Volume 5 — Connecticut Reports

This was an action of debt, brought on a judgment of the county court for Fairfield county, rendered at the November term, 1799.

IN ERROR. This was an action of account, brought by Calvin Pitkin and Amelia Pitkin, his wife, Simeon Hinman and Ashbel Monson, “the said Amelia, while sole, and the said Simeon and Ashbel, being executors on the estate of Samuel Smith, deceased, and the said Calvin, since his marriage with the said Amelia, joint executor with his said wife, in her right,” against Leveret S. Chapman, executor on the estate of Isham Chapman, deceased.

This was an action of assumpsit, to recover certain sums of money, loaned, by the plaintiffs, to the defendants. There was one special count; to which were added the usual money counts. Held: that our relief was not in chancery. 3 Conn. Rep. 135 The Chief Justice, in the supreme court in Massachusetts, in the case of Marcy v. Clark, giving the

This was an action of assumpsit, in several counts. The first count charged the defendants, as the indorsers of a promissory note, made by Hezekiah Shaylor 2nd, for 225 dollars, dated July 3d, 1820, payable to the order of Ansel Shaylor, at the Middletown Bank, sixty days after date. The second was a general count for money had and received, for the plaintiffs use.

This was an action on a receipt, given by the defendants, to the plaintiff, for 20 tons of hay, 4 cows, 3 yoke of oxen, 3 horses and 30 cords of wood, previously attached, by the plaintiff as a deputy-sheriff in a suit brought by one Bigelow against the defendant, Emmons; which property, the defendants, by the terms of the receipt, promised to safely keep, and redeliver to the plaintiff on demand.

This was an action of ejectment, demanding the scisin and possession of such proportion of an undivided moiety of a certain piece of land in Durham, containing thirty rods, and of the buildings and vats standing thereon, and appurtenances thereto, and other implements for carrying on the tanning business, as 326-41 bears to 365.

IN ERROR. This was a bill in chancery, brought by Joel Turner and Anna, his wife, against Joseph Coe, Joseph Hale, Hezekiah Hale and William Bevins, to obtain a reconveyance of certain lands, or the… Held: that one of them, who was satisfied with the decree as it respected himself, could not withdraw a writ of error brought in the names of all, but that the others might proceed without him. contended, 1. That the plaintiffs had adequate remedy at law.

On the hearing of the bill stated in the preceding case, at Middletown, February term, 1822, before Brainard, J. the defendants offered to prove, that after the delivery of the deed mentioned in the bill, executed by the plaintiffs and Joseph Hale to Hezekiah Hale, by Joseph Coe, on or about the 10th of May, 1821, Anna Turner, one of the plaintiffs, made certain admissions and declarations, in the presence and hearing of Joseph Coe, and sundry other persons, but not in the…

This was an action of assumpsit, for supplies furnished to, and money laid out and expended for the support of Daniel Mother, and his wife and children, from the 1st of January 1806, to the 1st of January 1816, alleged to have been legally settled inhabitants of the town of Lyme, residing in Middletown, destitute and needing relief.

This was an action of ejectment for several tracts of land, formerly the property of Joseph Harris, deceased. The cause was tried at New-London, October term, 1821, before Peters, J. The jury, under the direction of the judge, gave a verdict for the defendant; and the plaintiffs moved for a new trial, for a misdirection.

This was an action of assumpsit, brought by Sill, describing himself as of Lyme, in New-London county, in this state, against the Bank of the United States, before the county court for New-London county, to recover the amount of a note or bill, issued by the defendants, promising to pay to C. S. West, or bearer, on demand, 100 dollars.

IN ERROR. Pursuant to the advice given by this Court, at the last term, a respondeas ouster was awarded; and the cause was tried before the superior court, October term, 1822, on the plea of non-assumpsit: when the jury returned a special verdict, containing the following statement of facts.

This was an action of ejectment; tried at New-London, January term, 1822, before Hosmer, Ch. J. The plaintiff claimed title to the demanded premises, by the levy of an execution against the defendant, on the 3rd of February, 1821. The defendant claimed, that the title was, at that time, in Simeon Smith, his father, by an absolute deed from him, the defendant, dated the 11th of January, 1820, with warranty, and for the consideration actually paid of 1500 dollars.

This was a scire-facias in a process of foreign attachment, charging the defendant as the trustee and debtor of John Avery, an absent and absconding debtor of the plaintiff. The defendant pleaded, 1st, that he was not the trustee and debtor of Avery; and 2ndly, that Avery was not an absent and absconding debtor. On these issues the cause was tried, at Norwich, January term, 1823, before Brainard, J. In support of the first issue, the following facts were proved.

This was an action of ejectment; tried, on the general issue, at Norwich, January term, 1823, before Brainard, J. The plaintiff claimed title, by the levy of an execution in his favour against the defendant. The levy was made, by the officer, on the 11th of February, 1822, on eighty acres of land; and immediately afterwards, he called out the appraisers, who were sworn, and viewed the land.

This was an action of ejectment or disseisin, for a tract of land, called the Adgate farm; tried, on the general issue, at Norwich, January term, 1823, before Brainard, J. The defendant, after giving due notice, adduced in evidence the following documents. 1.

IN ERROR. This was a bill in chancery for a foreclosure of mortgaged premises, brought originally to the county court in New-London county. The plaintiffs were Francis, Edward, Mary-Ann, Fanny and Elizabeth Smith, who were averred to be children, and the only heirs at law, of Francis Smith deceased, the mortgagee. The defendants were Rufus Roath, the mortgagor, and Walter Roath, assignee of the equity of redemption.

This was an action of ejectment, tried, on the general issue, at Norwich, January term, 1823, before Brainard, J. The plaintiff claimed title, by virtue of the levy of an execution in his favour against Nathan Swan, father of the defendant, The defendant claimed title, by virtue of a mortgage deed from Nathan Swan to him, dated the 8th of January, 1821.

A new trial having been granted, in this case, pursuant to the advice, of the Court, (3 Conn. Rep. 438. 445.) the plaintiffs amended their declaration, by adding two new counts; and the cause was tried again, at Brooklyn, September term, 1823, before Bristol, J. The plaintiffs gave in evidence the following letter: “ Messrs. Rapelye & Purdy; Gentlemen, My brother Roswell is wishing to go into business in New-York, by retailing goods in a small way.

This was an action on a bond, executed by the defendant, on the 20th of January, 1817, for 369 dollars, payable to the plaintiff and Sarah Wales, since deceased; tried at Brooklyn, January Term, 1823, before Brainard, J. On the 26th of November, 1812, Samuel Webb agreed with the plaintiff, Sally Wales, and Sarah Wales, for a loan of 250 dollars; and for the loan and forbearance thereof, he agreed to pay them three dollars per month.

This was an appeal from a decree of the court of probate for the district of Windham, passed on the 23d day of June, 1821, approving the last will of John Grinman, deceased. The cause was tried at Brooklyn, September term, 1822, before Bristol, J. Among the reasons assigned by the appellants, the principal one was, that the will in question had been revoked, by the testator.

This was an action of ejectment, tried at Brooklyn, September term, 1825, before Bristol, J. The plaintiff claimed title, by virtue of the levy of an execution in his favour against the defendant. The execution was dated the 17th of August, 1820, and was originally made returnable “ within sixty days next coming ; but before it was levied, these words were erased.

This was an action of assumpsit on are award of arbitrators, tried at Brooklyn, January term, 1823, before, Brainard, J. The submission was as follows: “Whereas we, the undersigned, have a cause now subsisting between us, relative to the right of turning the water from a certain spring or rivulet, each one claiming the right of turning the same on to his own land; and now, to settle the same legally, we agree and bind ourselves, in the sum mentioned hereafter, to leave the…

This was as an action against the defendant, as the indorser of a promissory note, tried at Brooklyn, January term, 1823, before Brainard, J., on an issue closed to the court. On the 25th of March, 1818, John Parish made a promissory note, not negotiable, payable to the defendant, in six months. The defendant immediately indorsed it in blank, and delivered it to the plaintiff.

IN ERROR. This was an action on a promissory note, executed by Sheldon, the original defendant, on the 2nd of July, 1819, for 185 dollars, 71 cents, and interest.

IN ERROR. This was an action of assumpsit, brought by Tyler, who was keeper of the Windham county gaol, against the town of Brooklyn, in which the gaol was, for the support of one Henry L. Mosher, a prisoner.

IN ERROR. This was a petition for a new trial. The original action was assumpsit; brought by the Rev George S. White against the society of Trinity Church in Brooklyn, for services rendered, from the 19th of December, 1817, until Easier Tuesday, 1818, at the special instance and request of the defendants, as pastor and teacher in said society. The cause was tried in the superior court, on the general issue ; and a verdict was given for the defendants.

This was an action of trespass, for the taking of a horse, the. property of the plaintiff, by the command of the defendant. The defendant pleaded in bar the following facts. Held: at which the mayor, four aldermen and five of the common council were present ; when said Ball made a report of his doings, and rendered his account of monies disbursed, and of services rendered, by him, in building and flagging said side-walk.

A new trial having been granted, pursuant to the decision of this Court, 4 Conn. Rep. 450. 455. the cause was tried again at term, 1 823, before Hosmer, Ch. J, The chattels mentioned in the plaintiff’s declaration, were levied on, and taken, by Smith, a constable, one of the defendants, and were sold according to law.

This was an action on the case, against the defendant, as sheriff of Tolland county, for the escape of Ebenezer Allen, jun. from gaol. Held: after due notice to Allen; and after hearing the evidence on both sides, that court decided, in conformity to the claim of the plaintiff, that Allen had conveyed his real estate to defeat and defraud his creditors, and ordered his support to cease.

A new trial having been granted, pursuant to the decision of this Court, 4 Conn. Rep. 238, 245, the cause was tried again, at Litchfield, August term, 1822, before Peters J. The plaintiff abandoned the first count.

This was an action of trespass, alleging, that the plaintiffs, on the 4th of December, 1821, owned and possessed an oil mill, in Salisbury, upon a stream of water running out of Long-pond, and a dam upon said stream, made and used by the plaintiffs, for the purpose of conducting water from said stream to the said oil mill, to propel the same ; and that the defendants, with force and arms, broke down and entirely destroyed the said dam ; whereby the plaintiffs were greatly…

This was an action of assumpsit founded on the following written agreement: “Whereas Asa Wells of Tolland, Hampden county, commonwealth of Massachusetts, has executed to me, this day, his warrantee deed of the farm, which he now occupies in said town, I hereby bind myself, my heirs, executors and administrators, to furnish the said Asa, on demand, a well executed warrantee deed of 566 acres, and two thirds, of land lying in the town of Victory, Essex county, and state of…

This was an action of ejectment, commenced in 1821. The case was as follows. The demanded premises were formerly the land of John Ticknor. Upon his death, it was, on the 27th of June, 1774, distributed to Prudence Ticknor, one of his children and heirs. She, before her marriage with Jared Strong, had two illegitimate children, viz. Betsey Brace, and John Gardner, who are both living. After her marriage, she had a legitimate child, Samuel Strong, who is living.

IN ERROR. In February, 1820, David Hubbell jun. and others brought a petition against the town of Stratford, for a highway within the limits of the borough of Bridgeport in that town, returnable to the county court of Fairfield county, stating such highway to be of common convenience and necessity.

A new trial having been granted, pursuant to the decision of this Court, (4 Conn.

This was a bill in chancery, praying that the legal title of certain shares of the stock of The Bridgeport and Newtown Turnpike Company, to which the plaintiff claimed to be entitled in equity, might be transferred to him.

This was an action of assumpsit, to recover the sum of 70 dollars, expended, by the plaintiffs, for the support of William Wells, his wife and children, alleged to be inhabitants of the town of Reading.

This was an action against the defendant, as the indorser of a promissory note, made by one Gottsberger, for 4000 dollars, dated the 9th of August, 1820, payable in sixty days. The cause was tried at Fairfield, December term, 1823, before Peters, J. To prove certain facts, which became material in the course of the trial, the plaintiffs offered Eliakim Lockwood, who had indorsed the note after the defendant, as a witness.

This was an action on the covenant of seisin in a deed, executed by the defendant and Clara, his wife, on the 24th of April, 1819, and seasonably recorded. The cause was tried at Danbury, September term, 1823, before Brainard, J. Previous to the 24th of April, 1819, the defendant and his wife had executed a deed of the same land, with covenants of warranty and seisin, to Zachariah Dunscombe; who mortgaged it to David Dayton.

IN ERROR. This was an action of book debt, brought by Kellogg, against Jones and Stebbins, which was referred to auditors. At the term of the superior court, in December, 1822, the auditors reported a balance against the defendants of 56 dollars, 65 cents. The defendants filed a remonstrance to the report, stating the following facts. On the 19th of October, 1816, the defendants were indebted to the plaintiff on book, in the sum of 223 dollars, and in that sum only.

This was an action of assumpsit, alleging, that the defendant, at Norwalk, on the 4th of October, 1819, received of the plaintiff the sum of 200 dollars, to convey, for the plaintiff, to the city of New-York, and there pay the same over, on the plaintiff’s account, to L. and C. Suydam; but that the defendant neglected to pay the same over to them, and retained the same for his own use.

This was an action of assumpsit, in two counts. The first was a general count for money had and received of Amelia, while sole and unmarried, for her use. The second was special, stating.

This was an action of trespass, for taking certain goods and chattels; tried at New-Haven, August term, 1823, before Chapman, J. The plaintiff claimed title to the property described in the declaration, by virtue of the service by him of a writ of attachment, in favour of Gershom Smith against Healy, one of the defendants, directed to the plaintiff as a constable of the town of Guilford.

This was an action of trespass quare clausum fregit, alleging, that the defendants, on the 1st of September, 1815, entered upon the land of the plaintiffs, lying in a place then called North-Milford, now called Orange, and between that day and the commencement of the action, cut down and carried away from the premises 400 large trees, 300 cords of wood, &c. The cause was tried at New-Haven, January term, 1824, before Bristol, J. The plaintiffs are, and during the period in…

IN ERROR. This was an action of debt, brought by Baldwin against Bradley, to recover the penalty of seven dollars, inflicted by a by-law of the town of Branford, for taking clams contrary to the provisions of such by-law.

This was an action of ejectment for a piece of land in Durham, containing about six acres, usually called the parsonage lot.

This was an action of trespass quare clausum fregit ; tried at Middletown, February term, 1823, before Hosmer, Ch. J. The plaintiff owned a farm of land, with a dwelling-house on it, in which he and his family lived, lying on the East side of a highway leading from the South line of Haddam to the head of Chester cove in Saybrook. This highway was, originally, sixteen rods wide.

This was an action of trespass quare clausum fregit ; tried at Haddam, August term, 1823, before Chapman, J. The plaintiff claimed title to the locus in quo, by virtue of a deed of a farm of land from Samuel Lynde to Nathaniel Shaw ; and by several intermediate conveyances from Shaw to the plaintiff, all which referred to that deed, for the description and boundaries of the land conveyed.

This was an appeal from a decree of the court of probate for the district of Middletown, assigning dower to Mary Stewart, widow of James Stewart deceased, in the real estate of her late husband.

<p>This was an action of trespass, tried at Middletown, February term, 1823, before Hosmer, Ch. J.</p> <p>To prove a material fact, the defendants offered in evidence the deposition of Mary Trowbridge ; to the admission of which the plaintiffs objected, on the ground, that it was written by the agent of the defendants, or of one of them. The circumstances were these. On Monday previous to the taking of the deposition, the parties met at the house where Mrs. Trowbridge</p> <p>resided, with the magistrate who ultimately took the deposition. He attempted then to take it ; but after writing a few lines, Mrs. Trowbridge became faint and exhausted ; and the business was adjourned to the next evening. Afterwards, in the absence of the plaintiffs and their counsel, and of the magistrate, Rand, one of the defendants, requested Cornelia Hall, who was living in the house with Mrs. Trowbridge, to write her deposition, from time to time, as she was able to give it. With this request Miss Hall complied ; and, at the time adjourned to, the plaintiffs not having attended, the paper thus written by her, was presented to the magistrate, and being read to Mrs. Trowbridge, was signed by her, and sworn to. The Chief Justice held, that the deposition was inadmissible ; and rejected it. The plaintiffs having obtained a verdict, the defendants moved for a new trial, on the ground of this decision.</p> <p>contended, that the deposition of Mrs. Trowbridge was legally taken. From her peculiar situation, it was necessary, that some person, residing in the house with her, who could watch her returns of strength, should write down her testimony for her. An amanuensis was indispensible. Rand requested Miss Hall to act in this capacity. He gave her no instructions. She did not know what use was to be made of the writing. There was not only nothing fraudulent or unfair in the transaction, but there was nothing in the situation of Miss Hall calculated to produce any bias on her mind. Aside from the single circumstance, that the request came from Rand, she acted in as unexceptionable a manner as she could. Then, does this circumstance, of itself, destroy the deposition ? It was a lawful act ; not prohibited by statute, and clearly not malum in se. If a request from the party to write a deposition, vitiates it; then such a request to the deponent, or to the magistrate, would have that effect. The material enquiry is, not at whose request the writing was done, but in what capacity the writer acted ; whether it was done by an agent of the party ; by one presumed to have an interest or bias in his favour. This, evidently, was not Miss Hall’s situation. If she was the agent of Rand, her act was his act ; but did Rand write this deposition ? What she did was in aid of her inmate, the deponent, or of the magistrate engaged to take the deposition. It lightened their labour. She was their substitute ; but not Rand’s.</p> <p>after remarking upon the salutary nature of the provisions of law, intended to guard against fraud in the taking of depositions, and the importance of adhering to the general rule prescribed, without enquiring whether there was any unfairness in the particular case, contended, that Miss Hall was in fact the agent of Rand, and acted as such, in writing the deposition of Mrs. Trowbridge. Whether she lightened Mrs Trowbridge's labour, or whether she was, in any sense, the amanuensis of Mrs. Trowbridge, is immaterial. Sufficient it is, that Rand employed her to do this service ; and in doing it, she acted under his authority. If A. employs B. to do a particular act, and B. does it ; is not B., in doing that act, the agent of A.? The writing of depositions by amanuenses, employed by the party, is a door leading to all the mischiefs the legislature intended to guard against. That door this Court will not open.</p>

IN ERROR. This was an information against Southworth, before the county court of Middlesex county, alleging, That at Saybrook, on the 16th of July, 1821, said Southworth, with force and arms, an assault and battery made on the body of Samuel Webb, and him beat and struck on the breast and head, and then and there, in a violent manner, with great force, threw him upon the ground, and dragged him, while lying on the ground, into a brook or pond of water, and pressed and held…

This was an action of assumpsit, brought by the plaintiffs, as indorsees, against the defendant, as indorser, of a promissory note, made by Frederick Pearl, dated the 22d of February, 1821, payable in ninety days, at the United States Branch Bank in Middletown.

This was an action of indebitatus assumpsit for fees as counsellor and solicitor, with a quantum meruit count, and the common money counts ; commenced in January, 1822. The cause was tried at New-London, October term, 1823, before Peters, J. The defendant pleaded non assumpsit, with, notice that under this plea, one ground of defence would be, that the plaintiff’s right of action did not accrue within six years next before the commencement of the suit.

<p>A juror is an inadmissible witness to prove the misconduct of his fellow jurors, for the purpose of impeaching their verdict.</p>

<p>IN ERROR.</p> <p>This was a bill to perpetuate testimony.</p> <p>The bill stated, That on the 30th of August, 1813, the plaintiff’s father, Richard Jerome, executed and delivered to the plaintiff a deed of gift of a certain piece of land in Waterford, containing about eighty acres, bounded, &c. ; which deed was signed and sealed, by the said Richard Jerome, witnessed by two subscribing witnesses, and acknowledged before proper authority, in and by which deed, said land was, by said Richard Jerome, conveyed to the plaintiff; that by the mutual consent of the grantor and grantee, said deed was left in the hands of Jabez Manwaring, of Waterford, to be by him kept for the benefit of the plaintiff; that immediately after the execution and delivery of such deed, the plaintiff executed and delivered to said Richard Jerome a lease of the premises, during his life, and determinable on his death, which lease was, by the parties thereto, in the same manner as the deed, deposited for safe-keeping with said Manwaring ; that said deed and lease were executed, when no other persons were present, than the parties thereto, and William Westcott, Jabez Manwaring, and William P. Cleaveland, the two former of whom were the subscribing witnesses, and the latter was the justice of the peace, who took the acknowledgment; that since the execution of said deed, the grantor had been, at times, of an unsound mind, and at the date of plaintiff’s bill, he had a conservator; that said Westcott was dead ; that said Manwaring had been, for some time past, of unsound mind, with occasionally lucid intervals ; that on the 17th of August, 1817, when said Manwaring was distracted and of unsound mind, some persons other than the parties to the deed, obtained it from his possession, and destroyed it ; that no suit at law, to try the plaintiff’s title to the land, could be commenced, until after the expiration of said life estate, when the plantiff might be without proof of his title, unless means were taken to perpetuate the evidence thereof; that though the legal title was in the plaintiff, he was without remedy at law ; that the premises were well worth 2000 dollars, and the plaintiff’s interest in them, 1500 dollar. The plaintiff, therefore, prayed the court, as a court of equity, to take his case into consideration, to enquire into the facts stated ; and upon finding them true to appoint some suitable commissioner or commissioners, to take the depositions of said Manwaring and of said Cleaveland, (if the former should be able to testify) and of such others as might have heard the facts in question, or any of them, stated, by the grantor, when of sound mind ; or that the court would order and decree the title to the remainder in fee, after said life estate, to be in the plaintiff, and enjoin the defendants, under a suitable penalty, from disputing such title at law ; or in some other way grant relief.</p> <p>To this bill there was a demurrer. The court adjudged the bill sufficient ; and thereupon passed a decree in favour of the plaintiff, appointing Ebenezer Learned, Esq. a commissioner to take the testimony sought to be perpetuated. To obtain a reversal of this decree, the defendants moved for the transmission of the record to this Court, pursuant to the statute of May, 1823 ; which was accordingly done.</p> <p>contended, that the bill was insufficient, on the following grounds.</p> <p>1. There was no affidavit annexed to the bill, verifying the facts stated in it. 1 Madd. Chan. 153. Philips v. Carew, 1 P. Wms. 116.</p> <p>2. The bill did not state what title or interest the plaintiff had in the land. Coop. Eq. Plead. 52, 55,6. It did not specify the kind of deed, which was executed, or the estate, which was conveyed. The right claimed was not described with sufficient precision.</p> <p>3. The bill was equally defective with respect to the interest of the defendants. The plaintiff has not stated, that the defendants, or any one else, contested his title, or had made any claim to the property.</p> <p>4. The bill, with the prayer for perpetuating testimony, joined a prayer for relief. Rose v. Gannel, 3 Atk. 439. Vaughan v. Fitzgerald, 1 Scho. & Lef. 316.</p> <p>5. The bill did not state what facts the plaintiff wished to establish, by the testimony sought to be perpetuated. 1 Madd. Chan. 157, 8.</p> <p>remarked, That the chancery practice of England had not been adopted in this state ; and the correctness of a proceeding before our courts, could not be tested, by the rules of that system. He then contended,</p> <p>1. That an affidavit was not necessary. This has never been required, by our chancery practice, in any case. Oaths from parties and persons interested are sufficiently multiplied already. But, if it might have been required, as preliminary to a hearing, what ground of complaint does the want of it furnish now ? The hearing has been had ; and the facts stated have been found true.</p> <p>2. That the bill stated a title in the plaintiff below. His father, who was one of the defendants, executed and delivered to him a deed, which conveyed to him the premises. It was not necessary to shew a title in the grantor. The averment that he conveyed, however, necessarily implied that he had title.</p> <p>3. That the interest of the defendants was sufficiently stated. The grantor’s interest, and that of his wife, was manifest. If any persons, who are without interest, have been, from abundant caution, made parties to a proceeding of this nature, they may be allowed their costs, and the decree be made against those only, who have an interest. In the present case, it is to be presumed, that justice was done in this respect; nothing appearing to the contrary.</p> <p>4. That the prayer of the bill was not for two things, but for one of them. There is no reason why a prayer in the alternative, like this, should be bad, A party may end his bill with a prayer, either for the perpetuation of testimony, or for relief. Then, why may he not state his prayer in the alternative ? But admit that the bill prays for two things ; still they are things perfectly compatible with each other. Every person who seeks for the perpetuation of testimony, seeks it with a view to relief. Why should a party be compelled to bring two suits, when the business may as well be done in one? (a)</p> <p>5. That the bill stated sufficiently the general objects of the testimony sought for. The particular facts, which the witnesses will testify, cannot he known, and need not be stated.</p> <p>6. That the decree complained of, was not a final one, but was a preliminary proceeding, having reference to an ulterior suit, in which the rights of the parties were to be settled. It was not, therefore, the subject of a writ of error.</p> <p>7, That if the bill Rad defects, yet from the nature of the proceedings, they were cured by the decree.</p>

<p>By the word month, in the statutes of this state, is meant a calendar month.</p> <p>A person subject to an overseer, is capable of appointing appraisers of land, on which an execution against him has been levied, without the assent of his overseer ; such appointment not being a contract within the letter, or an act within the spirit of the statute.</p> <p>The statute providing for the appointment of overseers, being in derogation of common right, and the liberty of the citizen, must be construed strictly.</p>

<p>Where A. devised to B. and C., his sons, a tract of land, lying Easterly of a certain brook, “to be equally divided between them for quantity and quality, and B. to have the part next the brook;” it was held, that such devise vested in the devisees a tenancy in common.</p> <p>A deed, by one tenant in common, of part of the common estate, describing it by metes and bounds, is void.</p>

<p>Selectmen are not empowered, virtute officii, to submit to arbitrament a question regarding the settlement of a pauper, which involves the right or liability of the town.</p> <p>By the act of February, 1731, providing that any soldier in the continental army, who should be credited to any town in this state as part of its quota, should be considered as a proper inhabitant of such town, such soldier acquired a legal settlement in such town.</p> <p>Therefore, where an alien enlisted, in 1775, as a soldier in the revolutionary army, and served the United States, as a soldier in that army, during the war of the revolution, as one of the quota of the town of P. ; it was held, that such soldier thereby acquired a settlement in the town of P., and consequently, the capacity to gain a settlement in any other town, by commorancy.</p>

<p>This was an action on a bond, in the penal sum of 10,000 dollars, executed, by the defendants, to the plaintiff, as judge of probate, on the 14th of May, 1821. The action was commenced on the 30th of October, 1822. The condition shewn on oyer, and recited in the plea of the defendants, was, in the form prescribed by statute, for the faithful performance, by James Powers, of the duty of administrator of the estate of Joshua Powers, deceased. The defendants pleaded performance generally.</p> <p>The plaintiff replied, setting forth the following breaches: 1st, That said James did not make, or cause to be made, a true and perfect inventory of all the goods, chattels, credits and estate of the said deceased, which came to the possession or knowledge of the said James, as administrator as aforesaid, and the same exhibit, or cause to be exhibited, into the registry of the said court of probate, at or before the 14th day of June, 1821 : 2ndly, That said James did not make, or cause to be made, and exhibited to said court of probate, a true and just account of his said administration, at or before the 14th day of November, 1821 : 3rdly, That said estate, which came to the possession and knowledge of the said James, amounted to a large sum, viz. to the sum of 3812 dollars, 19 cents, which James received long prior to the date and service of the plaintiff’s writ; that said estate was represented insolvent, commissioners duly appointed, and the term of six months limited, by said court of probate, for the creditors to said estate to exhibit their respective claims; that Joseph Smith 2nd, Eunice Lee and Christopher Comstock were creditors of said estate, and within the time limited by said court, exhibited their respective claims to said commissioners, and said commissioners made their report to the said court of probate, on the 9th day of April, 1822, in which said commissioners found and reported that there was due from said deceased to said Joseph Smith 2nd the sum of 314 dollars, 14 cents, to said Eunice Lee the sum of 84 dollars, 9 cents, and to said Christopher Comstock the sum of 349 dollars, 75 cents; and that said James, neglecting his duty as administrator, hath never paid said several creditors the sums due to them respectively, nor to either of them, nor any part thereof, but said sums are now due and unpaid.</p> <p>The rejoinder of the defendants averred, 1st, That said administrator did make, or cause to be made, a true and perfect inventory of all the goods, chattels and credits and estate of said deceased, on the 13th of August, 1821, which inventory was appraised by William L. Payan and Simeon Smith, free-holders appointed by said court, on the 9th of July, 1821, and being so made and exhibited, was, by said court, on said 13th of August, accepted, and ordered to be recorded: 2ndly, That on the 13th of August, 1821, said estate was duly represented insolvent, and commissioners thereon were duly appointed, after notice given to the creditors ; which commissioners, on the 11th of March, 1822, made their report to said court, which was accepted by said court ; and on the second Monday of March, 1822, said court passed an order to sell the personal estate of said deceased, and on the 11th of November, 1822, a like order to sell the real estate ; which orders were duly complied with, by said administrator, on the 13th of January, 1823, when he made return of his doings under said orders to said court, when the same was accepted by said court; and on the 21st of May, 1823, said administrator made out a true and just account, as administrator, and exhibited the same to said court, which was accepted and allowed: 3rdly, That after said accounts were so allowed on said estate, viz. on the 21st of May, 1823, it appearing, that said estate was in fact insolvent, said court struck the average thereon, and ordered said administrator to pay to the several creditors, who had proved their debts, the sum of 51 cents on the dollar on their respective claims; all which creditors have been duly paid or satisfied their respective demands, except said Joseph Smith 2nd, and Eunice Lee, who have never demanded the same of said administrator: 4thly, That the said administrator hath in all things, complied with and fulfilled the condition of said bond, as the law requires.</p> <p>To this rejoinder the plaintiff demurred; and the court adjudged it to be sufficient, and rendered judgment for the defendants. To reverse that judgment, the present writ of error was brought.</p> <p>contended, 1. That the rejoinder of the defendants was a departure from their plea, and was, therefore, bad. First, it was a departure at common law ; being a matter in excuse of performance. 1 Chitt. Plead. 621. Harding v Holmes, 1 Wils. 122, 2 Wms. Saund. 84. c. Secondly, it was equally a departure, under the statute of May. 1822, sect 2. That statute authorizes the defendant to rejoin several matters by distinct rejoinders; but it does not authorize him to rejoin matters not pursuant to his plea.</p> <p>2. That the matters alleged by the defendants, in excuse of the breaches assigned by the plaintiff, were in themselves insufficient.</p> <p>The first breach is, that the administrator did not make and exhibit an inventory of all the estate of the deceased, by the 14th of June, 1821. What is the excuse for this breach? That he made and exhibited such inventory afterwards, which was accepted by the court of probate. This, in a court of law, is no excuse for the non-performance of an express stipulation. The acceptance by the court was no waiver of the breach; as it was a matter of course to receive the inventory, when it was returned. It may be said, that it was impossible for the administrator to return the inventory, on the 14th of June, because no appraisers were appointed until after that time, viz. on the 9th of July But it was the sole fault of the administrator, that appraisers were not sooner appointed. He ought to have applied for, and obtained, their appointment. The judge never appoints appraisers, except upon the application of the executor or administrator. An impossibility resulting from the default of the party charged, is obviously no excuse. Nor would it be, even if no negligence or misconduct were imputable to him ; as he has bound himself to perform, at all events.</p> <p>The second breach is, that the administrator did not exhibit his administration account, by the 14th of November, 1821. How is this excused? By stating the proceedings, which took place, after the estate was represented insolvent. This rests upon the same ground as the excuse for the first breach. The several orders of the court of probate were to be obtained only on the application of the administrator; and if an extension of the time for rendering his account became necessary, he should have applied for such extension.</p> <p>The third breach, which was the principal inducement for commencing the action, is, that the administrator had neglected to pay certain creditors. That this, if not excused, is a breach, was decided in Cony v. Williams, 9 Mass. Rep. 114. See also The Archbishop of Canterbury v. House, Cowp. 140. With regard to two of the three creditors named in the replication, no excuse is offered, except that they had not made demand. But no demand was necessary ; for the debts had been ascertained, and were due ; and this was well known to the administrator.</p> <p>3. That the rule of damages must be the amount due to the creditors for whose benefit the suit is brought. Pierce v. Whittemore, admr. 8 Mass. Rep. 282.</p> <p>contended, 1. That the rejoinder was not exceptionable as being a departure. In the first place, the matters stated in the rejoinder, if they constitute a defence in any form, are equivalent to performance, and support the plea. Secondly, if the rejoinder were bad at common law, still it is good under the statute of May 1822. The object of that statute was to place a rejoinder to breaches assigned in the replication, precisely upon the footing of a plea to breaches set out in the declaration. Now, if the plaintiff had assigned these breaches in the declaration, would not a plea alleging the matters contained in this rejoinder, be good in point of form? The statute explicitly auihorizes the defendant first to plead performance, and then, after having so pleaded, to rejoin as many several matters as he might have pleaded, had the condition and the breaches thereof been set forth in the declaration. In such case, the defendant, by force of the statute, is authorized to plead in the same manner as though he had not before pleaded. There can be no such thing as a departure ; because the defendant is under no obligation to support the plea. If this be not the construction of the statute, its provisions are of little use.</p> <p>2. That the breaches assigned were sufficiently answered, by the matters alleged in the rejoinder.</p> <p>As to the first breach. First, the condition, so far as it required the exhibition of an inventory by the 14th of June, 1821, which was one month only after the date of the bond, was illegal and void; as the law allows the administrator two months to do this duty in. Stat. 202. tit. 32. s. 14. Secondly, the exhibition of an inventory by the 14th of June, 1821, was rendered impossible, by the act or default of the judge of probate, the plaintiff in this action ; as he did not appoint appraisers until the 9th of July, 1821. Without the appointment of appraisers, the inventory could not legally be made. Stat. 202. tit. 32. s. 12. The administrator is the agent of the judge of probate, and ought not to be entrapped, but is entitled to protection in the honest discharge of his duty. Thirdly, the judge of probate accepted the inventory exhibited on the 13th of August, 1821. By this act, he declared himself satisfied with the performance of the condition in this respect, waiving a stricter performance.</p> <p>As to the second breach. First, the performance of the condition alleged to be thus broken, was impossible. Every executor or administrator has a right to represent the estate insolvent. If he does, the judge must allow one month for the creditors to be heard on the appointment of commissioners; and then, the shortest time that is to be allowed for the creditors to bring in their claims, is six months ; making in the whole, at least seven months. The administrator, therefore, could not settle his administration account within six months. Advana seu impossibilia lex neminem cogit. Secondly, the administrator could not render his final account until after the order of sale ; and the order of sale was not made until after the time, when, it is claimed, the account should have been rendered. In addition to this,the order of sale is the act of the judge, the plaintiff in this suit, Surely he has no right to complain. addition to this plaintiff in this suit, Surely lie has no Thirdly, the account rendered was accepted by the judge ; and all the orders made by the judge, in relation to the settlement of this estate, were duly complied with, by the administrator.</p> <p>As to the third breach. In the first place, the plaintiff has stated no facts, from which it appears, that the defendant, at the commencement of this action, was bound to pay these creditors. No average was struck, until many months afterwards ; and even the order of sale was not made until a month afterwards. The administrator, then, had no rule of payment. He not only had no money to pay with, but he did not know how much to pay. Secondly, there has been no demand made of the administrator. It is not his duty to go round to the creditors, and pay them, before they call for their money.</p>

This was an action of assumpsit for the support of Margaret Helping, a pauper. In January, 1810, the pauper had a settlement in Saybrook. From that time until November, 1820, she resided and had her home in Norwich, being sole and unmarried; and during the whole of this period, she supported herself.

IN ERROR. This was an information, before the county court of New-London county, against Lester Pratt, alleging, that on the 9th of October, 1823, he made an assault upon Gilbert T. Smith, one of the constables of the town of Lyme, and resisted him in the execution of his office, while arresting the body of Pratt, by virtue of a lawful writ of attachment.

IN ERROR. This was an action of debt, brought originally, by Noyes, before Joseph Chadwick, Esq. a justice of the peace for New-London county, to recover of the defendant, Hayden, the sum of five dollars, alleged to be due from him as a forfeiture for the breach of certain by-laws of the town of Lyme, passed on the 6th of October, 1823. These were set forth in the declaration, consisting of five sections.

This was an action of account, brought by Brown, as surviving partner of the late firm of Brown and Hall, against Thomas Lawrence, John F. Lawrence and Thomas G. Casey, joint partners, under the firm of T. and J. F. Lawrence & Co., charging them with having received of Brown and Hall sundry promissory notes, to the amount of 837 dollars, to collect, as the agents, attorneys and bailiffs of Brown and Hall, and thereof to render their reasonable account.

This was an action of ejectment, tried at Brooklyn, September term, 1823, before Peters, J. The plaintiff claimed title, by virtue of the levy of an execution, issued on a judgment of the county court for Windham county, legally rendered at the December term, 1821, in favour of fhe plaintiff, against Isaac Gillet, one of the defendants.

This was an action of assumpsit, brought by the Rev. Josiah Whitney, D. D., to recover his salary as a minister of the gospel, for the… Held: on the 17th of November, 1755, the society voted to call the plaintiff, who then was a preacher of the gospel, and a candidate for settlement, to settle with them in the work of the gospel ministry, and to pay him the sum of sixty-five pounds, lawful money, annually, as a salary, and the sum of three hundred pounds, as a settlement,…

IN ERROR. This was a suit for maintenance of a bastard child, instituted and prosecuted, by the select-men of the town of Hampton, against the person accused of begetting such child.

IN ERROR. This was an action in favour of Mary Spalding, brought by Samuel L. Hough, her conservator, against Asa Butts and Amey Barstow, joint administrators of Samuel Barstow, deceased.

This was an action on a promissory note, to which the defendants pleaded the general issue, accompanied by notice of a process of foreign attachment.

IN ERROR. This was a bill in chancery, brought originally to the superior court, by Mather against Griswold, for a conveyance of the legal title to a certain piece of land, containing twenty-eight acres and a half. On the 12th of February, 1316, Matthew Griswold mortgaged to the plaintiff two pieces of land in Windsor, containing about 120 acres, as security for the indorsement and payment of certain notes, to the amount of 765 dollars.

IN ERROR. This was a bill in chancery, brought by Stoughton, to redeem mortgaged premises. The plaintiff and Jonathan Pasco were trustees of the goods and effects of one Stephen Heath, deceased, for the benefit of certain legatees, according to his last will and testament.

This was an action on the case against the defendants, as owners of the sloop Rising Sun, for the non-delivery of goods shipped on board that vessel, from Middletown, in Connecticut, to Petersburgh, in Virginia.

This was an action of ejectment, tried at Hartford, September term, 1824, before Bristol, J. The plaintiffs claimed title to the demanded premises, by virtue of a mortgage deed from James Fortune, the sole heir of Luke Fortune, deceased, who died seised of such premises.

IN ERROR. This was an action of assumpsit, brought originally before a justice of the peace, against George Phelps, keeper of the turnpike gate of the Hartford and New-London Turnpike. Company in Marlborough, to recover the sum of 12 1-2 cents, alleged to have been unlawfully exacted and taken of the plaintiff, by the defendant, for passing said gate.

IN ERROR. This was a bill in chancery, brought originally to the superior court, against Luke Watson and Bissell and Haskell, stating a defect in a mortgage deed executed by Watson to the plaintiff, and praying for a confirmation of his title. The facts in the case were these.

This was an action of trespass for a horse ; tried at Litchfield, August term, 1824, before Brainard, J. The plaintiff claimed title to the property described in the declaration, as a purchaser at a sale made by him, as deputy sheriff on an execution in favour of Anson Squires against Nathaniel Wilson. The defendant claimed the property, by virtue of a previous bona fide sale thereof, made by Wilson to him.

This was an action, brought by the plaintiff, as executor of Raphael Marshall, deceased, on a promissory note, made by the defendant, dated the 20th of March, 1816, for 200 dollars, payable to said Raphael Marshall, or order, on demand. The action was commenced on the 5th of June, 1823, more than six years after the execution of the note. The cause was tried at Litchfield, August term, 1824, before Brainard, J. The defence was the statute of limitations.

IN ERROR. This was an actian of trespass, for taking and carrying away a quantity of indigo, the property of the plaintiffs. Held: that the continuance of a shop, previously erected, on the land, subjected the defendant in trespass quare clausum fregit.

IN ERROR. This was an action of debt on book, in common form. During the pendency of the cause in the county court, after issue joined on the plea of owe nothing, Calvin Butler, Esq. was, by agreement of the parties, appointed sole auditor to adjust and liquidate their accounts.

This was an action on the covenants of warranty in a deed of land.

IN ERROR. This was a bill in chancery, brought originally to the county court of Litchfield county, by Dudley Case, against the town of Barkhamsted, for relief against a promissory note for 29… Held: by the proprietors, in common. In 1780, they were laid out into divisions, tiers and lots, which were aparted among the proprietors in severalty; they reserving a portion of such lands between the tiers for highways, and bounding the lots thereon.

This was a bill in chancery for a foreclosure and other relief. On a hearing before the superior court in Fairfield county, the facts were found; and the case was reserved for the opinion of this Court. Daniel S. Godfrey, being indebted, by note, to Mary Kent, the plaintiff’s testatrix, in the sum of 2,950 dollars, on the 23rd of March, 1813, mortgaged to her a tract of land, as collateral security.

This was an action of debt, on a bond, given to the plaintiff, as sheriff of the county of Fairfield, for the appearance of Gershom Lyon, one of the defendants, at the county court then to be holden at Fairfield, on the last Tuesday of February, 1822.

IN ERROR. This was an action brought by David Plant, Esq. as judge of probate, against Sidney Wetmore, George Wetmore, William C. Wetmore and Charles M'Ewen, on a probate bond, conditioned for the faithful execution of the office of joint executors of the last will and testament of Victory Wetmore, deceased.

This was a bill in chancery to redeem morgaged premises. On the 15th of March, 1820, Isaac Wakelee jun. mortgaged a tract of land to Stephen Wheeler; and a few days afterwards, he mortgaged another tract to David Minott. On the 5th of December, 1821, Minot brought a bill of foreclosure against the mortgagor, and on the 4th Tuesday of the same month, obtained a decree, foreclosing his equity of redemption in the latter tract.

This was an action of ejectment, brought to recover possession of land, mortgaged, by the defendant, to the plaintiff, for the security of a certain promissory note specified in the condition of the mortgage deed.

This was a bill in chancery to redeem mortgaged premises, and for an account of rents and profits. The bill stated the following case.

This was an action of assumpsit against the defendants as indorsers of a promissory note, made by Sturges & Sherman, for 3,450 dollars,… Held: only choose directors of the company, who should have the power of adjusting and settling the concerns of the original subscription, and dividing among the holders of said stock the balance that might remain after all its engagements should be settled; and that a subscription of 500,000 dollars, divided into shares of twenty-five…

This was an action against Thaddeus W. Bennett, Lathrop L. Sturges and Ebenezer P. Cady, merchants in company, under the firm of Bennett, Cady & Co., as indorsers of a promissory note made by Sturges & Sherman. The cause was tried, on the general issue, at Fairfield, December term, 1822, before Chapman, J. The plaintiffs gave in evidence the charter of the company; and the defentants, the laws of the state of New-York in relation thereto.

This was an action of assumpsit for monies expended by the plaintiffs, in support of one Deborah Smith, and Griswold, Isabella, Jonathan and Juliana, her minor children; all of whom were alleged to have been, at the time of furnishing such support, paupers of the town of New-Haven.

This was an action of debt on a bail bond for 1000 dollars; the condition of which was—“That whereas Frederick Pearl was attached, at the suit of The President, Directors and Company of the New-Haven Bank, in the sum of 1000 dollars, by writ dated the 10th of December, 1822, to appear before the county court to be holden at New-Haven, on the third Tuesday of March, 1823; now, if the said Frederick Pearl shall appear before said court according to said attachment, the above…

IN ERROR. This was a bill in chancery against Calvin Frisbie and Elias Pond, to redeem a certain piece of land mortgaged to Frisbie, by Pond, the equity of redemption in which had been foreclosed by Frisbie.

This was an action of assumpsit for money paid by the plaintiff as surety for the defendant.