Volume 49 — Connecticut Reports

Bill in equity by the beneficiaries under a testamentary trust, to compel the redelivery to the trustee of certain stock claimed to have been improperly pledged to the respondent bank, and for an accounting for stock sold; brought to the Superior Court in Hartford County. The following facts were found by a committee: Roswell Blodgett, of the city of Hartford, died January 19th, 1875, testate, and leaving an estate amounting to $281,026, as inventoried in the probate court.

Civil action for the sale of certain land and buildings upon which a builders’ lien had been foreclosed; brought to the City Court of the city of Hartford. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Petition by an executor for advice as to the construction and validity of certain bequests in the will of Luke Daly, deceased; brought to the Superior Court in Hartford County, and reserved for the advice of this court. The case is sufficiently stated in the opinion.

General assumpsit, brought to the Court of Common Pleas. Facts found by a committee; remonstrance by the plaintiff against the acceptance of the report; report accepted and judgment for the defendant, (Calhoun, J.;') and motion in error by the ¡plaintiff. The case is sufficiently stated in the opinion.

Facts found, judgment for the appellants, and motion in error by the appellees. The case is sufficiently stated in the opinion.

Civil action to recover for money paid for the defendant; brought to the Superior Court in Hartford County, and tried to the court before Rovey, J. Judgment for the plaintiff, and motion in error by the defendant. The case is fully stated in the opinion.

Amicable submission to the Superior Court in Hartford County, upon an agreed statement of facts, of a question regarding the construction of the will of John Grou, the parties being the Security Company as guardian of Helen A. Grou, the trustees of the estate, and Thomas J. Vail and wife. The case was reserved for the advice of this court. The facts are fully stated in the opinion.

<p>Amicable submission upon an agreed statement of •facts, to the Court of Common Pleas of Hartford County; reserved for the advice of this court. The case is fully stated in the opinion.</p>

Bill in equity to compel a reconvej-ance of real estate and to remove a cloud from a title; brought to the Superior Court in Hartford County. Facts found by a committee and bill dismissed by Beardsley, J. Motion in error by the petitioner. The case is sufficiently stated in the opinion.

Replevin for a sleigh. Motion in error by the plaintiff from a judgment of the Court of- Common Pleas in Hartford County, Calhoun, J. The case is fully stated in the opinion.

Trespass for an assault: brought to the Superior Court in Hartford County, and tried to the jury before Hitchcoch, J. Verdict for the plaintiffs and motion for a new trial by the defendants for error in the charge of the court. The case is sufficiently stated in the opinion. •

Judgment reversing the order appealed from, and motions for a new trial and in error by the appellees. The case is sufficiently stated in the opinion.

<p>Trespass qu. cl. fr.; brought by appeal from a justice of the peace to the Court of Common Pleas for Hartford County.</p> <p>The defendant pleaded a right of way of necessity over the locus in quo and that he was in the exercise.of that right in doing the acts complained of. The grantor of the defendant had purchased the laud to which the defendant claimed the right of way of the administrators on the estate of Peter Myers, the locus in quo lying between the land of the defendant and the public highway. The defendant’s allegations with regard to the way of necessity claimed by him were as follows:—“ And said defendant further says that, at the time of said alienation and conveyance of the said close now of the defendant, the said Kelly, who by said conveyance became seised thereof, not having any other way to said close, now of the defendant, than from and out of a certain public highway in the county aforesaid into, through, over and along the said close in which, &e., by reason thereof the said Kelly after such conveyance necessarily, whilst he continued seised of said close now of the defendant, ought to have had and of right had, and the defendant so having the estate of the said Kelly as aforesaid before and at the several times when, &e., necessarily had and of right ought to have had, and still of right ought to have, a ■ convenient way to the said close now of the defendant, from said highway into, through, over and along the said close in which, &c.” The plaintiff demurred specially to: this plea on the ground that it did not properly describe the way of necessity which was claimed. The court overruled the demurrer, and the plaintiffs filed a replication denying that the defendant had the way of necessity claimed, upon which issue was joined. The court made the following finding of facts:</p> <p>Peter Myers, who died intestate in 1863, was at the time of his death the owner of a tract of land extending from a highway on the east to another highway on the west. The land now owned by the defendant lies on the east side and top of a high mountain ridge which runs nearly north and south about midway between the two highways. The loans in quo lies between this land and the east highway. The land between the defendant’s land and the west highway was conveyed on the 19th of October, 1863, by the administrators of Myers to D. H. Carpenter, the deed containing the following reservation:—“ reserving the right of way to said administrators and assigns across said premises for the purpose of carting wood, &c., from the lot still owned by said estate known as the Holcomb lot, said right of way to be used at proper times and in a reasonable manner.”</p> <p>The administrators of Myers conveyed to Peter D. Kelly the land now owned by the defendant on the 9th of September, 1865, the deed containing the following clause —“ also granting to said grantee a right of way across said Carpenter’s land which we the said grantors now possess to cross his, the said Carpenter’s land.”</p> <p>At the time of the purchase of this land by Kelly it was wholly wood land and pasture, but about two years after the purchase Kelly built a dwelling house upon it which has been occupied by the defendant since his purchase of the land. On the 5th of November, 1877, Kelly conveyed his land by a warranty deed to the defendant, the deed conveying among other rights the following:—“and also the right which I now enjoy to cross the land of Daniel H. Carpenter.”</p> <p>The land conveyed to Kelly was never contiguous to any highway. It was made up of two lots known as the Holcomb lot and the Pettibone lot. The path across the locus in quo over which the defendant claims a right of way is one which had been used by Myers when he owned the land now owned by the defendant for the purpose of going back and forth between that land and the east highway. The defendant’s land falls off toward the east, much of it at the rate of one foot in three. It is not practicable on account of the steepness and rocky character of the land to maintain a path for horses or teams from the defendant’s house easterly to the highway. The house is situated near the north east corner of the defendant’s land. Neither Kelly nor the defendant ever crossed the locus in quo to the east highway. There is and for many years has been a crossing from the defendant’s land over the Carpenter lot to the west highway. This was an old crossing in 1863 and was then and ever since has been a well defined path and an easy one for horses and teams. Kelly drew the timbers for his house over this path. Before 1863 it had been used by Myers for carting and travel from the defendant’s land to the west highway, and it was used by Kelly from time to time after his purchase for carting and travel until he was enjoined by Carpenter from using it.</p> <p>Upon these facts the defendant claimed as matter of law that he had a way of necessity over the locus in quo to the east highway. The plaintiffs claimed that by the reservation of a way over the Carpenter land and a conveyance of that right of way to Kelly and by him to the defendant, the defendant had a right of way over the Carpenter land to the west highway for all reasonable purposes and therefore could not have a way of necessity over the locus in quo. The court ( Calhoun, J.,') overruled the claim of the plaintiffs, and held that the right of way reserved in the deed to Carpenter did not afford a way for all reasonable and necessary purposes to and from the defendant’s land and that therefore the defendant had a way of necessity over the locus in quo, and rendered judgment for the defendant.</p> <p>The plaintiffs brought the record before this court by a motion in error.</p>

<p>The statute (Gen. Statutes, tit. 18, ch. 11, sec. 15,) provides that when any person shall be aggrieved by the allowance or disallowance of any claim by commissioners on an insolvent estate, he may, within twenty-one days after the report of the commissioners is accepted by the probate court, appeal to the next Superior Court. Held—</p> <p>1. That as the court has the power for cause to reject the entire report, the acceptance of the report intended by the statute is a formal acceptance, and not its mere reception on its being returned by the commissioners.</p> <p>2. That such an acceptance is complete aud operative although no record or entry of .it is made at the time.</p> <p>A report of commissioners was returned to the court of probate on the 9th of August, and was in fact accepted by the court on that day, but no entry was made at the time except a memorandum on the back of the report that it was received on that day. It was then laid with papers that were ready for the clerk of the court to record. On the 4th of September it was discovered that no minute of acceptance had been made, and the judge then added to the former memorandum “and accepted.” Held that the report was to be taken as accepted on the 9th of August and not on the 4th of September.</p>

Debt on a probate bond; brought to the Superior Court in Hartford County. Facts found and ease reserved for advice. The case is sufficiently stated in the opinion.

<p>Since 1810, when the law requiring an imprisoned debtor to support himself was repealed, it has been the duty of the creditor to provide for his maintenance, and the expense thus incurred can be recovered by the creditor as costs on the execution.</p>

<p>Birr for a foreclosure; brought to the Superior Court in Fairfield County. The defendant pleaded a set-off, which the court disallowed on the ground that it was barred by the statute of limitations. The defendant filed a motion in error. The point decided by the court will be sufficiently understood without a statement of the facts.</p>

<p>Civil action on a bond; brongbt to tbe Superior Court in Fairfield County, and tried to tbe court before Sanford, J.</p> <p>Upon tbe trial it appeared that Edwin L. Brady, tbe obligee of tbe bond, a short time before tbe 29th of May, 1871, bad purchased a tract of land in tbe state of Penn- ^ sylvania, and bad bad it conveyed directly by tbe vendors to Amelia C. Walter, one of the defendants, who was bis sister and tbe wife of tbe defendant Edward S. Walter. Tbe defendants were then residing in Brooklyn in tbe state of New York and Brady in Jersey City in tbe state of New Jersey. Tbe defendants bad no knowledge of tbe conveyance until tbe bond and mortgage to be described were given.</p> <p>On tbe 29th of May, 1871, tbe defendants were separately requested by Brady to go to Jersey City and execute certain papers, without bis informing them what they were. They went there separately tbe same day and executed a joint bond to Brady for $3,250, payable in two years, with yearly interest, to Mm, Ms executors, administrators and assigns. At the same time they executed a mortgage to him of the same land wMch he had had conveyed to Mrs. Walker, to secure the bond. At the time of the execution of the bond and mortgage Brady stated to them the fact of the conveyance to her, and that he had a divorce suit pending in Bridgeport in the state of Connecticut, and that he had taken the liberty to put the property in Mrs. Walker’s name to prevent Ms wife from getting dower in it, and that he wanted the instruments executed to enable Mm to control the property until the divorce should be obtained; and that it was all right and would get her into no difficulty. The defendants executed the bond and mortgage solely for tMs purpose. The deed as between Brady and Mrs. Walker was without consideration and there was no consideration except the deed for the bond and mortgage.</p> <p>Brady soon after, for the consideration of $ 2,710, assigned the bond and mortgage to the plaintiff, who took them in good faith, and guaranteed the payment of the amount due by the bond.</p> <p>Mrs. Walker had no knowledge of the assignment until the bringing of the present suit, but before taMng the assignment the plaintiff made inquiry of Mr. Walker, who advised Mm that it was a good investment. Mrs. Walker had no knowledge of tMs conversation.</p> <p>The defendants claimed as matter of law upon these facts that there was no valuable consideration for the bond which would have entitled Brady to recover upon it, or use it otherwise than as a means of appropriating the mortgaged premises; that the bond in the hands of the plaintiff was subject to the same defenses that it would have been in Brady’s hands; and that the attempt to enforce its collection out of the defendants operated as a fraud upon the defendants.</p> <p>The court ruled adversely to these claims and rendered judgment for the plaintiff. The defendants moved for a new trial for error in tMs decision of the court.</p>

<p>Complaint for keeping intoxicating liquors with intent to sell, with, a second count for a particular sale; brought originally before a justice of the peace and, by appeal of the defendant, to the Superior Court, and in that court tried to the jury before Culver, J. Yerdict of guilty upon the first count, and motion for a new trial by the defendant. The case is fully stated in the opinion.</p>

Assumpsit; brought to the Superior Court in Fairfield County, and tried to the court before Martin, J. Facts found and .judgment rendered for the defendant, and motion in error by the plaintiff. The case is fully stated in the opinion.

<p>The act of 1775 provides that additional parties may be made plaintiffs and additional defendants may he cited in, upon such notice and such, payment of costs as the court may order. Held that under this statute new defendants might be cited in although there was no cause of action against the original defendants.</p> <p>And that this could he done after the writ had been abated.</p> <p>Replevin will lie under the statute (Gen. Statutes, tit. 19, ch. 17, part 15, sec. 1,) for chattels held on execution.</p>

Trespass on the case for an injury from a colt belonging to the defendant; brought to the Superior Court in Litchfield County. The plaintiff was a minor and sued by his next friend, Levi Baldwin.

Debt upon a contract under seal; brought to the Superior Court in Litchfield County, and tried to the court on the general issue before Hiteheoelc, J. Eacts found and judgment rendered for the plaintiff, and motion in error by the defendant. The case is fully stated in the opinion.

Trover for a sewing machine ; brought, by a.ppeal from a justice of the peace, to the District Court for the county of Litchfield, and tried to the jury, on the general issue, before Fyler, J. Verdict for the plaintiff and motion for a new trial by the defendant for error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Civil action, brought to the Superior Court in Litchfield County by the plaintiff as administrator of the estate of Merritt Marks against the defendant as administrator of the estate of Lewis L. Marks, to recover money received by the defendant which was claimed by the plaintiff to belong to the former estate. Facts found and case reserved for advice. The case is fully stated in the opinion.

Action on the statute with regard to highways to recover damages for an injury from a defective highway; brought to the Superior Court in Litchfield County, and tried to the jury before Hitchcock, J. Verdict for the. plaintiffs and motion .for a new trial by the defendants on the ground of a verdict against evidence, and for an omission of the court to instruct the jury as requested. • The case is fully stated in the opinion.

Trespass on the case for the negligent killing of a mule by the locomotive of the defendants; brought to the Court of Common Pleas of Hartford County, and tried before Calhoun, J. Facts found and judgment rendered” for the defendants. Motion in error by the plaintiff. The case is fully stated in the opinion.

Amicable submission, upon an agreed statement of facts, to the Court of Common Pleas of Hartford County. Tbe facts were as follows:— On the 15th of June, 1880, at New Britain in this state, the plaintiffs made a conditional sale of two one-half barrels of liquors, of the value of 168.28, to one Michael McAvoy of New Britain, and upon the 9th of July, 1880, one other conditional sale to him of one barrel of liquor of the value of $58.05.

Two actions oe trespass, with a count in case in one of them; brought to the District Court of the county of Litchfield, and tried to the court before Stoddard, J. The following facts were found by the court:— On the 21st day of August, 1872, one of the plaintiffs, Louise P. Stevens, was, and for some time had been, the owner of one undivided third part of the premises described in the declaration, (which were a part of a farm of land, owned and occupied by the said Louise…

<p>Replevin for a quantity of liquors; brought to the Court of Common Pleas of Hartford County, and tried to the court before Calhoun, J. Facts found and judgment for a return of the liquors to the defendants. Motion in error by the plaintiffs. The case is sufficiently stated in the opinion.</p>

Bill in equity to reform a policy of insurance; brought' to the Superior Court in Middlesex County, and reserved upon facts found for the advice of tins court. The policy is the same one on which the suit at law was brought which is reported in 45 Conn. R., 430. The case is sufficiently stated in the opinion.

Bill in equity to compel the respondents to release to the petitioners an interest held by the former in certain real estate; brought to the Superior Court in Hartford County, and heard before Beardsley, J. The following facts were found by the court:— The premises in question, situated in the city of Hartford, were mortgaged by the respondents Stevens, Ross and Leavitt, to Albert Day, on the 31st of December, 1875, to secure the sum of $25,000, in nine promissory notes made…

<p>In the ordinary ease of a purchase of an equity of redemption from a mortgagor, with a provision in the deed that the grantee assumes and agrees to pay the mortgage debt, no right of action on the promise accrues to the mortgagee.</p> <p>To give the mortgagee a right of action the promise must have been intended for his benefit; it is not enough that a benefit may accrue to him.</p>

<p>Where a debtor has made a fraudulent conveyance of his property, and afterwards makes an assignment in insolvency, the right to institute a suit against the fraudulent grantee to recover the property vests in the trustee in insolvency.</p> <p>But where in such a case a trustee, after consulting the creditors, concluded that it was not expedient to expend the money of the estate in the attempt to recover the property, and intentionally abandoned the claim as an asset of the estate, it was held that the property was open to the attachment or levy of a creditor of the fraudulent grantor in the same way as if there had been no assignment in insolvency.</p> <p>And it did not affect the case that the levying creditor had proved his claim against the assigned estate and taken a dividend with the other creditors.</p>

Tresbass, for an assault and false imprisonment; brought to the Superior Court in Litchfield County. Facts found by a committee and case reserved for advice. The case, is fully stated in the opinion.

<p>A testator, leaving a large family of children, directed by his will that his property be put into a form in which it would produce interest, and that the interest should be divided among his children at the rate of $100 for each of his sons and $75 for each of his daughters,- the share of any dying to go to their issue, if any, otherwise to the survivors in the same proportions; and that at the death of the last of the children the principal should be “ equally divided among the lawful heirs of said children according to the number of their lieirs as shall then survive collectively.” Held—that the per stirpes rule was to be applied to the division of the income and to the distribution of the principal.</p> <p>The court will apply the per stirpes rule where a devise or legacy is given to heirs and the language of the will is such as to leave the testator’s intention in respect to the mode of distribution in serious doubt.</p>

Trespass on the case for damage to the plaintiff’s property by the wrongful acts of the defendants; brought to the Superior Court and tried to the jury on the general issue before Hitchcock, J. The declaration alleged that the plaintiff was the owner of a piece of land, with a dwelling house and other buildings thereon, in the city of Norwich, through which land a brook known as Franklin Street Brook ran, which brook the defendants had wrongfully appropriated as a public…

Petition for the laying out of a highway; brought to the Superior Court. A committee, to which the case was referred by the court, reported that' they found the highway prayed for not to be of public convenience and necessity- and against laying out the same.

<p>Indictment for rape; in the Superior Court. Tried to the jury before Park, C. J. Verdict guilty, and motion for a new trial for error in a ruling of the. court with regard to the defendant’s right of peremptory challenge. The case is fully stated in the opinion.</p>

Assumpsit upon seven promissory notes made by the firm ' of Hine & Longdon; brought, by appeal from the City Court of the city of Water bury, to the Superior Court in ' New Haven County. The facts were found by a committee and the case reserved for the advice of this court. The case is sufficiently stated in the opinion.

Action upon the statute, for an injury from the defective condition of a highway; brought to the Superior Court. Judgment for the plaintiff and motion in error by the defendants. The case is sufficiently stated in the opinion.

Scire e acias upon a foreign attachment; brought to the Court of Common Pleas. The following facts were found by the court: The plaintiff on the 8th of June, 1880, brought a factorizing suit against one Thomas J. Billbrough, making Edward Church the present defendant garnishee, returnable before a justice of the peace.

Assumpsit upon subscriptions to the stock of a life insurance company, made by Willis Bristol, of whom the defendants were executors; brought to the Superior Court in New Haven County. The defendants pleaded the general issue, with notice that they should offer evidence to show that the cause of action accrued more than six years before the suit was brought and that the claim was not presented against the estate of the deceased within the time prescribed by the statute.

Assumpsit for the rent of a house, brought to the Court of Common Pleas, and tried to the' court, on the general issue with notice, before Mather, J. The following facts were found by the court:— In 1871 Charles M. Pendleton was appointed by the court of probate for the district of Norwich in this state, conservator of the defendant, who was then a resident of the town of Norwich; the court finding that by reason of improvidence and prodigality he had become incapable of…

Assumpsit to recover for services as a nurse; brought to the Court of Common” Pleas of New London County, and tried to the court before Mather, J. Upon the trial the plaintiff introduced evidence to show that she had rendered services to the defendant’s testator, George Gallup, from June, 1873, till February, 1874, by taking care of a cancer from which he then suffered. Her services were the same during the whole of the time.

Civil suit to foreclose a judgment lien, to set aside or postpone a trust mortgage and assignment in insolvency previously executed, and for possession of the premises covered by the lien; brought to the Superior Court; in New London County.

Bill for the foreclosure of a mortgage; brought to the Superior Court. Facts found by a committee; remonstrance against acceptance of report; remonstrance overruled and decree for the petitioner. (Hitchcock, J.) Motion in error by the respondent. The case is sufficiently stated in the opinion.

Trespass and trespass on the case, for the burning at different times of several barns of the plaintiff; brought to the Superior Court in Fairfield County and tried to the jury before Sanford, J. Verdict for the defendant and motion for a new trial by the plaintiff for errors in the ruling of the court. The case is sufficiently stated in the opinion.

Assumpsit to recover the proceeds of the sale of certain, real estate, made by the defendants as administrators, with the will annexed, of the estate of Shadract Smith;, brought to the Superior Court. Demurrer to the declaration, and reservation for advice. The case is sufficiently stated in the opinion.

CrviL action for the recovery of fees due the plaintiff as an officer for the service of writs placed in his hands for service by the defendant, an attorney-at-law; brought originally before a justice of the peace, and by the defendant -appealed to the Court of Common Pleas, and in that court tried to the jury before Sail, J. Verdict for the plaintiff and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Petition under the flowage act; brought to the Superior Court. Referred to a committee; report by the committee in favor of the petitioners; remonstrance against the acceptance of the report; remonstrance overruled and petition granted; (Sanford, J.') Motion for a new trial and motion in error by the respondents. The case is sufficiently stated in the opinion.

The principal allegations of the application were as follows:— That the defendant, the Connecticut Telephone Company, was duly organized under the laws of this state, and located at New Haven, for the purpose of constructing and operating telephone instruments, and placing the same for hire in the dwellings, offices, stores and other places of business of the inhabitants of the various towns in this state.

Indictment for murder in the first degree, in killing Daniel I. Hayes; in the Superior Court for New Haven County; tried to the jury on the plea of not guilty, before Park, C. J. Verdict guilty of murder in the first degree and motion by the prisoner for a new trial for errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Bill in equity to set aside a sale of certain oyster grounds; brought to the Court of Common Pleas of New Haven County, and tried before Stoddard, J. Pacts found, and decree for petitioners, and motion in error by respondent. The case is sufficiently stated in the opinion.

Civil actioh, to recover damages for the alteration of the ■grade of a city street; brought to the Superior Court and tried to the court, upon a general denial, before Hovey, J. Judgment for the defendant, and motion for a new trial by the plaintiff. The case is sufficiently stated in the opinion.

<p>The plaintiff as accommodation endorser had heen compelled to pay a protested note on which the defendants were prior accommodation endorsers. He held as security a mortgage made by another party for the accommodation of the makers, which proving defective he released it and the mortgagor made a new mortgage to a savings bank for a loan of larger amount than the debt, of which loan the plaintiff received and retained the exact amount of the protested note, but there was no agreement as to how the money should be .applied. In a suit against the defendants as endorsers of the note, it was held—</p> <p>1. That on all the facts, which were reviewed by the court, the note must be regarded as paid by the money received by the plaintiff from the security.</p> <p>2. That if'the money was to be regarded as only security in his hands, to which the defendants would become entitled in equity on being compelled to pay the note, the law would not allow him to recover of them the amount of the note and leave them to recover back from him the money in his hands, but would require him to apply the money directly to the payment of the note.</p> <p>[Two judges coming to a different conclusion upon the facts and dissenting as to the,result.]</p>

<p>The statute (Gen. Statutes, p. 371, sec. 12,) which provides that on the refusal of an executor to accept the trust the court of probate shall commit the administration with the will annexed to the widow or next of kin, does not apply to the case of a non-resident testator having estate in this state.</p> <p>The court would, as a matter of course, concede to the executor of the will the right to prove the will in this state and would appoint an administrator with the will annexed only in case of his intentional refusal to act.</p> <p>But this intentional refusal need not be express or formal, but the court may find it in his silence and inaction.</p> <p>Where a testator domiciled in the state of New York at the time of his death, left real estate in this state and creditors here, and the executors upon due presentment in that state refused to pay the claims of the creditors here, and paid all other claims and divided the remaining estate among heirs, taking there for that purpose the rents of the estate here, and omitted for eight years to prove the will in this state or give the creditors here any opportunity through them to reach the estate here, it was held that the probate court might properly find that the executors had refused to prove the will here.</p> <p>The presentation by creditors here of- their claims to the executors in another state, and their neglect upon refusal to take proceedings in the courts of that state, do not impair their right to the interposition of our courts in their behalf. Failing there, they had' the right to enforce their claims through the more convenient process of auxiliary administration here.</p> <p>The statute (Gen. Statutes, p. 372, sec. 3) which provides that administration shall not be granted after seven years, applies only to intestate estates. The appointment of an administrator with a will annexed is governed by the statute (Gen. Statutes, p. 871, sec. 11,) which allows ten years for the proof of wills.</p> <p>Under the statute (Gen. Statutes, p. 375, sec. 1,) which provides that “the estate of any deceased person may be settled as an insolvent estate, if the court of probate deem it expedient,” it is not necessary that there</p> <p>’ should be a special finding by the court that it is expedient, but the judgment of the court that it is so is implied in its orders.</p> <p>Held to be no objection to an order for the sale of real estate here to pay debts, that there was personal property in the state of principal administration sufficient for their payment.</p> <p>And that a court of probate had no right, as a matter of discretion, to refuse to order a sale of real estate here in view of the personal property there.</p> <p>And that the long delay of the creditors in taking proceedings in this state was no objection to such an order of sale, so long as the time had not expired for proving the will.</p> <p>And held that it was not necessary for the court to set out dewer to the widow in the real estate here, under the statute (Gen. Statutes, p. 375, see. 4,) because the widow had accepted in the courts of New York the provision made for her by the will in lieu of dower; and although that provision was the use of • one third of the entire estate for life, it did not appear that the land here was any part of the third set to her or that she had any interest in it.</p> <p>Where an administrator credits himself in his administration account in the probate court with the entire amount of the claims allowed by the commissioners, and asks for an order to sell land to pay the balance in his favor, it is to i)e taken as a method of informing the court of the amount to be raised by the sale and not as an assertion o£ actual payment.</p> <p>The statute (Gen. Statutes, p. 395, sec. 42,) directs that all probate notices required to be advertised in a newspaper shall be “ published in a daily newspaper, or, if there be none, in a weekly newspaper, published in the county where the court ordering the notice is held, and having a circulation in the probate district.” Held that where the court ordered such a notice to be published “ in a newspaper published in the county,” but it was in fact inserted in a daily newspaper published in a city in the probate district and circulating in the district, the actual compliance with the law in the mode of publishing the notice rendered a sale of real estate under it valid, in spite of the defect in the order.</p> <p>The statute (Gen. Statutes, p. 394, sec. 36,) provides for an order for the sale of real estate to pay debts “ in such manner as shall appear to said court to be most for the benefit of the estate.” An order was made to sell “ either at public or private sale as should be deemed to the best advantage.” The sale was made at public auction. Held that this being the mode of sale favored by the law, the sale was good, without regard to the alternative character of the order, the question of the regularity of which was not considered.</p> <p>A party wishing to contest before the Superior Court a claim allowed by commissioners on an insolvent estate, can do so only by appealing from the doings of the commissioners, and not by an appeal from the decree of the probate court accepting their report.</p>

<p>A grand juror’s complaint, upon which a person accused of crime is bound over to the Superior Court, in which court a new information is filed by the state’s attorney, is”a part of the whole proceeding and prevents the running of the statute of limitations against the offence.</p> <p>The defendant pleaded in writing, not guilty, and a further plea that the prosecution was barred by the statute of limitations. Held that he could not plead both pleas.</p> <p>The court below having refused to receive the pleas, and the defendant not offering to amend, the court ordered him to plead orally, guilty or not guilty. Held to be no error.</p> <p>Under the plea of not guilty the defendant was allowed to prove the same matter that he had set up in his plea in bar. Held that if the court had erred in refusing to receive his plea in bar he had not been injured by the ruling.</p> <p>Under the statute (Gen. Statutes, p. 503, sec. 15,) which provides that the receiver of stolen goods shall be “ proceeded against as a principal ” and punished in the same manner, the information may charge merely the theft.</p> <p>And where, under an information charging the theft, the state’s attorney had offered evidence that the defendant was the principal in the theft, it was held that he was not precluded from offering further evidence that he received the stolen goods.</p> <p>A receiver of stolen goods can be prosecuted in the county where the goods were stolen, although he received them in another county.</p> <p>The courts of the latter county would also have jurisdiction.</p> <p>To prove guilty knowledge on the part of the receiver, it may be proved that he had before received stolen goods from the same person from whom he received the goods in question.</p> <p>It is not necessary that the goods before received should have been stolen from the same person, nor be of the same character.</p> <p>A party has no right to offer evidence in support of the character of a. witness for veracity or integrity where it has not been impeached, simply because he has been contradicted.</p> <p>A witness was asked whether he did not live with a woman who kept a house of ill-fame. The court, against objection, admitted the question, informing the witness that he could answer it or not as he chose. Held to be no error.</p> <p>Evidence offered before a jury and ruled out, can not be regarded as having done the party objecting any harm.</p> <p>A horse comes within the term “ goods or articles,” in the statute (Gen. Statutes, p. 503, sec. 15,) with regard to the receiving of stolen goods.</p> <p>Concealing, under the statute, includes all acts which tend to render the discovery of the property difficult, such as attempting to destroy the means of its identification.</p>

<p>The plaintiff had an admitted claim against the defendant for $48; the defendant had an account against him for work done under an agreement that it should be applied on the claim, the amount to be allowed being in dispute, the defendant demanding $41, which was more than the work was worth. The plaintiff brought a suit before a justice of the peace, returnable at nine o’clock in the forenoon of a certain day; the defendant brought a suit against the plaintiff before a justice in a town in another county, where he resided, returnable at six o’clock in the morning of the same day. The plaintiff sent an attorney to appear in the defendant’s suit, who moved for an adjournment, which was refused, and judgment rendered for the present defendant for the full amount claimed by him. The justice allowed two days for an appeal, but none was taken. The plaintiff attended before the justice in his own case, and the defendant appeared, and judgment was rendered for the plaintiff for $48, after deducting $18 allowed by the justice for the defendant’s work. No appeal was taken from this judgment. Upon a suit afterwards brought by the plaintiff for a permanent injunction against the enforcing of the defendant’s judgment, it was held—</p> <p>1. That the facts furnished an equitable ground for such an injunction.</p> <p>2. That the plaintiff could not be regarded as guilty of such laches as to debar him from favorable consideration in a court of equity.</p> <p>8. That it was not a sufficient reason for refusing him equitable aid, that the defendant, after he had brought, his suit, upon the plaintiff’s request for an adjournment of it, had offered to try it at an earlier day than the one named in the writ, and that the plaintiff had refused to do it.</p> <p>4. That the defendant had no equitable claim that the judgment should be allowed to stand for whatever might be justly chargeable for his work above the $18 allowed by the justice in the plaintiff’s suit, as he had a full opportunity to be heard in that suit, as well as to appeal, and if any loss resulted to him from the whole matter it was his own fault.</p> <p>Where in a civil suit under the Practice Act a plaintiff seeks equitable relief, it is no ground of objection that he ought to have availed himself of his legal remedy, since the court under the act can render in the same suit either a legal or equitable judgment, as the case may require.</p>

Assumpsit for goods sold; brought to the Court of Common Pleas, and tried before Harrison, J. Facts found and judgment rendered for the plaintiff for a less sum than he claimed. Motion in error by plaintiff. The case is fully stated in the opinion.

Writ oe error from the judgment of a justice of the peace; brought to the Superior Court for Windham County, and reserved by that court for the advice of this court. The case is fully stated in the opinion.

Verdict for the appellant, and motion for a new trial by the appellees for error in the rulings and charge of the court. The case is sufficiently, stated in the opinion.

Civil action for a false warranty of a horse; brought to the Superior Court in Middlesex County, and tried to the jury before Beardsley, J. Verdict 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.

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

Petition for an injunction against the diversion of water and for other relief; brought to the Superior Court in Tolland County. Facts found by a committee and case reserved for advice. The case is sufficiently stated in the opinion.

Civil suit for advice as to the construction of the will of Merritt Marks, and as to the legality and effect of provisions in it, the plaintiff being administratrix of his estate with the will annexed; brought to the Superior Court in Litchfield County. Facts agreed and case reserved for advice. The case is sufficiently stated in the opinion.

<p>The act of 1881, (Session Laws, 1881, ch. 61,) provides that the county commissioners in each county shall, upon the recommendation of the selectmen of the town where the business is to be carried on, license suitable persons to sell intoxicating liquors in suitable places in said county. Held that under the act the commissioners have a discretion to grant or refuse licenses to persons recommended by the selectmen.</p> <p>And having this discretion the exercise of their judgment in the matter can not be controlled by a mandamus.</p>

Assumpsit, brought by appeal from a justice of the peace to the Superior Court in Litchfield County, and reserved, upon the demurrer of Treadway, one of the defendants, who alone made defence, to the surrejoinder of the plaintiff, for the advice of this court.

Civil action to recover for work done as a laborer; brought, by appeal from a justice of the peace, to the District Court of Litchfield County.

Covenant broken; brought to the Superior Court in Litchfield County, and tried to the court before Hitchcock, J. Judgment for the defendant, and motion by the plaintiff for a new trial. The case is fully stated in the opinion.

Assumpsit on a note given by tke defendant when a minor; brought to the Superior Court in Litchfield County. The following facts were found by the court. The plaintiff sues as administrator of Christopher P. Wheeler, who resided at Goshen in Litchfield County. After Wheeler’s death the note in suit was found by the plaintiff in a box containing notes, government bonds and other valuable papers belonging to him, which he had kept in the vault of a bank in Litchfield.

Civil action to recover possession of an interest in an ore bed and for mesne profits; brought to the Superior Court in Litchfield County, and reserved, upon the defendant’s answer and a finding of the facts, for the advice of this court. The case is sufficiently stated in the opinion.

Civil action, brought to the Superior Court in Windham County. Motion to erase the case from the docket; motion denied; plea to the jurisdiction; demurrer to the plea% demurrer sustained, and, the defendant not answering over, judgment rendered for the- plaintiff, by Carpenter, J. Motion in error by the defendant. The case is fully stated in the opinion.

Civil action, for sale of real estate held in common; brought to the Superior Court in Hartford County, and heard before Carpenter, J. The property was a piece of land on Main and Pearl streets in the city of Hartford, covered with buildings, and was owned by twelve persons, the petitioners owning one hundred and seventeen 144ths and the defendants twenty-seven 144ths.

Brainard, as executor of the will of James M. Goodwin, deceased; taken to the Superior Court in Hartford County. The appellants were legatees and devisees under the will. The testator died March 30th, 1870. The will was executed February 2d, 1870. The parts important to the present case are as follows:— “ Fifth.

Assumpsit, to recover of the defendant bank money deposited with it by the treasurer of the town; brought to the Superior Court in Hartford County.

Ejectment; brought to the City Court of the city of Hartford. The demanded premises were a part of a building standing on State House Square in the city of Hartford, and which was originally built as a state-house and courthouse.

Bill for a foreclosure, brought to the Superior Court in Hartford County and heard before Culver, J. The same case was before this court at a former term, when the court reversed a judgment of the Superior Court dismissing the bill. 47 Conn. R., 486.

Shit- to remove a cloud from a title; brought to the Superior Court in Hartford County and heard before Hoveyi >T. The court found the following facts:— On the 4th day of September, 1877, the plaintiff was the owner iu fee of the land in question, being a lot in the town of Hartford, and on the same day executed, in due form of law, a deed quitclaiming it to Martha Giles, the defendant, her heirs and assigns, and on the 6th day of October, 1877, lodged the deed for record in…

Civil action to recover for the use of a portable steam engine; brought originally before a justice of the peace, and, by the appeal of the defendant, to the Court of Common Pleas of Hartford County, and tried in that court to the jury before Calhoun, J. Verdict for the plaintiffs and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Civil ACTION to recover damages for a breach of contract to hire the plaintiff as a clerk; brought to the Court of Common Pleas in Hartford County and tried to the court before Bennett, J. The court found the following facts:— On the 22d day of September, 1879, the defendant, at the solicitation of E. M. Lay, purchased a fruit store at Hartford, belonging to Perry & Scoville, and was to take possession on the following morning. Lay was acting as the agent of the sellers.

<p>Bill ih equity to compel the transfer of certain stocks and the payment of money; brought to the Superior Court in Hartford County.</p> <p>The petition alleged that Jonathan Butler, of West Hartford in this state, died in 1855 leaving a considerable estate, and a will by which, after giving certain legacies, he disposed of the residue of his estate as follows:—“ To my two children, George and Eliza Butler, two undivided third parts, in equal portions, to them and their heirs forever; and to my son, Nathan Butler, the use, occupation and income, during his life, of the remaining third part. If, however, by reason of sickness, infirmity or age, such income or use should not be adequate to his comfortable support, I direct that the share given him, viz., said third part, including the fee simple of the same, or any part of the same, be sold, and the avails applied for his support and benefit. In case the whole estate given to my son Nathan Butler should not be expended for his benefit, including the fee-simple or remainder that may be sold, then what remains of said property shall go to my other children and their heirs forever.” That the petitioners were the children and heirs of the children of said Jonathan Butler to whom the property given to the said Nathan for life was to go after his death. That Jonathan Butler at the time of his death owned, besides other estate, forty-one shares of the stock of the .¿Etna Insurance Company, of Hartford, which company was incorporated in 1819 with a capital stock of $150,000 of the par value of $100 per share, and with power to increase its capital to the sum of $500,000, which increase had been made at the time of the death of said Jonathan in 1855. That the legislature in 1857 authorized a further increase to $1,500,000; and in 1864 to $3,000,000; which increases were made and the new stock distributed by vote of the directors pro rata among the old stockholders. That in 1871, after heavy losses, the capital stock was reduced to $1,500,000, and immediately after increased to $3,000,000 by actual subscription and payment, the right to subscribe being given pro rata to the old stockholders and being of the value of $75 for each share above the sum required to be paid in for it. That in 1872 the company reduced its capital to $2,000,000 and again increased it by the creation and sale of new stock to $3,000,000, the right to subscribe for the new stock being given as before to the old stockholders and being of the value of $75 for each share. That there was set to Nathan Butler from Jonathan’s estate fourteen shares of the stock of said .¿Etna Insurance Company, and that all the new stock that was disti’ibuted was issued to him and in his own name, and the right to subscribe for the shares of new stock upon the last two increases of stock were sold by him for a large sum of money, to wit, more than $2,000. That Nathan Butler died in 1878, childless, leaving a will by which, after making certain small bequests, he gave the residue of his property to the children of two nieces, and leaving an estate of considerable amount, a part of which, amounting to about $24,000, was made up of stock distributed to him by said .¿Etna Insurance Company, and of profits received by him on the sale of the right to subscribe for a portion of said new stock. That all said stock rightfully belonged to the estate of said Jonathan Butler, as did also the money received as premium on the sale of the right to subscribe for said new stock, and that under the will of said Jonathan all the .income given to said Nathan and remaining unexpended at his death reverted to said Jonathan’s estate, for the benefit of the petitioners and other heirs of said Jonathan. That the respondent Sisson was administrator with the will annexed of said Nathan Butler, and had taken possession of all said stock and other property as assets of his estate and claimed that the same belonged to the estate and were held by the said Nathan absolutely and not merely for life. That in 1879 the Security Company, a corporation chartered by the legislature of this state, and located at Hartford, and empowered by its charter to act as executor, administrator and trustee, had been duly appointed by the court of probate for the district of Hartford administrator with the will annexed of the estate of said Jonathan and had accepted said trust and was proceeding with the settlement of the estate; and that, by the terms of its charter, it was exempted from the necessity of giving bonds for the faithful discharge of its duties in the trusts which it was authorized to undertake. That the petitioners, who were or represented a part of the legatees under the will of said Jonathan Butler, who were, on the death of said Nathan, to receive the property so held by him for his life, had requested said Security Company to bring suit against the said Sisson as administrator of said Nathan’s estate, to recover from him said stocks and other property, but that said company had refused to bring such suit; and that on such refusal the petitioners had offered to pay all the expense of such suit and save the estate from all risk or loss and had asked said company for permission to use its name as administrator in bringing such a -suit, but said company had refused to allow its name to be so used. That some of the persons equally entitled with the petitioners to said stock and other property under the will of the said Jonathan Butler, were interested as legatees under the will of said Nathan and were not willing to join the petitioners in the present suit or in any proceeding to enforce their rights under the will of said Jonathan. And that the said Sisson, as administrator, was intending to distribute said stock as a part of the estate of said Nathan, and would do so unless restrained by the court.</p> <p>The petition then prayed for an injunction restraining the said Sisson from distributing the stock, for a disclosure as to the dividends and income received from it while it had been in bis hands, and as to the personal property of any kind that he had received as a part of the estate of said Nathan, for an account of all moneys received, and for a decree that all said stocks should be transferred by said Sisson as administrator to the Security Company as administrator of the estate of said Jonathan, and that all the property remaining at the time of the death of said Nathan and being property derived from the estate of said Jonathan, either directly or as income from the same, should be delivered by said Sisson to said Security Company as a part of the assets of said Jonathan’s estate; with a prayer for general relief.</p> <p>The respondent Sisson demurred to the petition, and the court (Hovey, J.,') held it insufficient and dismissed the bill. The petitioners brought the record before this court by a motion in error.</p>

<p>Application for a writ of prohibition; brought to the Superior Court for Fairfield County, and heard at the September term, 1881, before Bovey, J. The case is fully stated in the opinion.</p>