Volume 50 — Connecticut Reports

<p>A guaranty that a note is collectible is a conditional one, the condition being that diligence should be used in collecting it.</p> <p>Some courts of high authority in this country have held that the only evidence that the note is not collectible is the failure of legal proceedings, diligently pursued, to result in collection. Other courts of equal authority have held differently. It seems more in accordance with the general principles adopted by this court in cases of guaranty, and more just, not to require a suit, with all its attendant expense and trouble, where it must be fruitless, and to allow under some circumstances the diligence to be waived by the party for whose benefit it is required.</p> <p>But where the exact diligence required is expressly stated in the contract, the want of it will not be excused.</p> <p>In a suit upon a guaranty of the collectibility of a note the burden of proof is on the plaintifE to show, either that he has exhausted all legal remedies, or that the maker was insolvent, or that the guarantor had waived the legal proceedings.</p> <p>B executed to the plaintiffs his note on demand, on the back of which the defendants signed the following guaranty:—“For value received, we jointly and severally guarantee the within note good and collectible until paid.” In a suit brought on the guaranty several years later, and without having brought suit against the maker, whom the plaintiffs claimed to have been insolvent, the plaintiffs offered evidence that it was understood between the maker, the guarantors and themselves at the time the note was made, that the maker had signed it without consideration, at the request and for the accommodation of the guarantors, and upon their promise that they would take care of it and pay it within a short time. Held that this evidence was inadmissible as going to establish at the very making of the note an oral agreement in direct ■ conflict with the written guaranty.</p> <p>And held that it was not admissible for the purpose of establishing a waiver by the guarantors of the institution of proceedings against the maker for the collection of the note, as it would produce the same effect with a material change of the written contract.</p> <p>Nor admissible to estop the guarantors. Promissory representations as to future action dependent upon a contract to be entered into, do not create an estoppel.</p> <p>Under our statute with regard to fraudulent conveyances (Gen. Statutes, p. 345,) it is not necessary to prove a specific design to defraud the particular creditor who assails the conveyance; the intent to defraud one creditor renders the conveyance void as to all.</p> <p>The language of the statute differs somewhat from that of 13 Eliz., c. 5, but it is essentially copied from it and must receive a similar construction.</p> <p>Where there are no facts in evidence on which a request for a charge is based, the judge is not bound to give any instruction to the jury upon it.</p> <p>The omission to charge in writing upon written requests, as required by statute (Gen. Statutes, p. 442, sec. 2,) would he ground for granting a new trial, unless waived by the party making the request or occasioning no injury.</p>

<p>A person licensed by tbe county commissioners to sell intoxicating liquors in a certain town, gave a bond to the treasurer of the town with sureties, as required by law, in the sum of $1,000, the condition of which was that if he “ should duly observe all laws relating to intoxicating liquors ” it should be void. Held—</p> <p>1. That the keeping open a place on Sunday where intoxicating liquors were exposed to sale was a breach of the bond, although the act was forbidden by a statute with regard to Sunday and not by that relating to intoxicating liquors.</p> <p>2. That it was not necessary that the bond should provide in terms that its amount was to be forfeited upon a breach, that being necessarily implied.</p> <p>3. That it was not necessary that the act constituting a breach of the bond should be merely an abuse of a privilege granted by the license.</p> <p>4. That it was not necessary that the plaintiff should have sustained any damage by reason of the breach of the bond.</p> <p>5. That the $1,000 was the measure of damages.</p> <p>It is admissible to prove the time when a certain occurrence, foreign to the case, took place, for the purpose of fixing by it the time when a certain act, within the case, was done.</p>

<p>The statute (Gen. Statutes, p. 270, sec. 5,) provides that a complaint for a search warrant for liquors kept for sale contrary to law, and also the search warrant, shall describe the place where kept “ with reasonable certainty.” A complaint described the place as follows:—“Near the corner of E. street in the borough of D. in a wooden building occupied by J. H., consisting of a one story building and garden attached thereto and occupied as a place of public resort; also in another wooden building between the first mentioned and the D. TV. office, and the cellar of said wooden building, used by said J. H. as a dwelling house; which said liquors are so owned and kept at said place.” The search warrant described the premises in the same manner, except that it used the word places for place. Held that the place was described with reasonable certainty.</p> <p>“The cellar of said wooden building” was to be taken to mean the cellar of the wooden building then being described.</p> <p>And the allegation of the complaint that the liquors were kept “ at said place” did not vitiate the warrant by its uncertainty, because it might be understood as applying to the whole premises described,' and also might be stricken out as surplusage.</p> <p>And held that the warrant was not void for not stating that a complaint had been made and by whom, that three residents of good moral character had made oath to the complaint, and that the justice had reason to believe that liquors bad been sold in tbe dwelling house contrary to law, since all this appeared in the complaint and the certificate of the justice attached to it, both of which were on the same paper with the warrant and a part of the process.</p>

Action on a judgment; brought to the Court of Common Pleas, and tried to the court before Sail, J. Facts found and judgment rendered for the plaintiff, and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

Slit for the foreclosure of a mortgage; brought to the Superior Court. Facts found by a committee and a decree of foreclosure passed. Motion in error by McDonald, one of the defendants. The case is sufficiently stated in the opinion.

Civil suit for advice as to the construction of the will of John Grou and the duty of the plaintiffs as trustees under it; brought to the Superior Court in Hartford County, and, upon an agreement as to the facts, reserved for the advice of this court. The case is sufficiently stated in the opinion.

Trespass for false imprisonment; brought to the Superior Court in Middlesex County, and tried to the jury before Sanford, J. The defendant pleaded a general denial, with notice of a justification under a tax warrant as a tax collector.

Assumpsit for supplies furnished a pauper; brought to the Superior Court in Middlesex County. Facts found by a committee and ease reserved for advice. The case is sufficiently stated in the opinion.

Appeal to a judge of the Court of Common Pleas of Hartford County from an assessment for a city sewer.' Facts found and case reserved for advice. The case is fully stated in the opinion.

Information for selling and keeping for sale intoxicating liquors; in the Superior Court in Hartford County.

Suit to establish, an equitable mortgage and to enforce a vendor’s lien; brought to the Superior Court in Litchfield County. The following facts were found by a committee.

Suit for a foreclosure; brought to the Superior Court in Litchfield County. The facts were found by a committee. On the 3d of May, 1872, William E. Cutting procured from the plaintiffs a loan of $1,400, and on the same day mortgaged to them as security for it, by a warranty deed, the property now sought to be foreclosed, which consisted of about' a quarter of an acre of land in Salisbury with a dwelling house and tin shop on it. The mortgage was at once put on record.

Civil action to recover the price of a yoke of oxen sold; brought before a justice of the peace, and, by appeal of the plaintiff, to the District Court of Litchfield County. Pacts found and case reserved for advice. The case is sufficiently stated in the opinion.

Action for damages for the hilling of a horse of the plaintiff, by the negligent running of a train of the defendants; brought to the Superior Court in Tolland County. The ease was heard in damages, after a default, before Beardsley., J., who found the facts and awarded only nominal damages. The plaintiff brought the record before. this court by a motion in error. The case is fully stated in the opinion.

<p>Application to the Superior Court in Hartford County for admission as an attorney, reserved for the advice of this court.</p>

Scire Facias upon a process of foreign attachment; brought to the City Court of the city of Hartford and by the appeal of the defendants to the Superior Court for Hartford County, and heard in that court, upon a denial of indebtedness on the part of the defendants, before Beardsley, J. The action in which the defendants were garnisheed was brought against William Rogers. The following facts were found by the court.

Suit for the conveyance of certain lands and for the foreclosure of a mortgage; brought to the Superior Court in Middlesex County. The defendants were O. V. Coffin, Allyn M. Colegrove, Lucia C. Birdsey, Sarah H. Colegrove and Allyn M. Colegrove, administrator of the estate of Elihu H. Birdsey. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Assumpsit on an indorsement of a promissory note by tbe defendants; brought to the Superior Court in Hartford County, and tried to the court on the general issue before Culver, J. The declaration contained four counts, the first describing the defendants as second indorsers, the second as first indorsers, and the third as makers; the fourth set forth the facts attending the transaction as implying a promise to pay the note. The following facts were found by the court.

Writ of error to this court from a judgment of the Superior Court upon an indictment for murder. Held: then and there feloniously, wilfully and of his malice aforethought did discharge and shoot off against and upon the said Daniel J. Hayes; and that the said James Smith with the leaden bullet aforesaid, out of the pistol aforesaid, then and there by force of the gunpower aforesaid, by the said James Smith as aforesaid discharged and…

Civil action to recover wharfage collected by the defendants, at a wharf which the plaintiffs claimed to own; brought originally before a justice of the peace and, by appeal, to the Court of Common Pleas. The defendants were a joint stock corporation. Facts found by a committee and case reserved for advice. The case is sufficiently stated in the opinion.

Trespass qu. cl. fr., brought to the City Court of the city of Waterbury and heard before Cowell, J. The defendant pleaded the general issue, with notice that he should show that the locus in quo was a part of a public highway, that the plaintiff had no title to the same, and that if the highway had been discontinued the locus belonged to his grantors and to bim as adjoining proprietors. The following facts were found by the court.

Action upon the statute (Gen. Statutes, p. 232, see. 10,) for an injury upon a highway defective from the condition of the track of the defendant railroad company at a crossing ; brought to the Superior Court. The same case was before this court at a former term, (49 Conn. R., 243,) on a motion in error of the defendants from a judgment rendered on a hearing in damages after demurrer overruled.

Bill nar equity for the transfer of certain stocks, an account, the payment of money, and an injunction; brought to the Superior Court. Facts found by a committee and case reserved for advice. The case is fully stated in the opinion.

Action on a contract for the purchase of a piano; brought to the City Court of the city of New Haven. Demurrer to complaint. Judgment for defendant, (Stuckley, J.) Motion in error by the plaintiff. The ease is fully •stated in the opinion.

Suit for a contribution; brought to. the Superior Court. The principal allegations of the declaration were as follows :— 1. Prior to the 24th of April, 1874, the defendant with the plaintiff and other insurance corporations, had severally issued policies of fire insurance to Messrs.

Civil suit for the laying out of a highway; brought to the Superior Court. Report of a committee in favor of laying out the highway, remonstrance by the defendants against the acceptance of the report, remonstrance overruled and decree laying out the highway, (Beardsley, J!,) and motion in error by the defendants. The case is sufficiently stated in the opinion.

<p>Where a tenant in common has made necessary repairs upon the property ,-p he can recover of his co-tenants their share of the expense.</p> <p>Previous to the adoption of the Practice Act assumpsit would have lain in such a case, and a recovery can now be had in an ordinary civil action under that act.</p> <p>In a suit for a partition or sale of property held in common, the jurisdiction of the court is to be determined by the value of the property.</p> <p>Whether, if the value is alleged in the complaint, that would not determine the jurisdiction: Quaere. If no value, is alleged the question can be raised by the pleadings.</p> <p>Where in an action in the Court of Common Pleas by one tenant in common against another, for expenses incurred in repairing the property, the defendant filed a cross-complaint, praying for a sale of the property, and the court found, upon an answer filed by the plaintiff to that effect, that the property was of a value beyond the jurisdiction of the court, it was held that the cross-complaint should be dismissed.</p>

<p>Trespass on the case for interfering with the flow of water to a mill, for injuries to belting therein, and for obstructing access to land; also a petition for an injunction against the building of a bridge; brought to the Superior Court, and on facts found, both cases reserved for the advice of this court. The facts are sufficiently stated in the opinion.</p>

<p>The statute (Gen. Statutes, p. 355, see. 22,) provides that “the executor or administrator of any deceased mortgagee, or any guardian or conservator whose ward is a mortgagee, may, on the payment, satisfaction or sale of the mortgage debt, release the legal title to the mortgagor or party entitled thereto.” Held not necessary that the release be of the whole mortgaged property on payment of the whole debt, but that a part might be released on payment of a part of the debt.</p> <p>A, owning an equity of redemption of only nominal value in a tract of land subject to several mortgages, agreed with JB to sell him a part of the tract for a price agreed, the proceeds to be applied in part payment of the mortgages. The mortgagees consented to release the portion for the payment proposed, wbicli B was to mortgage to a savings bank to raise the money to make tbe payment. The mortgagees thereupon executed a release to A of the portion in question, and A made a warranty deed to B, the papers all being deposited -with the savings bank until the transaction was completed. One of the mortgagees however was an administrator and another a guardian, and the treasurer of the savings bank was of opinion that they could not, under the statute, release a part of the mortgaged property, and declined to make a loan on the part unless the whole tract was released. B therefore advised A to get this done, but A was not able to accomplish it and so informed B. B soon after procured elsewhere the money needed to purchase the part and informed A that he had it ready whenever he should make him a perfect title. Thus matters stood until B put upon record a caveat, claiming an equitable title to the portion in question and describing the release of a part, as at first proposed, as insufficient. Afterwards G purchased the equity in the whole tract at a sale of it by A’s assignee in bankruptcy. Upon a suit in equity brought by G against B to remove the cloud from the title, it was held that the title expected by B under the agreement and demanded by the caveat being one which required a release of the whole tract by the mortgagees, which they were not bound to give and which they had not authorized A to stipulate for, B had not acquired an .equitable title to the portion of the land in question.</p>

<p>While a suit for the foreclosure of a mortgage was pending the parties, made a settlement under which the mortgagor was to pay the costs of the suit and the interest due within thirty days and at once to give the mortgagee a quitclaim deed of the mortgaged premises; the mortgagee to withdraw the suit and lease the premises to the mortgagor for a sum equal to the interest of the debt and to re-convey to him at any time within six months on his payment of the debt; which quitclaim deed and release were given according to the agreement. A tender of the amount of the debt was made after the expiration of the six months. Held—1. That a specific performance could not be decreed, because the money was not tendered within the six months.—2. That the transaction did not constitute in equity a new mortgage, it being clear upon the facts that the parties intended only a right on the part of the debtor to a re-conveyance upon a payment of the debt within the six months.</p>

Suit to foreclose a builders’ lien; brought to the Superior Court, and heard before Beardsley, J. Facts found, and judgment rendered for the defendants, alrd motion in error by the plaintiff. The case is fully stated in the opinion.

<p>Upon the question whether certain iron bought of M. & Co., who were iron brokers, was sold as their own or for some other party, the court charged the jury that if they should find that M. & Co. were brokers and as brokers selling such iron at the time, and that the purchaser knew this, it would of itself be evidence of notice to the purchaser that they were not the owners but were selling for some one else. Held to be erroneous.</p> <p>The question whether the loss of a document has been satisfactorily proved, so that secondary evidence of its contents can be admitted, is ' wholly one of discretion with the judge trying the case, and can not be reviewed on error.</p> <p>Jt is enough if the preliminary proof establishes a reasonable presumption of the loss of the document.</p> <p>Where the original paper is in the hands of a third person, out of the , jurisdiction of the court, secondary evidence of its contents is admissible. °</p> <p>This rule applied to a letter-press copy of a telegraph dispatch, accompanied by proof that the dispatch was sent.</p> <p>Also to invoices of goods, when the originals were on file in the custom house in another state.</p>

<p>The plaintiffs were partners under the name of “D. P. Tayler & Co.,” and for several years had manufactured and sold hair-pins, which were well known and had a ready sale as “Tayler’s Hair-pins” and “D. P. Tayler & Co.’s Hair-pins,” the device on the packages, which were put up in pink and yellow wrappers, being used exclusively by them and being well known to the trade. The defendants were also engaged in the manufacture and sale of hair-pins and had procured from one L. B. Taylor the right to mark their packages “ L. B. Taylor & Co.,” to which was added the words “ Cheshire, Conn.” In a suit for an injunction against the use of their device it was found that “ the size and color of the labels and wrappers and the device printed therein used by them resembled the plaintiffs’ labels, wrappers and devices thereon, to such a degree that they were liable to deceive careless and unwary purchasers who buy such goods with but little examination, but that purchasers who read the entire trade mark and label could not be deceived. It was further found that the defendants adopted the label and device iu good faith and in the belief that they were not infringing the plaintiffs’ rights.” Held that an injunction should be granted. (One judge dissenting. )</p> <p>And that the injunction should be “ against such a use by the defendants of the name of “L. B. Taylor & Co.,” in connection with any device upon pink or yellow wrappers inclosing hair-pins of their manufacture, as that the combination would be liable to lead purchasers to believe that hair-pins manufactured by them were manufactured by the plaintiffs.</p> <p>The defendants were not excused for the use of the label and device by the fact that they acted in good faith and believed that they were not infringing the rights of the plaintiffs. The injury to the plaintiffs remained the same.</p> <p>The purpose to be effected by an injunction in such a case is not primarily to protect the purchaser, but to secure to the manufacturer the profit to he derived from the sale of his goods to all who may desire and intend to purchase them.</p> <p>And held that, for the purpose of proving that the defendants’ packages with their labels so closely resembled those of the plaintiffs as to mislead an ordinary purchaser, wholesale dealers in hair-pins might testify as experts.</p>

<p>The act of 1878 (Session Laws of 1878, ch. 129, sec. 2,) provides that upon a foreclosure the court shall, upon the motion of either party, appoint three appraisers, who shall, on the foreclosure taking effect, appraise and report to the court the value of the mortgaged property, which appraisal shall be conclusive upon the parties as to the value; and that in any later suit upon the mortgage debt the creditor shall recover only the difference between the value of the property as thus fixed, and the amount of his claim. Held that, under this statute, it was proper for the appraisers to report the whole value of the mortgaged property without reference to prior mortgages upon it, leaving the fact and amount of such prior incumbrances to be shown in any later suit upon the mortgage debt.</p>

<p>A plaintiff, after suit brought, can not assign the demand to his attorney, so as to defeat a legal right of set-off which the defendant had at the time the suit was commenced.</p> <p>This right of set-off, originally given by Gen. Statutes, p, 434, sec. 13, is fully established by the 5th section of the Practice Act.</p>

<p>A complaint for a new trial will not be entertained where the ground on which it is sought is the misconduct of a juror, affecting the verdict, although not discovered by the party seeking a new trial until it was too late to file a motion in arrest of judgment. (Two judges dissenting.)</p> <p>A motion in arrest of judgment is the proper and only remedy in such a case.</p>

<p>The fifth section of the insolvent act (Gen. Statutes, p. 379,) provides that “when a writ of attachment shall have been issued upon a claim founded on contract of one hundred dollars or more, upon which writ shall have been indorsed the afiidavit of the plaintiff or his attorney that he believes such claim to be justly due, if the officer serving the same, after making demand of all such debtors as are found within his precincts, cannot find sufficient property to satisfy such attachment, * * the plaintiff may petition the court of probate for the appointment of a trustee to take possession of the property of such defendant for the benefit of his creditors.” Held that the officer serving the writ was bound to attach real estate, if he could find sufficient to satisfy the claim.</p> <p>Also that it made no difference that the real estate was incumbered, so long as the equity of redemption was of sufficient value.</p>

<p>The act of 1881, which gives to the county commissioners in each county sole and final jurisdiction of the granting and revoking of licenses for the sale of intoxicating liquors in the county, does not constitute them a court within the meaning of the constitution of the state.</p> <p>It is therefore no objection to the act that it does not provide for a trial by jury of the question whether a licensee has violated the law or foran appeal from a revocation of his license by the commissioners on the ground of such violation.</p> <p>The county commissioners, being only a board and not a court, a writ of prohibition casa not be issued against them by the Superior Court, for such a writ, in the absence of a statute authorizing it, lies only against an inferior judicial tribunal.</p> <p>Licenses granted for the sale of intoxicating liquors, upon fees paid therefor, are not a contract between the state and the persons licensed, and are not property in any constitutional sense.</p> <p>They form a part of the internal police system of the state, are granted in the exercise of the police power of the state, and may at any time he revoked by legislative authority.</p> <p>The commissioners could take cognizance of an application for the revocation of a license on the ground of a violation of law by the licensee, while a criminal prosecution'was pending against the licensee for the same violation of the law.</p> <p>To abate a new suit on the ground of the pendency of another, both must be of the same character, between the same parties, and brought for the same purpose.</p>

<p>F died within a probate district in this state, leaving property to be administered upon, and a will there made attested by only two witnesses. The probate court granted administration on her estate, finding in the order that she was there domiciled and died intestate. Afterward the executors named in the will had it proved in a surrogate's court in the state of New York, (by the laws of which the will was valid,) upon a citation of all parties interested. An appeal was taken from this decree to the Supreme Court of that state, in which it was found that the testatrix was domiciled in tlie state of New York at the time of ber death and the decree of the surrogate’s court was affirmed. Held—</p> <p>1. That this judgment was conclusive upon all persons who were parties to the proceeding, as to the question of IPs domicil.</p> <p>2. That it was the duty of the probate court here, upon application of the executors, to admit the will to probate, for the purpose of ancillary administration.</p>

<p>The plaintiffs in their declaration alleged the loss of a cargo of grain by the sinking of a canal boat towed by the defendants, and alleged that the negligence of the defendants caused the loss. The defendants demurred, the demurrer was' overruled, and the case was heard in damages. On this hearing no evidence was offered by either party as to the negligence of the defendants or the absence of it. The court found the actual damage to be $5000, but awarded only nominal damages. This court reversed the judgment on the ground that the burden of proof with regard to negligence rested on the defendants, and that in the absence of all proof they were to be considered guilty of negligence. The case went back to the lower court, when the defendants moved to be allowed to plead the general issue and have the case tried again upon the facts. Held, that, the actual damage having been found and upon a trial in which no exception had been taken, the defendants were not entitled to plead anew and have a further hearing upon the facts, but that it was the duty of the lower court to render judgment against the defendants for the $5000.</p> <p>The finding as to the loss of the cargo was only that “while at P during the night the canal boat sank and the entire cargo was lost.” Held that, although this was not a finding that the loss was caused by the negligence of the defendants, yet that that fact was sufficiently established by the averment of the declaration that the loss occurred through their negligence, and the admission of the truth of this averment by the demurrer.</p> <p>The finding of the court below contained the following paragraph: “The plaintiffs offered no evidence to prove negligence on the part of the defendants, and so the court does not find the defendants guilty of negligence. The defendants offered no evidence.” Held not to be a finding that there was no negligence on the part of the defendants, but only a statement that nothing was found on the subject.</p>

<p>A declaration alleged that the plaintiff was owner of a tract of land (describing it,) with a stream of water running through it and a gristmill thereon, and that the defendant, by the wrongful erection and maintenance of a dam across the stream below, had obstructed the water so as “to cause it to flow back on said land and against the wheel of said mill, whereby the working of said mill was prevented and the plaintiff deprived of the use and profit of said mill.” The court below found that the water was set back over a part of the land, but not far enough to reach the wheel of the mill or affect its operation. Held that there could be no actual damages awarded for the flowing of. the land, none having been alleged.</p> <p>And that there could not be nominal damages awarded for the technical injury of overflowing the land below the mill, because the plaintiff had made his whole claim not only expressly but exclusively for damage to the mill.</p>

<p>Where A has a mortgage on two pieces of land and B acquires a later title to one of them, B can not redeem his piece by paying A a proportionate share of the mortgage debt, but must pay the whole, and standing on that mortgage foreclose the mortgagor’s interest in the other piece; the mortgage debt in that case being apportioned between himself as owner of tbe equity in one piece and the mortgagor as owning that in the other.</p> <p>And the same rule applies even though A, tbe mortgagee of the two pieces, has bimself acquired the equity of redemption in the other piece.</p> <p>Where however A, as mortgagee of the two pieces, ask for or consents to an apportionment, a court of equity will make it.</p> <p>And where A, having acquired the equity of redemption in the other piece, asks for a foreclosure only of the piece of which B holds the equity, he will be considered as assenting to an apportionment of the mortgage debt.</p> <p>The rule of apportionment in such cases is to apply the security to the debt according to its proimrtionate value. That is, as the value of the whole security is to the value of the particular part, so is the amount of the whole mortgage debt to the amount which is to be paid on redeeming that part.</p> <p>Where A holds a mortgage on two pieces of land and B a later mortgage on the second piece and also on a third piece, and the first and second pieces are more than enough to satisfy the first mortgage debt, but the second and third pieces, with the second encumbered, are insufficient to satisfy the second mortgage, it is a rule of equity that the first piece shall be first applied upon its mortgage debt, so as to leave as mueb as possible of the second piece for the benefit of B’s mortgage.</p> <p>This rule is one of easy application where, as in many of the states, the mortgaged property is sold by order of the court and the proceeds applied; but in this state, where the property itself is taken for the debt, the same principle is recognized.</p> <p>Where B holds a second mortgage of one piece of land, previously mortgaged with others to A, and also of other lands not covered by A’s mortgage, but complicated with still other lands by reason of other later mortgages of those lands to other parties, which later mortgages give the holders of them by reason of their inadequacy a standing in equity for asking to be allowed to redeem A’s mortgage, A is not bound, in seeking a foreclosure of his mortgage, to make these other mortgagees defendants.</p> <p>The right of these parties to redeem A’s mortgage would not appear of record and would depend entirely on the fact of their security being insufficient—a fact wholly extraneous, and of which A could not be supposed to have any knowledge. °</p> <p>Their duty, if they wished to get the benefit of the property mortgaged to A, would be to bring a suit for redemption, or at least to give notice to A tbat they claimed a right to redeem.</p> <p>Their right to go into a court of equity anci obtain a decree for redemption, would not be of itself an existing and recognized equity, but would be a mere equitable relation to the property, and their equity would be established by and depend upon the decree of the court.</p> <p>And the equity thus decreed would take effect subject to all rights existing at the time the suit was brought.</p> <p>Where a mortgagee has foreclosed a mortgage and his title has become absolute, the fact that the value of the mortgaged property is greater than the mortgage debt, constitutes no ground of equitable claim on the part of persons interested who were made parties to the suit.</p> <p>And a party who, if he had gone seasonably into a court of equity could have had a right of redemption decreed in his favor, but who failed to do so, and neglected to give notice to the mortgagee of his claim of a right to redeem, and who had therefore at the time of the foreclosure no such known relation to the property as made it the duty of the mortgagee to make him a party, is not entitled to equitable aid on the ground of such excess of value.</p>

Suit on a bond given by the defendants for property attached; brought to the Court of Common Pleas and tried, on a general denial, before Torrance, J. The following facts were found by the court:— On or about February 10th, 1881, the defendant Cummins applied to the defendant Bryan for assistance in money to enable him to start in business.

Civil action to recover possession of real estate, with rents and profits; brought to the City Court of the city of New Haven, and tried to the jury on the general issue before Sheldon, J. Verdict for the plaintiff, and appeal to this court by the defendant. The case is sufficiently stated in the opinion.

<p>The plaintiffs, husband and wife, sixty years old, drove in a top phaeton along a street that crossed a railroad track in the city of M, driving a dull horse. It was the early evening, when it was growing dark, and was the regular time for a train to leave the station, which was a short distance above this crossing, and to pass over the track at this place. They had lived for thirty years in M and were familiar with the locality. As they approached the crossing they heard the train arriving at the station, and the wife asked the husband, who was driving, to look out for the cars, and the engine with its headlight could easily have been seen if they had leaned forward and looked. Before they got upon the track the bell rang for tbe gates to be closed, and tbe gateman on tbe other side immediately began to swing his gate. The husband tried to stop the horse but was not able to do so, and the other gate, which was swung immediately after, caught in a wheel of the carriage as he was trying to drive through. The wife being alarmed jumped out and was hurt. The engineer did not start his engine until the carriage had got safely across, and if the wife had remained in the carriage she would not have been hurt. Held that the railroad company was not liable for the injury received by the wife. (Two judges dissenting.)</p> <p>The plaintiffs were guilty of want of ordinary care 'in attempting to drive across when they knew, or could have seen by looking, that a train was about to pass.</p> <p>If the husband alone was guilty of actual negligence, his negligence would be imputed to the wife.</p> <p>It made no difference that it was a highway, which was open to all the public. It was also the defendants’ track, over which they had an equal right to pass with their trains.</p> <p>It was the duty of the gatemen to close the gates immediately upon the signal being given. It was the duty of the plaintiffs to stop their horse before they got upon the track, and the gatemen had a right to presume that they would do so.</p> <p>Nor was the engineer guilty of negligence. He gave the signal before the plaintiffs were on the track and did not start his train until they were out of the way.</p>

Assumpsit against an insurance company on its contract to pay the loss upon a policy of fire insurance, to the plaintiffs ; brought to the Superior Court. Demurrer by the defendants, and reservation upon the pleadings for the advice of this court. The case is sufficiently stated in the opinion. The case was argued at a former term by P. Sides, in support of the demurrer, and O. S. Platt and J. P. Platt contra.

Suit for the settlement of the construction of a will; brought to the Superior Court. The plaintiff was a trustee under the will.

<p>Under the statute (Gen. Statutes, p. 522, sec. 60,) which forbids the keeping open on Sunday of any place in which it is reputed that intoxicating liquors are kept for sale, an entire hotel may come within the statute as having such a reputation, although liquor may not have been sold in every room in it.</p> <p>Whether the reputation applies to the whole hotel or to a certain part of it is wholly a question of fact for the jury.</p> <p>If it applies to the whole house, the occupant may yet keep it open on Sundays for the admission of hoarders and travelers.</p>

<p>Under the statute (Gen. Statutes, p. 520, sec. 43), which makes it an' offense to keep a place in which it is reputed, that intoxicating liquors are kept for sale, such reputation is not conclusive evidence of the guilt of the accused, but he may show by proper evidence that he did not in fact keep liquors for sale, and that the reputation is not well founded.</p> <p>The statute in one section forbids the keeping of intoxicating liquors for sale, and in another the keeping a place in which it is reputed that intoxicating liquors are kept for sale. These two offenses are so far distinct that an acquittal of the former is not a bar to a conviction of the latter, although the times at which the offenses are charged to have been committed are the same.</p> <p>In a prosecution for the former offense the whole burden of proof is on the state, while in one for the latter the burden of proof, after reputation is shown, is shifted upon the accused. An acquittal in the former case may result from an insufficiency of proof on the part of the state, while upon the same facts a conviction in the latter case may result from an insufficiency of proof on the part of the accused.</p> <p>Where the accused had kept the same place continuously for a year, and was charged with keeping a place in which it was reputed that intoxicating liquors were kept for sale on a certain day, it was held that evidence was admissible that liquors were actually kept by him exposed for sale at a time three months later, but within his continued occupancy of the place.</p> <p>Such evidence would be of constantly diminishing weight with the lapse of time, but would be admissible, under instructions of the court as to the considerations affecting its weight.</p> <p>It being a question of the intent with which the liquors were kept, and intent being generally a matter of continuance, the existence of the intent at the former time might be inferred, more or less strongly, from its existence later.</p>

<p>A policy of insurance upon a dwelling-house contained a provision that “ if the dwelling-house hereby insured shall cease to be occupied'as such, then this policy shall cease and be of no more effect.” The house was described in the application as occupied by a tenant, and was so occupied at the time of the insurance. The tenant left the house, tailing with him all his furniture, about six o’clock on a certain evening, and the house was destroyed by fire about two o’clock the next morning. Held that the non-occupation avoided the policy.</p> <p>The policy provided that all statements in the application should be “taken to be warranties on the part of the assured.” The application contained the following questions and answers: “Q. How many acres of land in the place?” Ans. “Sixty.” Q. “What is the value of the land and buildings?” Ans. “Seventeen hundred dollars.” Held, that the parties had made these matters material and that they must be so regarded whether they related to the risk or not; and that if the answers were not true in the sense in which they were taken by the parties, there could be no recovery.</p>

<p>A master is bound to provide for bis servant a reasonably safe place for his work and reasonably safe appliances.</p> <p>Where, instead of attending personally to it he employs another, who does it negligently, so that the servant receives an injury by reason of the negligence, the master is equally liable.</p> <p>The general rule that a servant can not recover for an injury caused by the negligence of a fellow-servant has no application to such a case.</p> <p>While it is the duty of a servant to use ordinary care in noticing the condition of machinery at which he is working, yet he can not be expected to notice latent defects or any that are not obvious to one not an expert in machinery.</p> <p>If a servant has been guilty of negligence in such a matter, yet it must be negligence essentially contributing to the injury.</p> <p>A manufacturing corporation employed a superintendent who had charge of all its machinery and works in several mills. Under him and appointed by him were overseers of the several rooms, whose duty it was to keep watch of the machinery and oversee the work in their respective rooms. These overseers appointed second-hands whose duty it was to act as overseers of the rooms in their absence. There was also an oyerseer of repairs, whose duty it was to make repairs on notice from the superintendent or overseer of a room that repairs were needed. Some new machinery having been procured the person setting it up notified the superintendent that collars were needed on certain countershafts before they were used, and the superintendent notified the overseer of repairs to put them on, but through negligence he failed to do so, and by reason of the want of a collar a countershaft fell and injured the plaintiff, an employee in the room. Held that the negligence was that of the corporation and that it was liable for the injury.</p> <p>And held to make no difference that the plaintiff was not using the machine as an operative at the time of the injury, but was assisting the overseer of the room by his direction in setting up the countershaft preparatory to its being used by the operatives.</p>

<p>A town lias no power to agree, for a valuable consideration, to discontinue a highway. The mode of discontinuing highways is fixed by statute, with a provision for an appeal by any party aggrieved, and a town cannot, at its mere pleasure, discontinue them.</p> <p>And a town cannot .enforce a promise of the other party of which its own' promise to destroy a public right was the consideration.</p>

<p>The plaintiff was a niece of T., who was a widower seventy years of age, and without children, and with a large estate, and had at his request and on his promise to compensate her amply, gone to live with and take care of him. After she had lived with him five years he spoke of intending to make his will and give her a bequest, which he explained, arid asked her if she would he satisfied with it. She replied that she would. He soon after informed her that he had made the will. He did in fact make the will, which was the one left by him at his death five years later, and a part of the bequest to her was ten shares of the stock of the .¿Etna Life Insurance Company, which was all that he owned. At the time he spoke to her about the bequest, he said that he should do more for her from time to time. About a year later he handed her the certificate for the ten shares, saying “I give this to you.” She took it and put it in a drawer with her valuable papers. A few months later, the insurance company having issued to him as the owner of the ten shares, forty shares of new stock created out of its surplus, he delivered the certificate to the plaintiff, saying to her, “ This insurance stock of yours is good stock; they give forty shares for ten; it is only a change of form, that is all; I paid nothing for it.” She took the certificate and placed it with the other. The court found that he intended to vest in her the ownership of the forty shares as well as of the original ten, and that both parties supposed them to have become her property. She continued to serve him faithfully, till his death at the age of eighty-one. Held, that an equitable title to both the ten shares and the forty vested in the plaintiff.</p> <p>And held that the transaction was not to be regarded as a testamentary gift, and so needing to be in writing, as T’s promise “ to do more for her from time to time, showed that what more he intended to do was to be done in his life-time.</p> <p>Also that the transaction was not invalid under the statute of frauds, because not in writing. The delivery of the certificates was a symbolical delivery of the stock, whereby the contract became executed.</p> <p>And the case resting on equitable ground, a court of equity would not allow the plaintiff to be wronged by the interposition of the statute against her.</p> <p>And held not to affect the ease that the charter and by-laws of the insurance company provide that transfers of stock shall be made only at the office of the company, by the shareholder or his attorney, on surrender of the certificate. This provision relates only to the legal title to the stock.</p> <p>In an equitable assignment the assignor, retaining the legal title, becomes a trustee for the assignee.</p> <p>And held not to affect the case that the will gave the plaintiff a legacy, which included the ten original shares of stock, and which was to be in lieu of all claims on the testator’s estate, and that she had accepted the legacy. The stock was given her by the testator before his death, and therefore at his death constituted no part of his estate, and her right to the forty shares constituted therefore no claim on his estate. She was simply taking what was already her own.</p> <p>An equitable remedy that existed against a party in his life-time, exists equally against his legal representatives after his death.</p>

<p>Suit to foreclose a judgment lien; brought to the Superior Court in Tolland County. The facts were found by the court - and the case reserved for advice. The case is fully stated in the opinion.</p>

<p>The statute (Gen. Statutes, p. 232, sec. 10,) provides that any person, injured in person or property by means of a defective road or bridge, may recover damages from the party bound to keep it in repair; but that no action Shall he maintained “ unless written notice of such injury, and of the time and place of its occurrence, shall within sixty days thereafter be given.” A notice was given to the selectmen of the defendant town as follows: “Tou are hereby notified that O. T. of the town of 23. was injured in his person and property by reason of a defective highway and want of railing on its sides, located in said town of W., and that this injury occurred on the 11th of September, 1879, on this highway, leading from the Bast Street Park, so called, in W., past the old G. H. place to N., and near the house of P. M. in said W.” Held to be sufficient both as to the place where the injury was received, and as to the character of the injury.</p>

<p>A testator gave certain property to a trustee, for the use of his widow during her life, and after her death “the income to be devoted to the education of the freedmen, and paid over annually to the proper officers of the Freedmen’s Association for that purpose by the trustee.” The term “freedmen ” was one generally applied to the lately emancipated slaves and their descendants. There were numerous organizations which had for their object the education of these people, but no one which bore the name of Freedmen’s Association. Held—</p> <p>1. That evidence that the testator told the scrivener who drew the will that he wanted to give the income of the property in trust for the.education of the freedmen, and that there was a freedmen’s association organized by the Methodist church people in Cincinnati, and that he wanted it payable to the officers of that association, was inadmissible. -</p> <p>2. That the trustee could not appropriate the income for the education of the freedmen as a class.</p> <p>The power given the trustee was merely to pay the income to the proper officers of the Freedmen’s Association. The court could not prescribe an additional duty without mating an addition to the will.</p> <p>Besides, the freedmen were several millions in number, and no power was given to the trustee, or to any one, to select .the individuals who should receive the benefit. Every individual would therefore have a right to share in the bountj', and it would be impossible to administer the trust.</p> <p>If a charity does not fix itself on a particular object, but is general and indefinite, and no plan is prescribed and no discretion given in the will for the selection of the beneficiaries, it does not admit of judicial admin- • istration.</p> <p>Under the rule which admits parol evidence in cases of ambiguity, to aid in the construction of a will, it is necessary that the words of the will should describe accurately the subject or object of the gift, and that the parol evidence should go only to show which of certain properly described subjects or objects was intended.</p> <p>Another item in the same will was as follows: “I give to my executor all my real estate, to be sold, and the proceeds held in trust for the education of the freedmen, and the income to be paid by him to the proper officers of the Freedmen’s Association, or disposed of as he pleases.” Held—</p> <p>1. That the trust adhered to the proceeds in the hands of the executor, even though the trust failed as to the Freedmen’s Association.</p> <p>2. That it became then a gift upon trust, with no provision as to who should take the benefit of it, and therefore could not be carried out.</p> <p>3. That the fund became intestate estate, and that the executor took nothing personally.</p>

<p>Suit for a foreclosure; brought to the District Court of Litchfield County. Facts found by a committee and judgment rendered by the court (Warner, J.,') for the plaintiff. Appeal to this court by the defendant. The ease is sufficiently stated in the opinion.</p>

<p>A plaintiff wlio has paid costs on an amendment of his declaration, and who finally recovers judgment, can recover no costs for the period during which he paid costs.</p> <p>And this rule includes court and clerk fees paid by him as well as other costs.</p>

<p>The acts of 1866 and 1868, (Session Laws of 1866, chap. 59, and of 1868, chap. 36,) provide for a state bounty to children of soldiers from this state who lost their lives in the late civil war, such bounty to be paid by the state treasurer to the treasurers of the several towns, and by them distributed. Held, that the town treasurers were made the agents of the state in the matter, and that they personally, and not the towns, were liable to any person for whom money had thus been received and not paid over.</p>

<p>Where an officer, receiving for service an execution in a foreign attachment suit, neglects to make personal demand on the garnishee within sixty-days after the rendition of the judgment, the cause of action against him for the default accrues at the expiration of the sixty days, and not upon the rendering of judgment against the plaintiff in a scire facias after-wards brought against the garnishee:</p>

Action on the case for an injury sustained by the plaintiff through the defective condition of a sidewalk of the defendant city; brought to the Superior Court in Hartford County. The following facts were found by the court: On February 12th, 1877, and for a long time prior' thereto, Farmington Avenue was and had been a highway, within the limits of the city of Hartford, which the city was legally bound to keep in repair.

CrvTL action to recover for services as a fireman ; brought originally before a justice of the peace, and, by appeal of the defendant, to the Court of Common Pleas of Hartford County. Facts found in that court, and ease reserved for advice. The case is fully stated in the opinion.

Civil action, upon a complaint containing the common' counts for money lent, money paid and expended for the defendants, and money had and received by them to the use-of the plaintiff; brought to the Court of Common Pleas of Hartford County and tried to the court before Bennett,' acting judge. Facts found and judgment rendered for the: plaintiff. Appeal to this court by the defendants. The case is sufficiently stated in the opinion.

1 Assumpsit on a policy of fire insurance ; brought to the City Court of the city of Hartford, and, by appeal of the ;défendants, to the Superior Court for Hartford County, and 'in that court tried to the jury before Beardsley, J. The plaintiff’s evidence being in, the defendants moved for a nonsuit, which the court granted.

Action to recover for supplies furnished a pauper; brought to the Court of Common Pleas of Hartford County, and reserved, on facts found, for the advice of this court. The complaint contained three counts, die third of which alone related to the pauper in question—no question being made as to the others. The case is sufficiently stated in the opinion.

<p>The act of 1877 (Session Laws, ch. 47,) provides that shares of the stock of insurance and various other corporations, owned by a resident of this state, shall be set in his tax list at their market value; but that if any portion of the capital is invested in real estate on which the company is assessed and pays a tax, the assessed value of such real estate shall be deducted from the market value of the stock. Held, that the assessed value of real estate owned by the company outside of this state, on, which it paid a tax in the state where situated, was to he deducted as well as that of real estate in this state.</p> <p>And held that no deduction was to be made for United States non-taxable bonds held by the company.</p> <p>The sum to be deducted, upon each share of the stock, in the tax list of a shareholder, should bear the same proportion to the market value that the entire investment in taxable real estate bears to the entire surplus of assets above liabilities.</p>

<p>Tbe revocation of a former will by tbe mere execution of a later one, is ambulatory, and does not take effect till tbe second will becomes operative by tbe death of tbe testator.</p> <p>And tbe revocation of tbe second will will revive tbe former.</p> <p>How it would be where the second will in express terms revokes the former: Queere. Tbe weight of authority is in favor of tbe doctrine that tbe revoking clause does not take effect till tbe will becomes operative by the -.death of tbe testator.</p> <p>The question is materially affected by tbe statute of 1821 with regard to tbe revocation of wills, which was passed since tbe decision of this court in James v. Marvin, 3 Conn., 5Í6.</p> <p>That statute has been somewhat changed in- its phraseology, in tbe later .revisions, but without essentially changing its meaning.</p>

<p>To discharge a surety hy giving time to the principal, the creditor must have put it out of his power for the time to proceed against the principal.</p> <p>A note of $8,000, which was indorsed by JB for the accommodation of the maker, with waiver of notice, fell due and was not paid. The maker soon after paid $4,000, and gave bis note on demand for $4,000, payable to tbe order of tbe bolder of bbe original note, with interest payable semiannually, and secured it by a mortgage, tbe indorser having no knowledge of tbe transaction. Tbis note and mortgage tbe bolder accepted as additional security for tbe balance of tbe original note. Held not to discharge tbe indorser.</p> <p>Tbe facts that tbe collateral note was secured by a mortgage, and that it was on interest payable semi-annually, did not affect tbe case. There .still existed tbe right to sue at any time on tbe original note.</p> <p>Where an indorsement is made with “notice of protest waived,” it is a waiver of notice of non-payment.</p> <p>Tbe statute of limitations bars a suit upon a promissory note unless brought within six years. Another statute requires that a suit be brought by a creditor of a solvent estate within four months after a refusal of payment by the executor or administrator. A note was presented to tbe executors of a deceased person, the estate being solvenf, within six months limited by tbe probate court for the presentation of claims, and on refusal of payment by the executors suit was brought against them upon it within four months after such refusal. At this time more than six years had elapsed since the right of action first accrued. Held that the suit was not barred.</p>

Civil action to recover for board furnished the defendant, a minor; brought to the Court of Common Pleas of Hartford County, and tried to the court before jBennett, J. Facts found and judgment rendered for the plaintiff, and appeal to this court by the defendant. The case is sufficiently stated in the opinion.

<p>A testator, leaving a large estate and no children, gave to a sister all the income of the property during her life, and after her death an annuity of $1,400 a year with the use of his dwelling house to a niece, and after some further small bequests the residue of his estate for the establishment of a school. By a codicil made later on the same day that the will was made, he gave to S for her life $350 a year. Held, that this annuity began to run from the death of the testator, and not from the death of the sister to whom he had given the whole income for life.</p> <p>Held also, that the deferred payments would draw interest.</p> <p>And held that, in a suit brought by S against the trustees, in which the plaintiff asked for a judgment giving a construction to the will, and for a recovery of the amount due to her under it, the expenses of the litigation were not to be taken out of the estate, but only ordinary costs taxed.</p>

<p>The act of 1879, (Session Laws; 1879, ch. 44,) provides that “any person » who shall ravish and carnally know any female of the age of ten years or more against her will and consent, or who shall carnally know and abuse any female child under the age of ten years, shall be imprisoned in the state prison, &e.” Held, that in an indictment charging a rape, it is not necessary that it be alleged that the person on whom it was committed was of ten or more years of age.</p> <p>And that it is sufficient to allege that it was “ against,her will,” that allegation being equivalent to “ against her will and consent.</p>

Civil action on a bond given to the state for the faithful discharge bj the defendant Wright of his duties as county commissioner;' brought to the Superior Court. Cross-complaint filed by the defendant Mead, surety on the bond. Demurrer ‘to cross-complaint by plaintiff. Demurrer sustained, and cross-complaint dismissed. Facts found and judgment rendered by the court (Beardsley, J.,~) for the plaintiff. Appeal to this court by the defendant Mead.

<p>Where a verdict is for excessive damages, and it clearly appears that the jury must have been governed by prejudice or partiality or by a grossly mistaken view of the case, it is the duty of the court to grant a new trial.</p> <p>Where in an action for slander in the defendant’s stating that the plaintiff burned his barns, the jury returned a verdict for §6,733.37, and on being sent out by the judge for a reconsideration of the damages, returned another verdict for $4,000, and it appearéd that the declarations were made by the defendant in the honest belief that they were true, that the Are was incendiary, and that the plaintiff had borne and expressed malice against the defendant, and that no one else upon full investigation was suspected, and that the plaintiff had sustained little injury from the declarations; it was held that a new trial should be granted on the ground of excessive damages.</p> <p>The practice of jurors marking severally a sum for the damages in a case, and dividing the aggregate amount by twelve, and taking the result for the amount of the damages in their verdict, is a reprehensible one.</p>

<p>Where the collectibility of anote is guaranteed it is necessary for the holder to use due diligence for its collection from the maker when it falls due. But if sufficient personal property of the maker can not he found, he is not hound to attach real estate.</p>

Suit for the laying out of a highway; brought to the Superior Court. The committee reported in favor of laying out the way; the defendant town and sundry land-owners remonstrated against the acceptance of the report; the court QSanford, J.,~) overruled the remonstrances, accepted the report, and passed a decree laying out the way. Appeal by the defendants. The case is fully stated in the opinion.

<p>The defendant, a manufacturing corporation, made its note for $40,000, payable to its own order, and the plaintiffs, with three others, all directors of the company, guaranteed its payment; the company making a mortgage to the guarantors of nearly all its property as security for their liability. The object was to raise money to pay the floating indebtedness of the company and enable it to go on with its business. Held that the directors had power to borrow money for this purpose and to give necessary security; and that the mortgage was therefore valid, although it conveyed all or nearly all the property of the company.</p> <p>And that it did not alter the case that the directors themselves were the guarantors for whose security the mortgage was taken.</p> <p>The company, having received the money borrowed and used it in paying its debts, would seem not to be in a position to claim that the mortgage was invalid.</p> <p>A savings bank, which was the holder of the guaranteed note, requiring payment of the guarantors, they paid $20,000 in cash and gave a note for the balance, leaving the original $40,000 note as collateral security for the new note. Held that the question whether the transaction was a payment of the original note or a purchase of it, was one of fact, and therefore not properly a question for this court; but that, upon a reasonable interpretation of the finding, it was to be regarded as a payment by the guarantors as such.</p> <p>And held that, if the guarantors paid the note as such, they were not to be regarded as having paid when they were discharged from their liability by reason of the holder not having used due diligence to collect the note of the maker. The company, being itself the maker, could not make this objection. The rule being one for the protection of the guarantors, they could waive the benefit of it.</p> <p>The note being payable to the company’s own order, and endorsed in blank by the company for the purpose of raising money upon it, the guarantee was to be regarded as intended for any holder of the note, and, at least in equity, followed the note into the hands of every holder.</p> <p>The delivery of an endorsed note as collateral security does not divest the party delivering it of his equitable interest in the note, and he may properly bring a suit for the foreclosure of a mortgage given to secure it. A court of equity would not dismiss such a suit, but would require the party holding the note to be brought in as a party before passing a decree.</p> <p>And where, during the pendency of a suit so brought, the note was returned to the plaintiff, there was no longer any reason for making the former holder of it a party.</p>