Volume 47 — Connecticut Reports

<p>The defendant had been factorized as an executor, the debt attached Being a-legacy given by the will. Judgment having been obtained in the suit, and the defendant not paying as garnishee on demand, the plaintiff brought a writ of scire facias against him in his individual capacity, and malting demand on, him only in that capacity, hut setting out the factorizing proceedings in the declaratory part of the writ. The defendant pleaded the general issue, with, notice that he should offer evidence of certain facts with regard to. the condition of the estate. Held—</p> <p>1. That judgment could not he rendered against the defendant in hfs individual capacity, because the facts alleged did not show a liability in that capacity.</p> <p>2. That judgment could not he rendered against him as an executor, because he was sued only in his individual capacity.</p> <p>S. That the notice given under the general issue, of matters pertaining only to his liability as executor, was not sufficient to warrant a judgment against him as executor.</p>

Covenant beoken, with counts for money paid, &c., brought to the Court of Common Pleas of Fairfield County. The writ contained no ad damnum clause, and the court ([Beers, J.,') upon motion of the defendant ordered the case erased from the docket. The plaintiff filed a motion in error. The case is more fully stated in the opinion.

Assumpsit on a promissory note, by a holder against the makers; brought to the Court of Common Pleas of Fairfield County, and tried to the jury, on the general issue with notice, before Beers, J. Verdict for the defendants, and motion for a new trial by the plaintiff. The case is sufficiently stated in the opinion.

Assumpsit on a promissory note executed by the defendants jointly and severally, they being husband and wife; brought to the Superior Court in Fairfield County. The wife alone made defence. The following facts were found by a committee: A short time prior to May, 1876, the plaintiff loaned Samuel F. Peck, the husband of the defendant, Mary D. Peck, several sums amounting to $300 in all, taking Peck’s notes for the amount.

Assumpsit for the rent of a brewery; brought to the Court of Common Picas of Fairfield County. The following facts .were found by the court:— In June, 1878, the plaintiffs were the owners of the prop■erty described in the declaration, and on the 2d day of June, 1878, leased the same to George B. Montague, by a lease ■under seal, for the term of ten years from the 1st day of •June, 1873, which lease was not transferable without the ■consent of the lessors.

Bill in equity for an injunction and to set aside an award; brought to the Superior Court in Fairfield County. The facts were found by a committee and the case reserved for the advice of this court. The case is fully stated in the opinion.

Grandjuror’s complaint for the keeping open, on the day of an electors’ meeting, of a place where intoxicating liquors were reputed to be- exposed for sale and to be drunk on the premises; brought originally before a justice of the peace, and appealed by the defendant from the judgment of the justice to the Superior Court in Windham County, and in that court tried to the jury, on the plea of not guilty, before Hitchcock, J. Verdict guilty, and motion for a new trial.

Replevin for a quantity of goods; brought to the Superior Court in Middlesex County.

Scire Facias upon a process of foreign attachment; brought to the Superior Court in Hartford County, and reserved upon facts found for the advice of this court. The ease is sufficiently stated in the opinion.

Trespass on the case for an injury from a defective bridge of tlie defendant town; brought to the Superior Court in Hartford County, and tried to the jury on the general issue before Quiver, J. Upon the trial the plaintiff introduced evidence to prove, and claimed he had proved, that on the 5tli day of August, 1876, he was residing in the town of Windsor, in Hartford County, and then went into the neighboring town of Granby, after a quantity of lumber which ho had previously…

Two actions of debt on bonds given by John Eraney and' sundry sureties for the faithful discharge by him of the duties of collector of taxes for the city of Hartford; brought to the Superior Court in Hartford County. The cases were referred together to a committee' and a single finding of facts made for both; and upon the facts both were reserved for the advice of this court.

Bill to foreclose a builders’ lien; brought to the City Court of tlie city of Hartford and heard before Bennett, J. Bill dismissed, and motion for a new trial by the petitioner. The case is sufficiently stated in the opinion.

<p>The seventh section of the insolvent act (Gen. Statutes, tit. 18, ch. 11, part 2,) provides that any creditor residing in this state, who may have a claim amounting to $100 or more against anon-resident debtor owning property within this state, may bring his petition to the court of probate for the appointment of a trustee to take possession of the property, the petitioner showing to the satisfaction of the court that the claim is justly due. Held that by the term “claim justly due” was meant a matured claim.</p>

Facts found by a committee, a re-assessment made, and the case reserved for advice. The facts are sufficiently stated in the opinion.

Indictment for murder, in tlie Superior Court of Hartford County. Tlie indictment contained two counts, one charging the three defendants, Henry Hamlin, William Allen, and John H. Davis, as principals, with the murder of Wells Ship-man ; and the other charging Hamlin and Allen as principals and Davis as an accessory before the fact.

Indictment for murder, in tire Superior Court for Hartford County. Tlio prisoner was indicted with Henry Hamlin‘and John H. Davis for the murder of Wells Shipman, a watchman at the state prison, the murder having been committed in an attempt of the defendant and Hamlin, who were convicts, to escape from the prison.

Bill in Equity to set aside certain transactions of tlie respondent corporation, to compel the issuing to the petitioner of certain shares of its stock, and for an injunction, with a prayer for… Held: at which a vote was passed rescinding the vote of August 5th increasing the capital. The petitioner however was not present at this meeting, and received no actual notice of it, being out of the state.

Petition to the Superior Court for a decree dissolving the respondent corporation, the appointment of a receiver, and the winding up of its affairs, brought under the provisions of the statute, Gen. Statutes, p. 815, art. 5, sec. 2. The petitioners were more than one-third of the stockholders. The corporation was organized under the statute with regard to joint stock corporations.

The case in which the motion was made was that of Neville v. The Litchfield Carriage Company, next preceding. The respondent filed an answer to the motion to which the petitioner demurred, and the questions arising on the demurrer were reserved for the advice of this court. The case is sufficiently stated in the opinion..

Petition for an injunction against tlie practice of dentistry by the respondent; brought to the Superior Court in Litchfield County, and heard before Granger, J. Decree for petitioner and motion for a new trial by the respondent. The case is fully stated in the opinion.

Information for burglary, in the City Court of the city of New Haven, tried to the jury on the plea of not guilty, before Pardee, J. Verdict guilty, and motion for a new trial for error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Complaint under the bastardy act; brought to the Court of Common Pleas of New Haven County by a binding over by a justice of the peace, and there tried to the court on the plea of not guilty before Pardee, J. The complaint was as follows: That on the 5th day of September, 187^^Hfcomplamant was delivered of a female child, which is a basRird, begotten upon her body by Evic A. Smith, of the town of Waterbury in said county, on or about the 16th day of December, 1877; and that…

Ejectment, brought to the Superior Court in New Haven County. The demanded premises were certain real estate known as the grist-mill property, containing a mill, with dam and water power. The Townsend Savings Bank was originally the sole plaintiff, but after the case came into court Alfred Todd and Tlieron A. Todd moved to be made additional plaintiffs, and that the declaration be so amended that they should be so described therein.

Bill for a foreclosure; brought to the Court of Common .Pleas of New Haven County, and heard before Harrison, J. Facts found and a decree of foreclosure passed. Motion in error by respondent. The case is fully stated in the opinion.

Assumpsit ; brought to the Superior Court in New Haven County, and tried to the court before Sanford, J. Pacts found and judgment for the defendants, and motion for a new trial by the plaintiff. • The points decided will be sufficiently understood without a statement of the facts.

Trespass on the case; brought to the Court of Common Pleas of New Haven County, and tried to the court on the general issue, before Stoddard, J. Facts found, and judgment rendered for the plaintiffs. Motion for a new trial by the defendants.' The case is sufficiently stated in the opinion.

Trespass on the case; brought to the Superior Court in New Haven County.

Assumpsit for supplies furnished'to Harson Northrop and family, claimed to be paupers of the defendant town; brought to the City Court of the city of Waterbury. The suit was brought in November, 1878.

Judson; taken to the Superior Court in New Haven County. The executor of the will and one of the devisees under it who had been made parties to the appeal, pleaded in abatement a former appeal taken from the same probate decree to the Superior Court and the judgment of the latter court upon the appeal, such judgment being against the appellants and establishing the will. The probate decree was passed on the 30th of December, 1875; the present appeal was taken June 29th, 1877.

Action on the case for damages from the overflow of a brook obstructed by the defendant; brought to the Superior Court in New London County, and tried to the jury on the general issue before Culver, J. The declaration contained also a count in assumpsit, upon an agreement of the defendant, from whom the plaintiff- purchased his premises, that they were dry and the cellar of the house free from water; the two counts being alleged to be for the same cause of action.

Complaint for keeping open, between tlie hours of twelve o’clock on Saturday night and twelve o’clock on the Sunday night following, of a place in which it was reputed that intoxicating liquors were exposed for sale; brought by appeal to the Superior Court in Fairfield County and tried to the jury on the plea of not guilty before Hitchcock, J. Yerdict “ guilty,” and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Assumpsit against the defendant as executrix of Enoch Moore; brought to the Court of Common Pleas of Fairfield County, and tried to the court, on the general issue, with notice, before Sail, J. Facts found and judgment rendered for the defendant, and a motion for a new trial by the plaintiff. The case is sufficiently stated in the opinion.

Action on the case for wrongfully neglecting to supply a boiler in the dwelling-house of the plaintiff with water, by reason of which the boiler collapsed and was destroyed; brought to the Superior Court in Fairfield County. The declaration contained two counts.

Bill in equity for the specific performance of a contract of the respondents to convey certain real estate belonging to the wife; brought to the Court of Common Pleas of Fairfield County, and heard before Sail, J. Facts found and bill dismissed and motion in error by the petitioner. The case is suificiently stated in the opinion.

Petition for an injunction against a levy on the property of the petitioners for sundry taxes by the tax collector of the respondent town; brought to the Superior Court in Fairfield County. The respondents demurred to the petition, and the court (Hovey, J.,') overruled the demurrer and passed a decree in favor of the petitioners. The respondents thereupon filed a motion in error and brought the record before this court. The case is sufficiently stated in the opinion.

Action on the case for slander; brought to the Superior Court in Fairfield County, and tried to the jury, on the general issue, with notice of proof of the truth of the words uttered, before Sovey, J. Yerdict for the plaintiff, and motion for a new trial by the defendant for error in the charge of the court. The case is sufficiently stated in the opinion.

Bill in equity, brought to the Superior Court in the county of New Haven.

Assumpsit; brought to the Court of Common Pleas of New Haven County. The plaintiffs were Tilton E. Doolittle, Henry Stoddard and William L. Bennett, a law firm. The defendant pleaded in abatement that the writ was no otherwise signed than by William L. Bennett, as a commissioner of the Superior Court, while he was himself one of the plaintiffs. To this plea the plaintiffs demurred. Demurrer overruled and judgment afterwards rendered for the plaintiffs.

Assumpsit for use and occupation of real estate; brought to the City Court of the city of Watorbury. The defendant pleaded the general issue, with notice that he should give in evidence as a bar a judgment rendered by a justice of the peace between the same parties in a later suit for another month’s rent. Facts found and judgment rendered (Cowell, J.,') for the plaintiff. Motion in error by the defendant to the Superior Court, which court (Culver, J.,) affirmed the judgment.

Petition for the laying out of a highway; brought to the Superior Court in New Haven County.

Two applications for a writ of mandamus to compel the defendant, a former tax-collector of the city and town of Waterbury, to deliver up to the plaintiff the rate bills in his hands for the town and city taxes remaining uncollected at the expiration of his term of office, the plaintiff being the defendant’s successor in both offices; brought, one to the Superior Court, and the other to the City Court of the city of Waterbury.

Assumpsit on an endorsed note; brought to the Superior Court in New Haven County, and tried to the jury, on the general issue with notice of fraud in the procuring of the note, before Martin, J. Yerdict for the defendant, and motion for a new trial by the plaintiff. The case is sufficiently stated in the opinion.

The ground of the appeal was the error of the probate court in its construction of the will. This court had advised with regard to the construction of this will upon the petition of a trustee under it to the Superior Court, for advice, (Hollister v. Shaw and others, 46 Conn., 248,) and the judgment of the Superior Court in accordance with that advice was now pleaded by the appellees in bar of the present appeal, to which plea the appellants demurred.

Covenant and assumpsit; brought to the Superior Court in . New Haven County. Facts found and the case reserved for ' advice. The facts are fully stated in the opinion. ”

Bill in equity to set aside a mortgage; brought to the Superior Court., and reserved, on a finding of the facts, for the advice of this court. The case is sufficiently stated in the opinion.

Assumpsit, brought to the City Court of the city of New Haven, and tried to the jury before Pardee, J. Yerdict for the p1fl.irit.iff and motion for a new trial by the defendants for error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Bill in equity to set aside an award; brought to the Superior Court. Special demurrer, and bill dismissed, (Beardsley, J.) Motion in error by the petitioner. The case is fully stated in the opinion.

Assumpsit, by the Townsend Savings Bank against Lyman E. Munson upon a note executed by him, and a bill in equity by Munson against the Townsend Savings Bank for an injunction against the prosecution of the action; both brought to the Superior Court. The following facts were found by the court.

<p>The State, in holding and administering the school fund, is acting in its sovereign capacity.</p> <p>A discharge in bankruptcy of a person indebted to the school fund as a borrower, does not affect the state as a creditor.</p>

<p>The act of 1878 provides that a judgment creditor may place a lien for hia judgment on real estate of the debtor by causing to be recorded in the town clerk’s office a certificate setting forth the judgment and describing the real estate, which lien may be foreclosed or redeemed like a mortgage. Held that the lien thus acquired is not dissolved by proceedings in insolvency on the part of the debtor, under the provision of the insolvent law that such proceedings shall dissolve all attachments and all levies of executions not perfected, made on the debtor’s property within sixty days next preceding.</p> <p>Such a lien is a statutory mortgage rather than an attachment.</p> <p>And where the lien is placed upon land that had been attached in the suit in which the judgment was rendered, it is not to be regarded as a mere continuance of the attachment.</p>

<p>It is a general rule in equity that where a mortgagee purchases the equity of redemption the estate becomes vested as a whole estate in the mortgagee and the mortgage is extinguished and with it the mortgage debt.</p> <p>The rule however is not inflexible, but depends upon the expressed or implied intention of the mortgagee, and where it is manifestly for his interest that the debt should remain outstanding and continue in his hands as a subsisting security, it will not be extinguished.</p> <p>But the benefit of the rule and the right to insist on its enforcement belong to those only who are interested in the estate and not to strangers.</p> <p>Thus, where a mortgage was assigned by M, the mortgagee, as security for his own note, and afterwards M made a mortgage of his own land to further secure the note, and still later released the equity in the last mentioned land to the party holding his note and the mortgages, it was held that the question whether the mortgage of M’s land was extinguished and with it his note, was one in which the original mortgagor had no right to intervene.</p> <p>21/ borrowed of A $2,000, which A loaned on the parol promise of H, made in the presence and at the request of M, that he would see the loan repaid if 21/ failed to pay it. M failing to pay the whole amount, H upon the demand of A paid the balance. Held that, although H’s promise could not have been enforced against him by reason of the statute of frauds, yet that he had a right to make the payment and the law would regard it as made at the request of M.</p> <p>A party who takes by endorsement negotiable paper when overdue, takes it subject to all defences and equities which existed and attached to the paper itself. in the hands of the original holder, but to no defences or equities arising out of collateral transactions.</p> <p>The rule applicable to paper not negotiable is not so restricted. A party who takes such paper by assignment takes it subject to all defences and equities which existed at the time of the assignment between the payee and the maker, whether attached to the paper or not.</p> <p>Negotiable paper assigned without the endorsement of the payee stands upon the same footing with paper not negotiable, and in the hands of the assigneeis subject to the same rules.</p> <p>A note was given in July, 1872, on demand, with interest payable annually at seven per cent. The statute then in force forbade the taking of over six per cent. The legislature, in 1872, passed an act which took effect after the note was made, validating all contracts for over six per cent. This act was repealed in 1873. Held that the note, being validated by the act, remained a valid contract for the payment of seven per cent, interest, and was not affected by the repeal of the act.</p> <p>Note.—The name of the Chief Justice is given on page 305 as one of the judges holding the foregoing term. This is an error, but it was not discovered till the sheet had been printed. Judge Beardsley of the Superior Court sat in his place in all the cases down to and including the case of Maltby’s Appeal from Probate, page 349, except the case of Healey v. City of New Haven, on page 305. The last mentioned case and all the cases after Maltby’s Appeal from Probate were heard by only four judges, except that of Simpson v. Hall, page 417, in which Judge Hovey of the Superior Court sat.</p>

<p>Writ oe error to reverse a judgment of the Superior Court in Tolland County in an action of replevin. The case is fully stated in the opinion.</p>

Assumpsit for goods sold; brought to the Superior Court in Windham County, and tried to the court on the general issue before Sovey, J. On the trial it was proved that, at the time of the transaction in question, the plaintiffs were wholesale dealers in flour and grain in Springfield, Massachusetts, and that the defendant was a retail dealer in flour and other merchandize in Put nam, Connecticut.

<p>A committee appointed to find the facts in a suit in equity completed its report, signed it, and delivered it to the respondents’ counsel to be filed in court at the opening of the term. The counsel for the petitioner, learning this fact, and knowing that the report must be adverse to his client, filed a withdrawal of the case with the clerk of the court immediately at the opening of court and before the report of the committee had been filed. Held that the case could not then be withdrawn.</p> <p>And held that it could not have been withdrawn in vacation under the statute allowing such withdrawals, the power to withdraw in vacation not differing from the power to withdraw in open court.</p>

Assumpsit for money lent to the defendant’s intestate; brought to the Superior Court in Windham County, and tried to the court on the general issue, with notice, before Hovey, J. The matters set up in the notice were the statute of limitations, and the neglect to present the claim to the defendant as administrator before the bringing of the suit.

<p>The directors of a Massachusetts manufacturing corporation, who were also its principal stockholders, decided to organize the company as a joint stock corporation under the laws of Connecticut, and locate its office in this state, but to carry on its manufacturing business in the state of Massachusetts as before. The new corporation was organized, and the property of the old corporation transferred to it. Afterwards the new corporation failed, and one of its creditors, claiming that the new company had not been legally organized and that its members were liable as partners, brought suit against M, with the other members, as such partners. M had been a stockholder in the old company, and knew that a re organization under the laws of this state was being considered by the directors, but he had nothing to do with the measures taken for the purpose and did not sign the articles of association, his share of the stock being subscribed for by one of the directors simply as “ attorney.” Soon after the re-organization he was informed by the secretary of the fact, and that if he would send in his certificate of stock in the old company he would send him a certificate for the same amount in the new, which exchange was soon after made. M did not keep himself informed with regard to the operations of the company and had no knowledge of the particular debt on which the suit was brought. The organization of the new company had been made in entire good faith and with intent to make it a legal corporation, and M supposed it to be so. The plaintiff had dealt with the company as a corporation and had not trusted the credit of M in the matter. Held that, even if the new company had not become a legal corporation, M had not made himself liable as a partner.</p>

<p>It is not necessary that a witness to a will should know that it is a will. The object of his attestation is that he may be able to testify that the testator put his name upon the identical piece of paper upon which he puts his own.</p> <p>In determining whether a testator has been induced by undue influence or fraud to execute a will, the state of his feelings towards the persons to whom he has given his property may be inquired into, and upon such inquiry his declarations and acts before and after the execution of the will may be proved. Such declarations and acts will have less weight as they are remoter from the time of such execution, but the jury are to determine as to their weight.</p> <p>Declarations and acts of the testator after the execution’ of such a will are admissible for the purpose of showing that he did not understand that he had executed it.</p> <p>Where, for the purpose of showing a settled dislike on the part of a testator towards a son to whom by such a will he had given the whole of his property, declarations of the testator had been admitted in evidence, to the effect that his son had turned him out of doors and compelled him to sleep in out-buildings, and had refused to assist him in severe weather in taking care of his cattle, he being over ninety years of age, it was held that it might be shown in support of the will that these declarations were untrue.</p> <p>Evidence that such declarations had no foundation in fact would tend to show that they were not in fact made, and that, if made, they were not proof of so great a degree of dislike as if they were true.</p> <p>A petition in chancery, signed by the testator with his own hand, brought against the son and his wife alleging that the son had procured from him by fraud a deed of certain real estate to the son’s wife, held to be admissible on the part of the contestants of the will, to show thi fact of litigation between the parties and the feelings of the testator towards his son.</p> <p>And where the whole record in the case was offered in evidence, not for the purpose of proving the facts found by the decree, but only the fact of the litigation and the feelings of the testator, and the court instructed the jury that the record was to be taken for this purpose alone and not as proof of the facts found, it was held that the other party had no cause of complaint because the decree was allowed to go with the petition to the jury, though it had been ; specifically objected to.</p>

Indictment for rape; in the Superior Court in Middlesex County. Tried to the jury on the plea of not guilty, before Sanford, J. Yerdict guilty, and motion for a new trial by the defendant for error in the rulings of the court. The case is fully stated in the opinion.

Assumpsit upon an agreement of the defendant to assume and pay a mortgage debt due the plaintiff; brought to the Superior Court in Hartford County. The plaintiff sued upon the promise in one count in his own right and in another as assignee of the rights of one William H. Camp, to whom the promise was made.

Ejectment ; brought to the City Court of the city of Hartford, and tried to the court before Bennett, J. Facts found and judgment rendered for the plaintiff, and motion in error by the defendants. The case is fully stated in the opinion.

Trespass de bonis asportatis, brought to the Court of Common Pleas of Hartford County, and tried to the court, on the general issue, with notice, before Calhoun, J. The court found the following facts.

Bill for the foreclosure of a mortgage and for possession of the mortgaged premises; brought to the Superior Court in Hartford County.

Bill in Equity, brought to the Superior Court in Hartford County. The petitioner was trustee of the. assigned estate of William M. Kellogg, an insolvent debtor, and sought relief against a conveyance of the real estate of the debtor claimed to have been fraudulently obtained of him by the respondent Atwood. Facts found and a decree rendered in favor of the petitioner, ( Carpenter, J.) Motion in error by the respondent Atwood. The case is fully stated in the opinion.

Bill in equity to recover money advanced to the wife of the respondent for the purchase of necessaries by her while deserted by her husband; brought to the Superior Court in Hartford County. The suit was brought by the petitioner as trustee, for money advanced by his wife from her separate estate.

Indictment for murder; tried to the jury in the Superior Court for Fairfield County, on the plea of not guilty, before Sanford and Beardsley, Js.

Grandjuror’s complaint for keeping a place where it was reputed that intoxicating liquors were sold; brought, by appeal from a justice, to the Superior Court in Fairfield County.

Assumpsit on a policy of insurance; brought to the Superior Court in Fairfield County, and tried to the jury on the general issue, with notice, before Quiver, J. Verdict for the plaintiff, and motions in error and for a new trial by the defendants. The case is sufficiently stated in the opinion.

Petition for 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.

_ Trespass on the case for the destruction of an ice house and its contents hy a fire caused by the negligence of the defendants; brought to the Superior Court in Fairfield County, at its December term, 1874.

Assumpsit for the proceeds of the sale of a horse, brought by appeal from a justice of the peace to the Court of Common Pleas, and tried in that court before Hall, J. The plaintiff sued as trustee in insolvency of the estate of Ernest Weiss and Louis Nies, assigning debtors, and the defendant set up in his defense that the horse had been attached by him as a constable, in a suit of Virgil E. Barnum against Weiss and Nies as copartners, and had been sold according to law; and…

Writ of Error to reverse a judgment of the Superior Court in Fairfield County, dismissing a bill in equity. The points of law decided will be sufficiently understood without a statement of the facts.

Bill in Eqtjitt to compel a transfer of certain stock and the delivery of certain bonds, with payment of damages, and for an injunction; brought to the Superior Court in Fairfield County, and heard upon the respondents’ answer and cross bill, before Hitchcock, J. Facts found and decree for the petitioner, and motion in error by both parties. The case is sufficiently stated in the opinion.

Suit by the plaintiffs, as executors of Ira Bliss, for advice as to certain questions arising under the will; brought to the Superior Court in Fairfield County.