Volume 48 — Connecticut Reports

Action on the case, under the statute (Gen. Statutes, p. 280, sec. 18,) to recover of tlie defendant, president of a joint stock corporation, a debt due from the corporation; brought to the Court of Common Pleas of New London County.

Ejectment ; brought to the Superior Court in New London County, and tried to the jury before Pardee, J. Yerdict for the plaintiff, and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Bill in equity for an injunction against the enforcement of a judgment at law; brought to the Court of Common Pleas of New London County, and heard before Mather, J. The court made the following finding of the facts:— In October, 1878, the respondents, J. L. Manning & Company, brought an action of general assumpsit against Henry A. Gallup, the petitioner, by writ dated October 9th, 1878, demanding two hundred dollars damages, returnable to the Court of Common Pleas in New…

Assumpsit for goods sold; brought to the Superior Court in Hartford County, and tried to the court on the general issue before Beardsley, J. The declaration, after alleging that the plaintiff was the owner of the claim, by assignment from William A. Andrews, in whose favor it originally accrued, proceeded as follows:— That on the first day of April, 1873, the defendant and William C. Williams were partners in business under the name and firm of Williams & Curtis, and as such…

Action by tte State to recover a tax claimed to be due from the defendant company; brought to the Superior Court in Hartford County, and tried to the court upon a general denial, before Sovey, J. The court made a special finding of the facts.

Application by the Attorney for the State for a writ of mandamus to compel the defendant, a justice of the peace, to issue a mittimus for the execution of a judgment rendered by him in a criminal case; brought to the Superior Court in Hartford County. The Attorney demurred to the return of the defendant, and the case was reserved on the demurrer for the advice of this court. The case is sufficiently stated in the opinion.

Goodwin, deceased; brought to tbe Superior Court in Hartford County. Tbe following facts were found by tbe court:— James M. Goodwin, tbe testator, died in tbe city of Hartford, on tbe 30tb day of March, 1870, leaving a considerable estate. By bis will, which was executed on the 2d day of February, 1870, be provided that, after tbe payment of certain legacies, tbe residue of his estate should be divided into fifty equal parts, twenty of which be bequeathed as follows: “ Sixth.

Action on the case for an injury ‘to the plaintiff’s property by the institution and subsequent abandonment by the defendant city of proceedings for the laying out of a street; brought to the Superior Court in Hartford County. The declaration contained four counts, under the first of which no claim was made.

Petition for a new trial upon an indictment for murder; brought to the Superior Court in Hartford County. The petitioner had been convicted upon the trial of murder in the first degree, and now sought a new trial upon the ground of newly-discovered evidence. The facts were found by the court and the case reserved for advice. The points decided by this court will be sufficiently understood without a statement of the facts, which would occupy much space.

' Assumpsit upon a certificate of membership in a mutual life insurance company; brought to the Superior Court in Hartford County, and tried to the jury before Beardsley, J. The jury having returned a verdict for the plaintiff the defendants filed a motion in arrest of judgment for the insufficiency of the declaration, which being overruled they brought the record before this court by a motion in error. The case is sufficiently stated in the opinion.

Assumpsit for work and materials in the building of a house for the defendant; brought to the City Court of the city of Hartford and tried to the court, on the general issue, before Bennett, J. The court found the following facts:— The claim was originally that of one A. D. Smith, by whom it had been legally assigned to the present plaintiff, who was the bond fide owner of it.

Assumpsit on a policy of insurance; brought to the City Court of the city of Hartford, and, by appeal, to the Superior Court in Hartford County.

Assumpsit to recover a balance claimed to be due upon certain stock transactions; brought to the Superior Court in Middlesex County.

Debt on an official bond to the treasurer of the state for the faithful discharge by George H. Baldwin, the principal obligor, of the duties of sheriff of Litchfield County, the other defendants being sureties upon the bond: brought to the Superior Court, and tried to the court before Hovey, Ji Facts found and judgment rendered for the plaintiff and motion in error by the defendants. The case is sufficiently stated in the opinion.

Replevin; brought to the District Court of Litchfield County and tried to the jury before Cowell, J. Yerdict for the plaintiff for three dollars damages. The defendants moved that, under the statute (Gen. Statutes, p. 445, sec. 8,) the plaintiff be allowed no more costs than damages. The court allowed full costs and the defendants brought the record before this court by a motion in error. The case is sufficiently stated in the opinion.

Assumpsit for goods sold; brought to the District Court of Litchfield County. The defendant pleaded the general issue with notice of the statute of limitations, and the case was tried to the court before Fyler, J. The facts were found and judgment rendered for the defendant, and the plaintiff brought the record before this court by a motion • in error. The case is sufficiently stated in the opinion.

Coe, a resident and taxpayer of the town. Held: and said subject of the collection or reduction and abatement of said tax was fully discussed and considered, and during said discussion said Coe Brass Manufacturing Company claimed that the said additions to their list herein-before stated were inequitable, excessive, unjust and unlawful ; and upon due consideration it was thereupon…

Assumpsit on a special contract, with the common counts; brought to the Superior Court in Litchfield County, and tried to the court before Hovey, J. The court found the following facts— In the month of August, 1878, and prior to the 25th day of that month, John R. Farnum made and delivered to the defendant for a valuable consideration his promissory note in writing, as follows:—“Litchfield, Aug. 1, 1873.

The appellant moved to have the case stricken from the docket for want of jurisdiction, which' motion the court denied. The court made the following finding of facts: The deceased, Clark Adye, was born in the town of Seymour, in this state, and was a settled inhabitant therein till some time in the early spring of 1876, and up to that time received support from the town at different times as a pauper. In 1855 he was made an elector of the town, and voted once or twice.

Proceedings for a contempt, in the District Court of Litchfield County, before Fyler, J. Certain liquors had been seized and condemned in the town of Winchester, by proceedings before a justice of the peace, under the 5th section of the act with regard to intoxicating liquors.

The jury returned a verdict setting aside the will, and the appellees moved for a new trial for error in the rulings and charge of the court, and on the ground that the verdict was against the evidence. The case is sufficiently stated in the opinion.

Covenant,, upon a joint and several bond given by William N. Barnett as principal and the defendant as surety for the faithful performance by the principal of his duties as testamentary trustee under the will of Henry Ward; brought to thfe Superior Court in New Haven County. The declaration set forth the breach of the bond, which the defendant denied and pleaded full performance. The facts were found by a committee and the case reserved for the advice of this court.

<p>In a civil action before a justice of the peace against a husband and wife, the justice rendered judgment against the husband and in favor of the wife. The plaintiff appealed and in the appellate court judgment was rendered for the wife. Held that she was entitled to her cost, under Gen. Statutes, tit., 19, ch. 14, sec. 12</p>

<p>An amendment of the charter of the borough of F within the town of E provided that the town should not thereafter have power to lay out or discontinue highways within the borough, nor be liable for any damage sustained by reason of any defective highway within it, but that the borough should be liable therefor to the same extent that the town would have been if the amendment had not been passed. The town of E a short time before had laid out and constructed a highway along a hill-side above the plaintiff’s house, Removing the earth and filling the excavation with stones, in consequence of which the water at times worked through from the gutter on the other side and ran down upon the plaintiffs premises, doing serious damage. This damage occurred after the passage of the amendment, and the plaintiff brought suit against the borough for it. It was found that the borough had at the time no knowledge of the nuisance. Held: —</p> <p>1. That it was not a case of a defective highway, the fitness of the road for public travel having been promoted by the mode of its construction.</p> <p>2. That it was a nuisance, for the creation of which the town of E was originally liable, and for which if the borough became liable, it would not be by reason of the provision of its amended charter, but by reason of its intentionally continuing the nuisance.</p> <p>3. That the borough could not be liable here, it being found that it had no knowledge of the nuisance.</p>

<p>Where one purchases real estate encumbered by a mortgage, and agrees to pay the mortgage debt as a part of the consideration, the promise may be enforced by the mortgagee. In such a case the purchaser merely agrees to pay his own debt to a third person, who by an equitable subrogation stands in the place of the promisee. The action may also be sustained on the principle which governs assumpsit for money had and received.</p> <p>The mortgagee may also sustain an action whenever the circumstances are such as to justify the conclusion that the promise was made for his benefit.</p> <p>Where, however, the conveyance in which the promise is inserted is itself a mortgage, the case is different. Hero the grantee owes no debt which he can promise to pay to the prior mortgagee, and such a promise is ordinarily a mere agreement to purchase the prior mortgage. It is simply a transaction between the immediate parties.</p> <p>In such a case, after the last mortgage has been satisfied and discharged, it is clear that the promise has been cancelled and cannot be enforced by any one. This would be presumed to be the intention of the parties, where nothing to the contrary appears.</p> <p>It stems, however, that where the promise was made in part for the benefit of third parties, who have given a valuable consideration for it, their rights can not be affected by the discharge of the mortgage.</p> <p>But while the last mortgage remains unsatisfied and in force, the mortgagee remains liable to the mortgagor on his promise, and the prior mortgagee may acquire and enforce his rights.</p> <p>The defendant having a claim against M, it was agreed that the latter should give him a mortgage of a piece of land with a factory on it, which was part of a tract already encumbered by three mortgages, that M should procure from the third mortgagee a release of the factory lot, and that the defendant should assume the two prior mortgages, leaving the third mortgage the first on the remaining part. The third mortgagee released to M, who then made the mortgage agreed to the defendant, the deed containing a clause, by which the defendant assumed and agreed to pay the two prior mortgages, The factory was afterwards burned without insurance, and the value of the* whole tract became so reduced as to be sufiBcient only to pay the first mortgage. M thereupon assigned to an assignee of the second mortgagee his rights under the defendant’s promise, who brought "•"''upon it against the defendant to recover the amount of the second mortgage. Immediately after this the defendant tendered to M a reconveyance of the property, but M refused to receive it and the defendant put it upon record. At this time the mortgage to the defendant was not satisfied, but the debt had been reduced from S>2,00Q to $ 400. Held,—</p> <p>1. That the defendant could not, at his own will, discharge the mortgage to himself and so relieve himself of his liability upon his promise.</p> <p>2. That to allow him to do it would be a fraud npon the third mortgagee.</p> <p>3 That the case was not affected by the fact that the mortgage was by an absolute deed, with a separate defeasance, by which the grantee agreed to reconvey, upon the written request of the mortgagor, on the mortgage debt being paid at any time within three years.</p> <p>4. That the plaintiff was entitled to recover.</p> <p>The plaintiff, being about to purchase the second mortgage debt, enquired of the defendant with regard to his liability to pay it, and the latter, with full knowledge that the enquiry was made with reference to a purchase of the debt, replied that " he had assumed and agreed to pay the debt, as his deed would show.” Held that he was equitably estopped from denying his liability upon the promise.</p>

<p>Tbe statute (Gen. Statutes, tit. 12, cb. 2, secs. 15, 16,) provides that real estate shall stand charged with the owner’s taxes in preference to any other lien, and may be sold for the same within one year notwithstanding any transfer or levy of attachment or execution; and that the selectmen may continue any such tax lien for not more than ten years after the tax becomes payable, by recording in the land records of the town their certificate describing the real estate, and stating the amount of the tax and the time it became due. Held—</p> <p>1. That this statute anthorizes the imposition upon onj: piece of land of a lien for the taxes of the owner upon all his property real and personal.</p> <p>2. That this lien takes precedence of all pre-existing mortgages and liens.</p> <p>3. That it does not affect the case that the owner had other property which might have been taken on a tax-warrant.</p> <p>Where a tax payer puts several pieces of land into his assessment list as one, with a valuation of them as a whole, and the assessors accept the list and make their valuation of them as a whole, it is not for the tax-payer or any grantee of his to complain, after all opportunity for a separate assessment of the pieces has passed.</p>

The facts were found by a committee, a remonstrance of the appellee against the acceptance of the committee’s report overruled by the court, ( Culver V,) and judgment rendered for the appellant. The appellant moved for a new trial for error in a ruling of the court as to the admission of evidence. The case is fully stated in the opinion.

<p>By a contract between A and B, all the colts thereafter foaled by certain mares sold by B to A and kept in B’s stables under A’s care, were to belong to A. Held—</p> <p>1. That a valid sale could be made of the colts before they were foaled.</p> <p>2. That the question of retention of possession by B could not apply to them, as they were not in existence when the mares were sold to A and the contract made.</p> <p>3. That it was not important, upon a question between A and the creditois of B as to the title to the colts, whether there had been a legal and visible change of possession as to the mares.</p> <p>B having gone into insolvency the colts were attached as his by one of his creditors, who afterwards delivered them to the trustee in insolvency. A, who lived near by and had knowledge of the fact, waited five months before bringing replevin for them, during which time the trustee was at the expense of keeping- them. Held not to constitute an equitable estoppel against A’s claim.</p> <p>A, to rebut evidence that B had claimed to own the mares and colts, offered in evidence a stock book kept by him in which he had made entries against the names of the horses that they were the property of A. Held to be admissible.</p>

<p>'The defendant, who was in the employment of M upon his farm, bargained with him for the purchase of a horse which M had for some time owned and ■kept on the farm, when he should have earned the money to pay for it. The '■horse remained on the farm as before, and two years after M sold it to the ■ defendant, taking his receipt in full for wages earned in payment. The ’horse still remained on the farm and was kept in M’s stable, the defendant continuing in his service, and feeding it from M’s, hay and grain as before tpaying a certa nm per week for its keeping. The defendant took exclu.sive care of the horse, breaking it to harness, and keeping it shod, and 'daiming to own and hs in possession of it. About two. months after the sale the horse was attached by one of M’s creditors. Held, that there had been no such change of possession as made the sale good against the creditors of M.</p> <p>Where a trustee in insolvency sues, it is not sufficient to describe himself in the writ merely as trus ,but he should state the character of the assignment ¿and the name of the assignor.</p>

<p>The defendant received of the plaintiff an organ, and signed and delivered to him the following agreement prepared by the plaintiff:—“The subscriber has this 21st day of Dec., 1877, rented of H, ("the plaintiff) one choral organ, during the payment of rent as herein agreed, for the full rent of $190, payable as follows—one melodeon valued at $50 as first payment, and one note for . $140 due Jan. 15, 1879; with the understanding that if I shall have punctually paid all said rent I shall be entitled to a bill of sale of the organ, and if I fail to pay any of said rent when due all my rights herein shall terminate and said II may take possession of said organ.” Held not to be a lease of the organ, but a conditional sale, and that the plaintiff could not recover upon the $140 note after the organ had been returned.</p> <p>The consideration of the note was not the mere right to pay for and receive title to the organ, but the actual purchase and the acquisition of title as an accomplished fact. When therefore the purchase failed there was a complete failure of consideration.</p>

<p>There would seem to he no good reason why highway proceedings should be an exception to the general rule that allows a party to accept service of a process that is to be served upon him by copy or reading.</p> <p>By statute a petition to the Superior Court for the laying out of a highway must be served upon one or more of the selectmen of the town twelve days before the session of the court. In the present case two of five selectmen of a town accepted service of such a petition in writing eleven days before the session of the court. It seems that such acceptance of service was good.</p> <p>An agent of the respondent town, appointed to attend to all suits brought against the town, agreed in writing with the petitioner during the first term of the court, that the court might appoint a committee in the case, and one was so appointed. Held to be an appearance of the town.</p> <p>Towns are as much parties, and as much bound by their admissions and waivers, in highway cases as in other suits.</p> <p>And where, after the case was pending in court, sundry land-owners were brought in as respondents by notice of a hearing before the committee, it was held that they could not make objection to the service upon the town. Where the town had come into court by voluntary appearance it was in court for all purposes.</p> <p>The order of notice to the land-owners was not made until the next term after the appointment of the committee. Held not to affect the validity of the proceeding.</p> <p>The statute (Gen. Statutes, tit. 16, ch. 7, sec. 47,) provides that upon a highway' petition before the Superior Court, any person interested in procuring the highway may execute a penal bond with surety payable to the respondent town, conditioned that the obligors will, for a specified sum, make the highway in a specified time and manner, and that the committee may receive the bond, and regard it as evidence in determining the expense of constructing the highway. The petitioner, with a surety, executed a bond in the penal sum of $1,000, payable to the respondent town, binding himself, if the committee should lay out the highway in question on a line not varying materially from that prayed for, to construct it wholly at his own cost. Held that the bond conformed sufficiently to the statute and was properly received by the committee.</p> <p>Where the committee found that the selectmen had refused to lay out the highway, against the objection that it was not a matter for them to find, and the court afterwards made a separate finding of that fact, it was held that the finding of the committee became o'f no importance.</p> <p>The committee in its report made a contingent and alternative assessment of damages and benefits, and on this account the report was re-committed by the court. No additional order of notice was made and no further evidence heard, 'but the committee upon the evidence already received made a supplemental report, assessing the damages and benefits absolutely. Held to be no error.</p> <p>And held that it was not necessary that the old report should be formally set aside, but that the two could stand together, the new one operating as a modification of the old one, and to the extent of the changes a substitute for it</p> <p>Eouv years after the suit was brought and while it was still pending, and after the committee had made its report, the legislature, by an amendment of the charter of a borough within the limits of the respondent town, imposed upon the borough the duty of making and maintaining all highways within its ‘ limits. The proposed highway was within its limits. Held not to affect the case.</p> <p>At the time of the hearing before the committee a new street had been opened, near the line of the highway prayed for, by a party for purposes of speculation, but had not then been accepted by the public. The existence of this street was claimed to affect the question of the convenience and necessity of the highway prayed for. Held that, in finally accepting the report of the committee four years later, the court did not err in not considering the then, condition of the street in question, the whole question of the convenience and' necessity of the highway prayed for being by statute for the committee and not for the court.</p> <p>By the order of the court N was to be notified as a land-owner of tlie time and. place of the hearing before the committee. An officer called at his house to leave a certified copy of the order, but found that no one was in it and that he and his family had gone to another state. His partner in business proposed to take the copy and send it to him by mail; which was done, and N received it the next day. He returned in ample time to be heard before the committee, but did not appear. Held that the whole object of giving notice had been accomplished, and that his objection to the informality of it was not. entitled to consideration.</p>

<p>Bul in equity to open a decree passed by the Superior Court giving a construction to a will, and praying for a new hearing of the matter; brought to the Superior Court in New London county.</p> <p>The will in question was that of John A. Fulton, formerly of the city of New London, who died in 1844. The will contained three devises and legacies to trustees for the benefit of his grandson, Thomas Bradley, which were all in the same terms, except as to the property given by them. The first one was as follows :</p> <p>“ I give, devise and bequeath the land and house belonging to me, situated at the corner of Richards and Huntington streets in said New London, to Ebenezer Learned of said New London, and my nephew Jonathan Perkins, of Medford in the state of Massachusetts, to be by them held in trust for the uses and purposes following: that is to say, the rents, profits, and income of said land and house, after deducting all necessajy repairs, charges, and taxes, to be by them in such ways as their discretion may dictate expended for the comfortable support of my grandson, Thomas Bradley, of said New London, during his natural life, together with the income and profit of the other estate hereinafter bequeathed arid devised to them, the said trustees, for that purpose. And on the decease of the said Thomas Bradley, then the :said trustees are to deliver and transfer said land and house to my heirs-at-law, to be to them and their heirs and assigns :forever.”</p> <p>The two other bequests were of personal property.</p> <p>Robert Coit, of New London, had succeeded to the trust, and brought a petition to the Superior Court for advice as to the construction of the will. It was found.that Thomas Bradley was, at the date of the will and at the death of the testator, his only living issue and heir, being the son of a daughter of the testator who had died several years before; that Bradley died intestate and without issue in 1876, and that he had been through life incapable, from mental deficiency, of managing his own affairs. The Superior Court advised the trustee that the heirs-at-law of the testator, who were to take the property on the death of Bradley, were those who were his heirs-at-law at the death of Bradley, and Aot at the death of the testator, and that Bradley consequently was not to be included as. an heir-at-law. The present petition was brought by sundry persons who were heirs-at-law of the testator, being representatives of his brothers and sisters, but issue of his nephews and nieces who were deceased at the time of Bradley’s death. They had not been made parties to the former petition, and now prayed that the decree in that case be opened and a new hearing had.</p> <p>The case was reserved upon these facts for. the advice of this court.</p>

Writ op error from a judgment of the City Court of the city of Norwich, brought to the Superior Court in New London County. The defendant in error moved that the cause be erased from the docket on the ground that the Superior Court had no jurisdiction of the writ of error; which motion the court (Martin, A,) granted, and ordered the case stricken from the docket. The plaintiff in error brought the record before this court by a motion in error.

<p>Where a suit is withdrawn in term time and the defendant afterwards enters for costs, which are taxed in his favor and judgment entered up for their amount against the plaintiff, the judgment is to be regarded as rendered at the time of the withdrawal and not at that of the taxing of the costs.</p> <p>Where a suit is withdrawn more than three days before the end of a term the plaintiff is not bound to give notice of the withdrawal to the defendant. The defendant having entered an appearance is regarded as in court and taking notice of any action affecting the case. If he fails to enter for costs before the close of the term he has lost his right to them.</p>

Replevin for a quantity of tools; brought to the Superior Court in the county of New Loudon. The following facts were found by the court : The defendant is the trustee of the insolvent estate of Joseph Corbett, assigned to him on the 26th of December, 1876, by Corbett, for the benefit of his creditors, under the provisions of the insolvent laws of the state.

<p>Where goods are sold to a person who is in fact an agent of another and on his credit, hut without knowledge of the agency on the part of the seller, the latter has the right to elect to make the principal his debtor on discovering him.</p> <p>And the same principle applies where the seller is informed at the time of the sale that the buyer is an agent, but is not informed who the principal is.</p> <p>And the seller is not bound to make the inquiry.</p> <p>And where the seller takes the promissory note of the buyer for the goods, with knowledge that he is an agent, hut without knowledge who is the principal, he is not debarred thereby from electing to make the principal his debtor.</p> <p>And the taking of such a note is not presumptively a payment of the debt.</p>

Debt on a replevin bond; brought to the Court of Common Pleas of Fairfield County, and tried before Sail, J. Facts found and judgment rendered for the plaintiff, and motion for a new trial by the defendants. The case is fully stated in the opinion.

Action upon the statute of 1878, relating to dogs; brought originally before a justice of the peace, and, by appeal of the defendants, to the Court of Common Pleas of Fairfield County, and tried to the court before Sail, J. The seventh section of the statute is as follows:— “Damage done by dogs to sheep or lambs, or cattle, proved to the satisfaction of the selectmen to have been committed in their town, shall be paid by such town, and it may recover such damages when paid…

<p>A statute of the state of New York provides that “after a hill of foreclosure shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings shall be had at law for the recovery of the debt secured by the anortgage or any part thereof, unless authorized by the Court of Chancery.” Held to pertain to the remedy only and not to enter into the contract, and therefore to have no application to proceedings in this state.</p> <p>’Under the laws of New York the mortgaged property is sold after foreclosure and the proceeds of the sale applied on the mortgage debt. Held that the defendant, in an action in this state to recover the balance of the mortgage debt, after a foreclosure and sale of the mortgaged property in New York, could not show that the real value of the property was greater than the amount for which it was sold.</p> <p>'The statute of this state with regard to the application upon the mortgage debt of the value of the property taken by the mortgagee upon a foreclosure, does not apply to the case of property foreclosed and sold under the laws of ■another state. The proceeds of the sale are all that the mortgagee receives under the latter proceedings, and all that he is to be charged with in determin- , iing the amount to be recovered here as the balance of the mortgage debt.</p>

<p>A disseisee who bas recovered possession of the premises by any lawful means may maintain trespass for mesne profits against a party who has occupied the premises as a tenant of the disseisor, although he was ignorant of the disseisee’s claim of title and has in good faith paid rent to the disseisor.</p> <p>The disseisor can not give to any person occupying under or taking title from him, any better rights than he had himself.</p> <p>Trespass will lie for mesne profits upon the fiction of law that the disseisee after re-entry has been in continuous possession during the period of the disseisin.</p>

Trespass on the case against the defendants, a corporation, as common carriers, for the loss of a quantity of corn by their negligence; brought to the Superior Court in Fair-field County. The defendants filed a demurrer to the declaration, -which was overruled, and the case thereupon heard in damages before Sanford, J. On the hearing the court' found the following facts, and made the finding a part of the record.

<p>The statute (Gen. Statutes, tit. 19, eh. 5, see. 15,) provides that in civil actions brought before a justice of the peace an appeal shall be allowed to either party “from any judgment rendered therein upon any issue.” Held not to give a right of appeal from a judgment of respondeos ouster upon a demurrer overruled. (Two judges dissenting.)</p> <p>Where such an appeal was taken by the defendant to the Court of Common Pleas, and the plaintiff in that court amended his complaint by raising the demand for damages from $100, which was below the jurisdiction of the court, to $110 which was within its jurisdiction, it was held that the appellate court did not thereby acquire jurisdiction.</p> <p>H the court had no jurisdiction before the amendment it had none to allow the amendment.</p> <p>And held that the court could not acquire jurisdiction by the defendant’s filing an answer to the complaint, instead of pleading to the jurisdiction.</p> <p>.Where a judgment of respondeos ouster is rendered upon a demurrer overruled, and the defendant refuses or neglects to answer over, the court should render final judgment for the plaintiff; and it is this judgment, and not that of respondeos ouster, from which the appeal is to be taken.</p>

Debt on a bond of recognizance for costs; brought to the Court of Common Pleas of Fairfield County, and tried to the jury on the general issue before Sail, J. Verdict for the plaintiff, and motion for a new trial by the defendant for errors in the rulings and charge of the court. The case is fully ^stated in the opinion.

Civil Action, for an injunction, under Gen. Statutes, p. 477, sec. 4, against the malicious erection of a structure intended to injure the plaintiff in the use of his property; brought to the Superior Court in New Haven County, and tried before Sovey, J. The following facts were found by the court, and the finding made part of the record.

Bill for a foreclosure, brought to the Court of Common Pleas of New Haven County. Cross-bill filed, and case heard before Qowell, J. Decree for petitioner and motion in error by respondents. The case is sufficiently stated in the opinion.

Writ op Error to reverse a judgment of a justice of the peace in a summary process to recover possession of leased premises; brought to the Court of Common Pleas of New Haven County and reserved for advice. The case is sufficiently stated in the opinion.

<p>C was appointed in the state of New Jersey receiver of an insolvent corporation located there, which had on hand at the time a contract with two towns of this state to construct a bridge that connected them. He obtained authority from the insolvent court iu New Jersey to go on and perform the contract for the benefit of the creditors, and agreed with the committees of the towns to do so. In building the bridge he purchased the materials and paid for the work with the funds of the corporation which he held as receiver. After the bridge was completed, a Connecticut creditor of the corporation factorized one of the towns as the debtor of the corporation for a balance due for the construction of the bridge. The town was found indebted, and paid over the money to the officer on demand made upon the execution. The receiver, who was not a party to the suit, hut had notice of it served upon him, gave no notice to the town not to pay, and if such notice had been given it would not have paid. In a suit brought by If as receiver against the town to recover the balance due on the contract which had thus been taken by the factorizing creditor of the corporation, it was held—</p> <p>1. That O could sue in this state as receiver.</p> <p>2. That the materials having been procured and the work done by him as receiver, the contract price was payable to him.</p> <p>3. That it made no difference that the bridge was built under the original contract with the insolvent corporation, and that no new contract was made, there having been an agreement with the committees of the towns with him that he should go on as receiver and perform the contract.</p> <p>4. That the town was not discharged by the payment of the money as garnishee to the factorizing creditor, under the statute that makes such payment a discharge of the claim of the party to whom it had been due, since the corporation which was the dofendant in the factorizing suit aud as whose debtor the town was factorized, was not the party to whom the money was due.</p> <p>5. That the receiver was not estopped from claiming the money from the town by reason of his neglect to notify the town not to pay over the money to the factorizing creditor.</p>

Civil action on the guaranty of a note; brought to the Court of Common Pleas in New Haven County, and tried to the court before Pardee, J. Judgment for the defendant, and motion in error by the plaintiff. The principles of law decided by the court will be sufficiently understood from the opinion without a more particular statement of the case.

The followings facts were found by a committee:— In the spring of 1868 Kellogg and Rust owned an extensive tract of land in the outskirts of the city of Meriden, and about that time laid it out into building lots, with streets plotted across the tract, and made a map of the same and filed it in the town clerk’s office in the town of Meriden.

Civil Action against the defendant as endorser of a promissory note; brought to the Court of Common Pleas of New Haven County, and tried to the court, on a denial of the principal allegations, before Stoddard, J. The following facts were found by the court:— _ The note in suit was dated at East Haven, January 1st, 1880, was signed by George A. Hubbard, was for $300, payable at the Second National Bank of the city of New Haven six months from its date, and was endorsed by the…

Trespass for entering upon grounds in the possession of the plaintiff as an oyster bed and taking and carrying away oysters; brought originally before a justice of the peace and, by the defendant’s appeal, to the Court of Common Pleas of New Haven County, and in that court tried to the jury before Oowell, J. Yerdict for the plaintiff and motion for a new trial by the defendants.

Action upon the statute with regard to highways, for an injury from a defective highway of the defendant town; brought to the Superior Court in Hartford County, and tried to the jury, upon the general issue, before Hitchcock, J. Upon the trial the plaintiff introduced testimony to prove, and claimed that he had proved, that on the 18th day ”of March, 1879, about one o’clock in the afternoon, he had occasion to pass over the highway in question in the town of Plymouth, which…

Debt on a replevin bond; brought to the Superior Court in Windham County, and tried to the jury before Sanford, J. Verdict for the plaintiff and motion for a new trial by the defendant for error in the rulings of the court. The case is sufficiently stated in the opinion.

Bill in equity for an injunction against the unreasonable detention and discharge of water.from a reservoir; brought to the Superior Court in the county of Windham. The following facts were found by a committee: The petitioner Adams, and the petitioner Warner as administrator on the estate of Thomas Warner, deceased, are respectively owners and in possession of ancient mill-sites on a stream of waiter in Woodstock.

Trespass for taking and carrying away a horse belonging to the plaintiff, with a count in trover; brought originally before a justice of the peace and appealed by the defendant to the Superior Court in Tolland County, and tried to the court before Hitchcock, J. Facts found and judgment rendered for the plaintiff, and motion for a new trial by the defendant. The case is fully stated in the opinion.

Suit for advice as to the construction of a will and for the determination of the conflicting claims of the defendants in the matter; brought to the Superior Court in Windham County. The plaintiff was administrator with the will annexed. The court found the following facts. Luther D. Alexander, the testator, of Killingly in Wind-ham County, died March 1st, 1879, leaving the will in question, which was executed in March, 1873, and which was duly proved after his death.

<p>Matters of a public or general interest may be proved by the declarations of deceased persons who were in a situation, to have knowledge of them.</p> <p>But dates or particular facts that are not in themselves matters of general knowledge, though, connected with those which are, can not be thus proved.</p> <p>In a controversy as to the title to land upon which a school-house had stood for many years, it was held that the date of the erection of the school-house could not be thus proved.</p>

Bill for a foreclosure, brought to the Superior Court in Tolland County. . The petitioners brought the suit as executors of Samuel Thompson. The following facts were found by a committee:— In 1862 Lebbeus Bissell, of Rockville, in this state, agreed to indorse paper for Albert Dart, also of Rockville, to an amount not exceeding $5,000 at any one time for the term of five years.

<p>In an action of trespass the jury returned the following verdict:—In this case the jury find the issues in favor of the plaintiff, and that he recover of the defendants T and G one hundred and seventy-five dollars—to he divided as follows: against T seventy-five dollars, against G one hundred dollars. Held not to be a legal verdict.</p> <p>And held that the apportionment of the damages between the defendants was not to be taken as surplusage and the verdict held good for the whole sum against both. (Two judges dissenting.)</p>

Civil action to recover of the defendants the amount of a judgment against the plaintiff city for damages for an injury caused hy ice upon a sidewalk in front of their premises; brought to the Court of Common Pleas of Hartford County. The defendants were proprietors of premises fronting on Asylum Street in the city of Hartford.

Information for a conspiracy to defraud; filed by tbe prosecuting attorney of tbe city of Hartford in thp police court of the city.

Bill in equity by an administrator, to compel the transfer of stock to himself as such administrator; brought to the Superior Court for Hartford County, and tried before Beardsley, J. The following facts were found by the court:— Ralph Pitkin of East Hartford died in August, 1874, leaving a will and making his son, L. T. Pitkin, his sole executor.

Bill in Equity to remove a cloud from a title ; brought to the Superior Court in Hartford County, and heard before Beardsley, J. Bill dismissed and motion in error by the petitioners. The case is sufficiently stated in the opinion.

<p>The statute of Connecticut (Gen. Statutes, tit. 18, ch. 7, sec. 17,) provides that where a defendant in an action of ejectment has, before the suit was brought, in good faith and believing that he had an absolute title, made improvements on the land, the court shall ascertain the present value of the land and the amount reasonably due the plaintiff for its use and occupation, and if the value of the improvements exceeds the amount due for use and occupation, final judgment shall not be rendered until the plaintiff shall have paid the balance to the defendant; but if the plaintiff shall elect to have the title confirmed in the defendant, the court shall ascertain what sum the defendant ought in equity to pay to the plaintiff, and on its payment may confirm the title in the defendant. Held to be a valid statute, and one which the United States Circuit Court would administer on a bill filed on the equity side of the court by a defendant in an action of ejectment.</p> <p>The statute does not impair the obligation of contracts, nor deprive a person of his property without due course of law, nor deprive him of his right of trial hy jury.</p>

<p>The seventh section of the statute with regard to intestate estates provides that “ if any minor child shall die before marriage and before any legal disposition of the estate, the portion of such deceased child shall be equally divided among the surviving children and their legal representatives.” Held that the portion of such deceased child was to be distributed, not as the estate of such child, but as a part of the estate of the deceased parent; and that therefore the eighth section of the statute, which provides that where an intestate leaves no children, the estate shall be distributed equally to the brothers and sisters of the whole blood and those who legally represent them, has no application to the case.</p>