Volume 45 — Connecticut Reports

The will was as follows: “I, Henry Drake, of Windsor, county of Hartford, Connecticut, of sound and disposing mind and memory, and mindful of the uncertainty of human life, do make, publish and declare the following as and for my last will and testament. “ First. I give and bequeath to my brothers, William Drake and Timothy Drake, to each of them, the sum of one thousand dollars to be paid by my executor from my estate. “ Second.

Amicable submission to the Superior Court in Hartford County upon the following agreed statement of facts; the parties to the submission being tbe First National Bank of Hartford, the Hartford Life & Annuity Insurance Company, and Niles P. Hough and Henry A. Whitman, executors of Wareham Griswold, late of Hartford, deceased.

Trespass on the case, for an injury by reason of the negligence of the defendants’ servant; brought before a justice of the peace, and appealed by the defendants to the Court of Common Pleas of Hartford County, and there tried to the court on the general issue, before McManus, J. The court made the following finding of facts: On the first day of March, 1876, the defendants were operators of a paper-mill in the town of Glastonbury and had in their employment one Smith, as a…

Assumpsit, brought to the Superior Court in Middlesex County, and tried to the court, on the general issue, with notice. of a set-off, before Hitchcock, J. Facts found and judgment rendered for the plaintiff, and motion in error by defendants. The case is sufficiently stated in the opinion.

Trespass on the case for an injury to the plaintiff by reason of the negligence of the defendants; brought to the Superior Court in Tolland County. The defendants suffered a default, and on the hearing in damages before a committee the facts were found and the damages assessed, upon one view of the law at $300, and upon another at $10. The court (Quiver, I.,') accepted the report and rendered judgment for the plaintiff to recover $300 damages.

Scire Facias upon a process of foreign attachment; brought to the City Court of the city of Hartford, and appealed by the defendants ‘from the judgment of that court to the Superior Court for Hartford County.

Petition in Equity, by the executors of James Root, for advice as to the .proper construction of his will; brought, to the Superior Court in Hartford County, and reserved, upon facts found, for the advice of this court. The case is fully stated in the opinion.

Replevin for a quantity of timber; brought to the Superior Court in Middlesex County. Facts found by a committee and the case reserved for advice. The case is fully stated in the opinion.

Assumpsit, brought by the plaintiff as administrator of one Mary Humphrey, to the Superior Court for Litchfield County.

Assumpsit for money received by the defendant’s intestate to the use of the plaintiff; brought to the Superior Court for Litchfield County, and tried to the jury on the general issue before Sanford, J. The jury having returned a verdict for the plaintiff, the defendant moved for a new trial. The facts are fully stated in the opinion.

Trespass qu. el. fr., brought to the Superior Court in Litchfield County. There were nine defendants, and judgment was rendered against five of them and in favor of the other four. These four claimed each a bill of costs, which claim was allowed by the court, upon which the plaintiff brought the. case before this court by-a motion in error. The facts are fully stated in the opinion.

Replevin for a horse, wagon and harness, claimed to be unlawfully detained by the defendant; brought to the District Court in Litchfield County, and tried to the court, upon the general issue, before Foster, J. Upon the trial the plaintiff claimed a special property in the articles in question by reason of their delivery to him as attached property by an officer in the state of Massachusetts, where they were attached, and of the following receipt given by him to the officer:…

Debt, on a probate bond; brought to the Superior Court in Litchfield County. The bond, -which was in the penal sum of three thousand dollars, was given by the defendant Holcomb, as trustee under the will of Sally Deming; the other defendant, Abraham Herman, being surety.

Assumpsit on a receipt given by the defendants to tlie plaintiff, a deputy sheriff of tlie county of New Haven, for certain property attached by him in a suit against the Watson Manufacturing Company; brought to the Superior Court. The following facts were agreed upon.

Information in tlie nature of a writ of quo warranto; filed by tlie Attorney for the State in the Superior Court for New Haven County at its January term, 1877.

Trover; brought to the Superior Court in New Haven County. The plaintiff brought at the same time with the present suit, and to the same court, another action of trover for the same articles against one Muldis Miller.

Assumpsit against the defendant as endorser of .a promissory note; brought to the Superior Court in New Iiaven County, and tried to the court, upon the general issue, before Hovey, J. The note was for $1,000, dated May 10th, 1870, payable to the order of Hervey B. Leete in five years after date with interest, and was endorsed in blank by the payee.

Assumpsit on a note executed by the defendant to the plaintiff; brought to the Superior Court in New Haven County. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

After a judgment-in the case in favor of the appellant, the city of Meriden filed a motion in error, assigning as error the want of jurisdiction on the part of the judge. The case is sufficiently stated in the opinion.

Replevin for property attached; brought to the City Court of the city of New Haven, and tried to the court on the general issue and a special plea in bar, before Peck, J. Facts found and judgment rendered for the plaintiff, and motion in error by the defendant. The case is sufficiently stated in the opinion.

<p>Petition for foreclosure; brought to the Superior Court in New Haven County, and heard before Hovey, J. Decree for petitioner and motion in error by respondents. The case is fully stated in the opinion.</p>

Replevin to recover possession of cattle impounded; brought to the' Superior Court in Windham County, and tried to the court on the general issue, with notice, before Culver, J. The court made the following finding of facts:— On the 17th day of June, 1876, the defendant was the lawful pound-keeper of a lawful pound in the town of Eastford; as such pound-keeper he received into the pound nine cattle, being the property of the plaintiff, having been lawfully brought there by…

Replevin for cattle claimed to be unlawfully detained; brought to the Superior Court in Windham County, and tried to tlie court on the general issue before Culver, J. The court made a special finding of the facts, and rendered judgment for the defendant. The plaintiff thereupon, filed a motion in error, and brought the record before this court.

Trespass qu. cl.fr., brought to the Superior Court in Fair-field County. The defendants pleaded the general issue, with notice that they should show that the acts complained of were done by the officers of the borough, under directions from the borough, in removing certain encroachments made by the plaintiff upon a public street of the borough, and were in pursuance of authority conferred upon the borough by its charter.

Petition for the dissolution of an injunction; brought to the Superior Court in Fairfield County, and reserved upon facts found for the advice of this court. The case is sufficiently stated in the opinion.

Debt on judgment; brought to the Superior Court in Fair-field County and tried to tlie court, on the general issue with notice, before Beardsley, J. Facts found and judgment rendered for the plaintiff, and motion in error by the defendants. The case is sufficiently stated in the opinion.

Bill for a foreclosure of a mortgage executed by the respondent railroad corporation to the petitioners as trustees for the holders of its bonds; brought to the Superior Court in Fairfield- County. - The New York, Housatonio & Northern Railroad Company, the respondent corporation, was a new corporation constituted by the consolidation of two previously existing railroad corporations, one of which bore the same name, and was located in part in this state and in part in the…

Scire Facias, upon a process of foreign attachment; brought to the Superior Court in Fairfield County, and tried to the court on the general issue with notice, before Beardsley, J. The following facts were found by the court.

Action for Slander, brought to the Superior Court in Fairfield County, and tried to the jury before Beardsley, J. Verdict for the plaintiff and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Petition for the laying out of a highway in the towns of Norwalk and Wilton, brought to the Superior Court in Fair-field County. A committee reported that the highway prayed for was of common convenience and necessity and laid out the same; the respondents remonstrated against the acceptance of the report; the court (Sanford, J.,~) over-ruled the remonstrance and accepted the report, and the respondents moved for a new trial for error in the decision of the court in so doing.

Debt on a probate bond, brought to the Superior Court in Fairfield County, and tried to the court on the general issue with notice. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Trespass for an assault, brought, by appeal from a justice of the peace, to the Court of Common Pleas of Fairfield County, and tried to the’ jury on the general issue, with notice that the act was done in self-defence, before De Forest, J. On the trial the plaintiff offered evidence to prove the facts charged.

Assumpsit against the defendant as endorser of. a promissory note; brought to the Superior Court in Fairfield County, and tried to the court, on the general issue, with notice.

Indictment for rape; brought to the Superior Court in New Haven County, and tried to the jury, on the plea of not guilty, before Sanford, 3.

Petition for a new trial after a conviction upon an indictment for rape; (see the case next preceding;) brought to the Superior Court in New Haven County, and reserved, upon a finding of the facts, for the advice of this court. The cáse is fully stated in the opinion.

Information for burning a dwelling house with intent to defraud an insurance company; brought to the Superior Court for the county of New Haven, and tried to the court, (upon the defendant’s election so to be tided under the statute,) upon the plea of not guilty, before Parle, O. J. The information charged as follows: “That on the 14th day of June, 1877, at the town of New Haven, John Byrne of said New Haven, with force and arms, wilfully and feloniously did burn a certain…

Trespass on the case for an injury to the plaintiff through the negligence of the defendants, a horse railroad company, brought to the Superior Court in New Haven County, and heard in damages, after demurrer overruled, by Hitchcock, J. The court made the following finding of facts: , At the time of the injury complained of the plaintiff was nine years and eleven months old; he was of ordinary mental capacity, and could read and write.

Assumpsit on a promissory note, brought to the Court of Common Pleas of New Haven County, and tried to the court before Peck, J. Judgment for plaintiffs and motion for a new trial by defendant. The case is fully stated in the opinion.

Petition in chancery, to compel the respondent city to pay to the petitioner, a mortgagee of certain land taken for the extension of a city street, compensation for the land so taken; brought to the Superior Court, and reserved, upon a demurrer to the petition, for the adyice of this court. The case is sufficiently stated in the opinion.

Wheeler, deceased, in allowing a claim of one Antoinette M. Wheeler; brought to the Superior Court in New Haven County. The report of the commissioners was returned to the probate court on the first day of February, 1877, and the appeal was taken on the 12th day of April, 1877, and to the Superior Court to be holden on the 2d Tuesday of September, 1877.

Assumpsit upon a warranty of certain railroad bonds sold by the defendants to the plaintiff; brought to the Superior Court. The facts were found by a committee, and judgment rendered by the court (üXovey, J.,~) for the plaintiff. Motion in error by the defendants. The case is fully stated in the opinion.

Petition to the Superior Court for advice as to the construction of the will of Catherine P. Beard, the petitioner being administrator of her estate with the will annexed. The respondents were the American Home Missionary Society and the heirs at law of the testatrix.

Writ op Error to reverse a judgment of the Court of Common Pleas in New Haven County in favor of the defendants in an action of assumpsit for supplies furnished to a pauper; the case having been tried below on the general issue, closed to the court, before JPecJc, J., who made a finding of the facts. The case is sufficiently stated in the opinion.

the Cheshire Turnpike, and which was interfered with by the location of the defendants1 railroad, and to re-locate their road in such a way as not to interfere with the highway or obstruct or endanger travel thereon.

Debt on a recognizance; brought before a justice of the peace and appealed by the defendant to the Court of Common Pleas for New Haven County, and there tried to the court, on the general issue, with notice of a set-off, before Stoddard, J. Judgment for the plaintiffs and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Debt on a bond given for attached property; brought to 'the Superior Court in New Haven County, and tried to the court, on the general issue, with notice, before Ilovey, J. The bond was given under the statute (Gen. Statutes, p. 406, sec. 23,) which provides that when any estate shall be attached, the defendant may apply to a judge of the court in which the action is pending, to dissolve the attachment lien, upon the substitution of a bond with surety; later sections…

Petition in the name of the State, .by the board of harbor commissioners for New Haven harbor, to the Superior Court, for an injunction restraining the defendants, a corporation, from constructing a wharf or other structure from their own land into the harbor, beyond a certain limit, without the approval of the harbor commissioners.

Petition by the Insurance Commissioner of the state for the appointment of a receiver of the assets of a life insurance company, and for an injunction against its further prosecution of business and an annulling of its charter; brought under the act of 1875, (Session Laws of 1875, p. 12,) to the Superior Court in'New Haven County. The respondents filed an answer, to which the petitioner replied and demurred; and the respondents demurred to the' replication.

Habeas Corpus, in the Court of Common Pleas of New Haven County. The court issued the writ upon the application of the plaintiff, who alleged that he was held in custody by the defendant.

Trespass for taking a horse, with a count in trover; brought to the Court of Common Pleas. The plaintiff sued as statutory trustee of the property of his wife. The defendant set up in defense a levy upon the horse, made by him as a constable, of an execution against tlie plaintiff personally. The court (Stoddard, J.,) made a special finding of the facts and rendered judgment for the defendant. The plaintiff brought the record before this court by a motion in error.

Assumpsit, brought to the City Court of the city of New Haven. The case was brought to the June term of the court in 1877, and entered upon the docket; the defendant appeared by his attorney and the case came by legal continuances from the June term, through the July, August, September and October terms, to the November term of the court, and at all of these terms the plaintiff and defendant both appeared by their respective attorneys.

Assumpsit to recover the price of a plaster bust made for the defendant; being the same case in which this court granted a new trial, ante Yol. 44, p. 218. The case came again before the Court of Common Pleas, and was tried to the court upon the former plea of the general issue, before Pede, J. There had been a special finding of the facts by the court upon tlie former trial, which is given in full in the former report of the case.

Petition for an injunction against interference by the respondent with the right of the petitioners to the use of water from a spring; brought to the Superior Court in Tolland County. The following facts were found by the court: On 3d day of January, 1860, and for some time before, the Hockanum Company owned a tract of land in the town of Yernon, on which was a spring of water. North of this land and adjoining it Andrew.

Trover, with a count in trespass; brought to the Superior Court in Middlesex County, and tried to the jury on the general issue, before Park, Q. J. The declaration was as follows: Then and there to answer unto Susan E.' Smith, wife of Whitby M. Smith, of said East Haddam, a- married woman, carrying on business, in a plea of the case, whereupon the plaintiff declares and says that on the 8th day of February, 1875, she was possessed of certain articles of personal property, to…

Petition in equity to the Superior Court in Middlesex County, asking the advice of the court as to the construction of the will of Henry M. Stannard, the petitioners being administrators of his estate with the will annexed. Facts found and case reserved for advice.

Bill in Equity for a disclosure and account, the payment of moneys found due, and the appointment of a receiver of partnership property; brought to the Superior Court in Middlesex County. The facts were found at great length by a committee and the case reserved for advice. The disposition made of the case by this court renders it unnecessary to state the facts more fully than they are given in the opinion.

Assumpsit on a policy of insurance, brought to the Superior Court in Middlesex County, and tried to the jury on the general issue, with notice of a claim that the policy had been rendered void by a change of the title and possession of the property insured, before Martin, J. The plaintiffs were trustees of the convertible mortgage bonds of the New Haven, Middletown & Willimantic Railroad Company, by succession to the original trustees under the mortgage, and as such trustees…

Debt, to recover the amount of an assessment for the expense of the laying out of a city street, near to a schoolhouse of the defendants, an incorporated school district of the town of Hartford. The action was brought to the Superior Court in the county of -Hartford, and tried to the court before Hovey, J., who made a finding of the facts and rendered judgment for the plaintiffs. The defendants brought the record before this court by a motion in error.

Assumpsit, to recover back money claimed to have been paid under a mistake of facts; brought to the Court of Common Pleas of Hartford County. The facts were found by a committee, and on the facts the court (McManus, J.,~) rendered judgment for the plaintiffs. The defendant brought the record before this court by a motion in error. The case is sufficiently stated in the opinion.

Petition in equity by the executors of the will of Samuel Hiilhouse, deceased, for advice as to the construction of/the will; brought to the Superior Court in Hartford County.

Assumpsit, brought to the Superior Court in Hartford County. The defendant pleaded in abatement, the plaintiff traversed the plea, and the court (Martin, J.,~) found the allegations of the plea to be true and rendered judgment upon it for the defendants. Motion in error by the plaintiffs. The case is sufficiently stated in the opinion.

Assumpsit on a policy of insurance issued by the defendants, a life insurance company, upon the life of James B. Colt, in favor of one A. B. West, by whom it was assigned for a valuable consideration to the plaintiff; brought to the Superior Court in Hartford County, and tried to the jury on the general issue, with notice that the defendants should claim that the policy had become void by reason of a breach of one of its conditions by the assured, before Beardsley, J. The…

Assumpsit on a promissory note ; brought to the Superior Court in Hartford County, and tried to the court, on a special plea in bar, before Culver, J. Facts found and judgment rendered for the plaintiffs, and motion in error by the defendant. The case is fully stated in the opinion.

Trespass for taking and carrying away certain personal property, with a count in trover; brought to the City Court of the city of Hartford, and faded to the court before Sumner, J. Facts found and judgment rendered for the plaintiff. Motion in error by the defendant on the ground that the court erred in the rule of damages. The case is fully stated in the opinion.

Assumpsit to recover the price of certain real estate purchased by the defendant at an auction sale, brought to the Superior Court in Hartford County. The defendant .pleaded the general issue, with notice that he would show that the purchase of the property was made upon false representations of the plaftitiff at the sale that the quantity of land was greater than it was in fact.

Bill in Equity for a contribution and. foreclosure; brought to the Superior Court in Hartford County.

Assumpsit on a guarantee of a note by the defendants, with the common counts; brought to the Superior Court in Fair-field County, and tried to the court on the general issue.

Bill in equity for the cancellation of a note and an injunction against the prosecution of an action at law upon it; brought to the Superior Court.

Judgment that the defendant was guilty of contempt. Motion in error by defendant. The case is sufficiently stated in the opinion.

Replevin for two watches and a chain, claimed to be unlawfully withheld; brought to the Court of Common Pleas for Fairfield County, and reserved, upon a finding of the facts, for- the advice of this court. The case is sufficiently stated in the opinion.

Action on the case against tlie defendant town, for constructing a bridge and road in sucli a manner as to set the water of a stream back upon the land of the plaintiffs; brought to the Court of Common Pleas of the county of Fairfield.

Bastardy process, brought before this court by a motion in error from a judgment for the plaintiff in the Court of Common Pleas. The decision of this court will be understood from the opinion, without a statement of the facts.

Scire Facias upon a foreign attachment; brought to the Court of Common Pleas, by appeal from a justice of the peace, and tried to the court before Be Forest, J. The following facts were found by the court: In February, 1877, George Whitely, the defendant in the factorizing suit, had gone into the employment of the defendants, a manufacturing company doing business at New Britain.

Writ op Error from a judgment of the Court of Common Pleas of Fairfield County to this court, to reverse a decree of that court in favor of the defendants in error upon a petition brought by them against the plaintiffs in error; for the foreclosure of a builders’ lien. The case is fully stated in the opinion.

Trover to recover the value oi property attached by the defendants, which the plaintiff claimed to be exempt from execution; brought, by appeal from a justice, to the Court of Common Pleas of Fairfield County. After a verdict for the plaintiff the defendants filed a petition, under Gen. Statutes, p. 426, secs. 17,18, to be allowed to set off against the judgment a judgment which fliey held against the plaintiff.

Scire Facias upon a process of foreign attachment; brought by appeal from a 'justice of the peace to the Court of Common Pleas in Fairfield County, and tried to the jury on the general issue before JDe Forest, J. The defendant and one Joseph A. Rand entered into the following agreement on the first day of February, 1876. “This agreement between Joseph A; Rand, party of the first part, and Charles E. Alvord, party of the second part,witnesseth — That whereas said party of the…

Bill in Equity, to set aside certain conveyances of real estate, to remove a cloud from the title, and to confirm the title of the petitioner to the property, or for a sale of the same and the payment to the petitioner of what should be found to be her share of the proceeds of the sale; brought to the Superior Court in Fairfield County. The respondent filed an answer, and the following facts were found upon the bill and answer.

<p>The libellants were the owners of an ancient pier extending several hundred feet into New Haven harbor, which had been constructed and maintained under sundry resolves of the legislature, which authorized the collection of certain wharfage upon goods discharged upon or shipped from it, and made such wharfage a lien upon the vessels. The proprietors of the undivided lands of the town had granted the land necessary for the pier, and as an inducement to the undertaking had voted that no other wharf should be established upon the east side of it within three rods. Afterwards the libellants agreed with a canal company that the latter might run an embankment and wharf from a point on the east side of their pier to the mainland, enclosing a large basin for the boats of the canal, which, with the goods transported by them, were to be exempt from wharfage for that part of the pier taken into the basin, the libellants retaining every other right before possessed. The canal was afterwards abandoned and the basin filled up, the rights of the canal company as to the basin and pier becoming vested, with the libellants’ consent, in a railroad company; the libellants neither then nor afterwards relinquishing, either expressly or by non-user, any further rights of wharfage. Afterwards, another railroad company acquired from the company before mentioned the right to construct, and constructed, a pier extending into the harbor from the basin wharf, parallel with and about four hundred feet from the libellants’ pier. At this pier a coasting vessel discharged and received goods, which were transported to and from the mainland over the basin wharf and that part of the libellants’ pier which had adjoined the canal basin and which was now a part of the mainland. Held, in a libel of the vessel for wharfage upon the goods—</p> <p>1. That while that part of the pier had become a public highway for all other purposes,'it was still a part of the libellants’ pier as to all freight transported over it to and from vessels.'</p> <p>2. That the protection of the libellants by the vote of the proprietors of undivided lands, from any other wharf within three rods, did not operate to limit their rights to the case of freight discharged from or delivered to vessels within that distance.</p> <p>3. That the goods in question were therefore liable to pay wharfage.</p> <p>4. That as the law gave a lien upon the vessel for the wharfage, it was a proper case for the libel of the vessel in a court of admiralty.</p> <p>The construction given by the Supreme Court of Connecticut in Union Wharf Co. v. Hemingway, 12 Conn., 293, to the resolves of the legislature of Connecticut under which the libellants claim, must be accepted as the proper construction of those resolves.</p>

Action of debt on a judgment; in the District Court of the United States for the District of Connecticut, February term, 1879. The case is fully stated in the opinion.