholders of the company, so far as appeared in evidence. John Rooney, of the city and state of New York, is acting as their president. The time and manner of his election did not appear. He was not one of the directors chosen at the stockholders’ meeting on the 6th of September, 1870. These directors and the president have not in their possession or under their control any of the original books, or any of the property of the respondents, and have not had since about the time of the appointment of the receivers. They have from time to time employed legal counsel in the above and other legal proceedings, and by such counsel have appeared and acted therein; but so far as appeared in evidence the respondents have done no other corporate act since the property came into the hands of the receivers. The corporation has never voted to wind up its affairs and has never surrendered its charter to the state by any formal act.</p> <p>At the time of the appointment of receivers and for a considerable period prior thereto, the principal office of the Boston, Hartford & Erie Railroad Company was at Boston, its principal transfer books were kept there, as also its principal books and records, its treasurer bad liis office there, and its annual meetings were held there.</p> <p>Down to the last election of officers at the stockholders’ meeting on the 6th day of September, 1870, at Boston, there always was but one set of officers for the corporation; namely, one president, one secretary, one treasurer, and one board of directors, who were annually elected.</p> <p>There remain outstanding and unpaid over two million dollars of mortgage bonds which are a prior lien to the Bur-dell mortgage.</p> <p>All the Burdell bonds are outstanding and unpaid (except so far as the foreclosure may have operated as a satisfaction thereof), except one bond of $1,000, which is in the possession of the assignees in bankruptcy.</p> <p>On the 31st day of July, 1868, the value of the l’oad and property of the respondents was estimated, by commissioners of the state of Massachusetts, to be of the value of at least $12,000,000. Since this estimate was made, a considerable amount has been expended in construction and the purchase of rolling stock.</p> <p>The respondents, at the time of the appointment of the assignees in bankruptcy, had property or assets other than those covered by the Burdell mortgage, which passed to the assignees.</p> <p>No evidence was offered by the respondents, except as above, as to the present value of the property now or formerly in their hands, or now in the hands of those representing their creditors, compared with their liabilities, and very little evidence to that point was offered by the petitioner; but from the evidence offered it is found that the property is not sufficient to pay the Burdell bonds, the market value of the bonds being now twenty-three cents on the dollar, and that the stock of the respondents has no appreciable and no market value.</p> <p>The petitioner was, at th« time of the meeting of bondholders held April 17th, 1873, one of the trustees under the Bur-dell mortgage, and took part in the meeting, and was chosen a director of the New York & New England Railroad Company and its president, and the meeting voted to authorize the board of directors to adjust and settle the accounts of the trustees, and for an exchange of the Burdell bonds for the stock of the New York & New England Railroad Company ; but the allegations of the respondents’ answer with regard to the fraudulent ownership of the bonds and a fraudulent conspiracy on the part of the petitioner and others, and the existence of a fraudulent purpose on the part of the petitioner in the acts done at the meeting, were not proved.</p> <p>The stock of the respondents has been quoted in market, until within a month or two, as valued at about $2 per share, but the allegations of the petitioner, in his replication, as to a purpose on the part of the respondents and their agents to speculate therein, were not proved.</p> <p>From the facts above set forth it is found that the respondents have abandoned the business for which they were organized and have neglected for an unreasonable time to wind up their affairs and distribute their effects among their stockholders, unless the court should be of the opinion that the facts are not sufficient in law to justify such finding; and if the court should be of opinion that the facts aro not- sufficient to justify such finding, then such abandonment and neglect are found not to be proved..</p> <p>Upon these facts the case was reserved for the ad vico of this court.*</p>

<p>Replevin of goods claimed to be unlawfully detained by the defendants; brought to the city court of tlie city of New Haven, and tried before Harrison, J. General issue, with notice of proof that the goods were, and were attached by the defendants as, the property of one Patrick Bird. Facts found, and judgment rendered for the plaintiff. Motion in error to this court by the defendants. The case is sufficiently stated in the opinion.</p>

<p>A suit brought before a justice of the peace, claiming damages beyond the jurisdiction of the justice, was appealed by the defendant to the Court of Common Pleas, which had original jurisdiction of the subject matter. At the third term after the entry of the case in that court, the defendant moved that it be erased from the docket, on the ground that the justice had had no jurisdiction of the cause, and that the Court of Common Pleas had acquired none by the appeal. The defendant had appeared in the case at the term of the court at which the appeal was entered, and had continued his appearance until the motion to erase was filed; and there was a rule of court requiring all pleas other than the general issue to be filed during the first week of the first term. Held — 1. That the case was to be regarded as having been irregularly brought before a court of competent jurisdiction. 2. That the defendant had waived the irregularity and submitted himself to the jurisdiction of the court.</p>

<p>Amicable submission to the Superior Court in New Haven County, upon the following agreed statement of facts:</p> <p>On the 17th day of March, 18.68, one Daniel S. Lemmon made a loan of $1,600 to George A. Monson, upon his executing with Frank S. Monson and Stiles F. Monson the following note:</p> <p>“ Woodbury, March 17,1868.</p> <p>“ For value received I promise to pay to Daniel S. Lemmon sixteen hundred dollars, on demand, with interest at six per cent, and all taxes. George A. Monson.</p> <p>Frank S. Monson.</p> <p>Stiles F. Monson.”</p> <p>All the parties lived in Woodbury in this state. Stiles F. Monson was the father, and Frank S. Monson the brother, of George A. Monson, and both signed the note as sureties for him.</p> <p>In December, 1868, Lemmon believed the responsibility of the signers of the note to be much impaired, and required of George A. Monson further security, either by mortgage or by one or more additional names upon the note, and thereupon his brother-in-law, Robert I. Drakeley, was, on the 23d of December, 1868, induced by George A. Monson to sign ihe note; which he did by writing his name under those of the other signers, without any qualification or explanation appended to his signature. As indemnity for his liability he at the same time took a mortgage from George A. Monson and his wife of certain real estate belonging to the wife, and he now holds the same. At the time Drakeley signed the note, there was no agreement by Lemmon in consideration thereof to give the signers of the note, or either of them, any additional iime for payment, and nothing on that subject was said. But without the signature of Drakeley, or some other additional security, Lemmon would have attempted without much further delay to collect the note from some one or all of those whose names were then signed to it, and Drakeley’s signature operated in fact to postpone the collection of the note.</p> <p>None of the other original signers of the note ever at any time requested Lemmon to proceed to collect the note from George A. Monson. He is now insolvent and has long been so, and the place of his present abode is unknown. But after Drakeley became a party to the note, he requested Lemmon to proceed against the other parties, and entered into a written obligation to pay the expenses of such litigation if it did not result in the collection of the note.</p> <p>Stiles E. Monson has since paid the whole note, and now claims of Drakeley a contribution of one-third the amount paid by him. Drakeley denies all liability to contribution.</p> <p>Upon these facts the case was reserved by the Superior Court for the advice of this court.</p>

<p>Assumpsit for money had and received and work and labor done; brought to the Superior Court in New Haven County. The following facts were reported by an auditor.</p> <p>In July, 1858, the defendant owned a claim for money against one Sturges, which he had put in suit by attaching certain property in Brooklyn, in the state of New York, in which he claimed that Sturges had a valuable interest; which interest other parties disputed.</p> <p>There was a mortgage for 82,000 on this property, which the defendant was advised it was necessary for the success of his suit to raise.</p> <p>In view of this necessity the defendant proposed to the plaintiff that if he would advance the sum required to raise the mortgage, and generally superintend the litigation, paying his personal expenses, the defendant would pay to him one-half of the net avails of the suit; hut if nothing should be recovered, the expenses of the litigation to he shared equally. This proposition was accepted by the plaintiff.</p> <p>Thereupon the plaintiff went to Brooklyn twice, with the sum necessary to raise the mortgage, and consulted the attorney in charge of the suit, paying his own traveling expenses. But the attorney did not on either occasion deem it necessary to raise the mortgage, and not long afterward the defence of the suit was substantially abandoned, and judgment was recovered, and about the first day of October, 1858, the defendant received, as the net avails of the suit, the sum of 1468.53, no part of which has been paid to the plaintiff</p> <p>The plaintiff was at all times ready to pay the sum required to raise the mortgage, and to do anything else that might be necessary by way of managing the suit; but owing to the settlement, nothing further was in fact done by or required of him than to make the two journeys to Brooklyn, with the money which he had raised for the purpose, paying his personal expenses, and to hold the necessary consultations on those occasions with the attorney in Brooklyn.</p> <p>If upon these facts the law should be so that the defendant was bound to pay to the plaintiff one-half of the net avails thus received, then the auditor found that the defendant was indebted to the plaintiff upon that account in the sum of 1234.27, for money had and received for the plaintiff’s use, October 1,1858, with interest from that date. If otherwise, that the defendant was not indebted to the plaintiff upon that account.</p> <p>There were other items in the accounts of the parties entering into the final result, about which no question was made.</p> <p>Upon these facts the case was reserved for the advice of this court.</p>

<p>A policy of insurance, made by the defendants against loss by fire, of goo Is of the plaintiffs, in their store in the city of Glasgow, Missouri, contained the usual proviso in such policies, that “the company shall not he liable to make good any loss or damage by fire, which may happen or take place by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power.” At the time of the insurance Glasgow was a military post, occupied by the forces of the United States engaged in the war of the rebellion, and was a depot for military stores, which were deposited in the city hall. In consequence of an attack made by a superior rebel force, the United States military commander, finding that the city could not he successfully defended, and to prevent the stores from falling into the hands of the rebels, ordered their destruction, and, as the only means of effecting it, the city hall was set on fire; whence the fire spread through three intermediate buildings to the store of the plaintiffs, and burned the insured goods. It was conceded that such setting on lire of the city hall by the military power of the United States was the proximate cause of the fire which destroyed the plaintiffs’ goods, unless the attack by the rebels was to he so regarded : and that such firing of the city hall was a lawful act and justified by the exigency and the motive for which it was done. Held — 1. That the fire which destroyed the plaintiffs’ goods did not happen or take place by means of the attack by the rebels on the city, nor by means of invasion or insurrection, riot, or civil commotion, within the meaning of the proviso in the policy. The attack by the rebels furnished a motive to the setting on fire of the city hall, but was not the proximate cause of the fire. 2. That the terms “ military or usurped power,” in the proviso, do not include the lawful acts of the military authorities of the government; but relate to organized unlawful force, acting in hostility to the government or in subversion thereof. A fire caused by the lawful orders of the officer in command of the military forces of the United States would not therefore be within the exception. 3. That the defendants wore liable for the loss.</p> <p>In determining the meaning of one of several terms that are associated in a, contract, the maxim “ noscitur a socüs ” is not conclusive; hut, in a case of doubt, and where a like meaning will satisfy the requirements of the general purpose, where there is no other clause or expression hostile to the like interpretation, and especially where other considerations tend to support it, the maxim has especial force and significance.</p> <p>Where there is an excepting clause in a general and positive agreement, the latter should have effect unless the exception clearly withdraws the case from its operation.</p> <p>It is the duty of an insurance company seeking to limit the operation of its contract of insurance by special provisos or exceptions, to make such limitations in clear terms and not leave the insured in a condition to be misled. The insured may reasonably be held entitled to rely on a construction favorable to himself where the terms will rationally permit it.</p>

<p>Probate of a lost will. Judge Carpenter of the Supreme Court was called in to sit, as a judge of the Superior Court, with the judge of probate of the district of Newtown, (under the statute authorizing it, Gen. Statutes, tit. 11, § 75,) in determining whether a document purporting to be a true copy of the will of David H. Johnson, deceased, should be admitted to probate. The facts arc giveu in the opinion. The case was heard, May 22d, 1874.</p>

Opinion of Hon.. O. S. Seymour, as arbitrator in a case between the trustee in insolvency of John H. Bowers and the administrators of Z. Joyce, deceased. The facts are sufficiently stated in the opinion.*

<p>An attorney has no legal claim upon a hushand for services and disbursements in defending his wife against a suit brought by him for divorce.</p> <p>The only mode of securing payment from the husband in such a case, is by an order of court for a sufficient allowance for the purpose.</p> <p>Where the wife is a respondent in a divorce suit the court usually makes suoh an order upon the husband.</p> <p>Where an attorney held in his hands certain funds; being the wife’s distributive share of her father’s estate, of which he was administrator, and the husband as statutory trustee of the wife brought suit against him for the same, it was held that it was not a sufficient accounting on his part to show that he had expended the funds in defending her against her husband’s suit for divorce.</p> <p>Property held by the wife to her sole and separate use may be subjected by her sole act to a charge for such expenses for her benefit; but property vesting by the statute-in the husband as trustee of the wife is not held by him in trust for her sole and separate use.</p>