Volume 52 — Connecticut Reports

Action for breach of contract; brought, by appeal from a justice of the peace, to the Superior Court in Windham County, and tried to the court before Stoddard, J. Facts found, and judgment rendered for the .plaintiff, and appeal by the defendant. The case is sufficiently stated in the opinion.

<p>The act of 1881 (Session Laws of 1881, p. 104, sec. 12,) provides that the Superior Court, on the application of the oyster-ground committee of any town in. the county, shall appoint a committee of three persons to ascertain and locate all the natural oyster-beds within the limits of the town, who shall give notice of their meeting, hear the parties who appear before them, and take evidence from other sources in their discretion, and make report to the court, which report, when accepted by the court and recorded in its records, shall be a final and conclusive determination of the location and extent of such natural beds. A committee so appointed made its report and the court rejected it, and the appellants appealed to this court. Held, on a motion to strike the appeal from the docket, that the rejection of the report was to be regarded as a final judgment, and that the court would entertain the appeal.</p> <p>The court had power to set aside the report if the committee had exceeded its jurisdiction or had conducted its proceedings in an unfair or improper manner. The power to accept the report by implication gives the power to reject it.</p> <p>The committee is not authorized under the act to designate, as natural oyster-beds, oyster grounds that had previously been designated to individuals under the provisions of previous statutes.</p> <p>Any person whose claim to the ownership of oyster grounds would be affected by the report of such a committee, would have the right to appear and remonstrate against the acceptance of the report.</p> <p>It is not necessary that the committee should designate natural oyster, clam and mussel beds separately.</p>

<p>A landlord entitled by law to the possession of leased premises, has no right to enter peaceably in the temporary absence of the tenant, and afterwards hold possession by force.</p> <p>A jury may not consider a plaintiff’s expenses beyond his taxable costs in awarding damages, unless the case be one that involves positive culpability on the part of the defendant and makes it a proper one for exemplary damages.</p>

<p>A judgment of non-suit was rendered in a suit in which real estate had been attached, and was afterwards set aside at the same term. Held, that the attachment was not vacated.</p> <p>An attachment of real estate creates a lien only for the amount to which the officer is directed by the writ to attach, although the judgment may be for a larger amount by reason of costs or of an increase of the demand.</p>

<p>The x>laintiff brought a suit to recover possession of certain land, of which he claimed to have been dispossessed by the defendant about three years before. After his ouster the plaintiff executed a deed of the premises to B, but by reason of the adverse possession of the defendant no title passed. The deed was given and received for the sole purpose of enabling B to dispossess the defendant. Soon after this the defendant brought an action of trespass against B for taking and carrying away a quantity of hay, which B justified on the ground that it was hay cut on the land in question, the title to which was in him. The court, however, rendered judgment for the present defendant. The latter, in the present suit, offered in evidence that judgment as an estoppel upon the present plaintiff. Held that the title to the demanded premises was not in issue in that suit.</p> <p>The court below found, as to the plaintiff’s title, that the only use to which the strip of land had been subjected was the occasional trimming and cutting of its trees and brush and the annual cutting and removal of the grass, seaweed and sedge growing on it, and the landing, repairing and storing of the fishing and other boats of the plaintiff and of those under whom he claimed title; and that the plaintiff and those under whom he claimed had been in the adverse and uninterrupted use and possession of the premises for the purposes aforesaid, more than fifteen years before the ouster by the defendant. The court having rendered judgment for the plaintiff, it was held, on the defendant’s appeal, that this court could not, as matter of law, say that such possession and use were not such as to practically exclude the owner, and therefore could not say that the conclusion of the court below was legally erroneous.</p>

Action for entering upon land occupied by the plaintiff and removing a fence; brought by appeal from a justice of the peace to the Court of Common Pleas, and tried to the jury before Sail, J. On the trial the plaintiff offered evidence to prove that, on the 16th of October, 1882, as tenant of.Ebenezer and Hannah-Hill, he was in occupation of the premises described in the complaint, and consisting of a dwelling-house and yard connected therewith; and that on that day the…

<p>In an action for the malicious prosecution of a civil suit, want of probable, cause is an essential fact to be alleged and. proved.</p> <p>But under the Practice Act, which requires only a statement of the facts in narrative form, if proof of the facts alleged would necessarily establish want of probable cause, it is sufficient.</p> <p>It Is also necessary that it should appear that the vexatious suit has been, terminated. But where that fact is not alleged in the complaint, it is enough if it is supplied by the pleadings of the defendant.</p> <p>This rule, known to the common 'law as that of express aider, is in furtherance of simplicity of practice and may be applied under the Practice Act.</p> <p>If the suit was terminated by the defendant’s own act, it is enough, even though no judgment was rendered.</p> <p>But such a defect is cured by verdict.</p> <p>The operation of verdicts in curing defects not demurred to, ought to be extended rather than restricted.</p> <p>Whether, under the Practice Act, secs. 1, 2, such defects ought not in all cases to be taken advantage of, if at all, by demurrer: Qacere.</p>

<p>Tlie charter of the city of Bridgeport gives the common council power to lay out streets and provides for a notice to and hearing of all parties interested in any proposed lay-out. It then provides that if, after such a hearing, the council shall resolve to lay out the street, it shall appoint a committee, whose duty it shall be to make such lay-out and report their doings to the council, with a survey and particular description of the street laid out. Held that a standing committee on streets and sidewalks was not a proper committee to refer such a matter to under this provision of the charter.</p> <p>The standing committee, to whom a petition for the widening of a street was referred immediately on its being presented and without any hearing on the part of the council, reported that they advised that the council order the widening of the street in accordance with a survey accompanying the report, and the council so ordered. Held that, even if the committee had been the proper one, the proceeding was not in accordance with the requirements of the charter, and that an assessment of benefits founded upon it was void.</p>

<p>The statute (Gen. Statutes, p. 135, sec. 5,) provides that when it is proposed to form, alter, unite or dissolve any school district or districts, notice that such change is proposed shall he posted on the school-house in each district to he affected, and a copy of the same left with the clerk of each district at least fifteen days before the town is called upon to act upon the proposition. Held that the notice need not be signed by the selectmen, hut that one signed by one member of the district in behalf of himself and other petitioners was sufficient.</p> <p>The third section of the statute provides that the name, number and limits of every school district shall be entered on its records and on those of the town. Held that if the proper officer failed to make such record he could be compelled to do it by a writ of mandamus, but that the omission of it did not affect the legal existence of the district.</p> <p>The first meeting of a new district, by reason of a defective warning, was illegal. The legislature passed a validating act. Held to make not only the first meeting legal, but all the subsequent proceedings of the district so far as affected by the illegality of the first meeting.</p> <p>A right to a technical defence involving no substantial equities, is not a vested right beyond the reach of the legislature.</p> <p>The validating act provided that it should not affect any suit then pending. The school district had a suit then pending, which they afterwards withdrew and began another for the same cause of action. Held that the latter suit was not within the exclusion of the statute.</p> <p>A meeting of a district was held on a certain Saturday, and was adjourned “to Wednesday evening at 8 o’clock.” Held that the natural and obvious meaning was, to the next Wednesday evening, and that the meeting which was holden on that evening was not rendered illegal by uncertainty of the time to which the adjournment was made.</p> <p>In a suit brought by a school district the defendants set up a want of legal corporate existence in the district. Held that upon this question an inquiry whether a certain portion of the boundary of the district had been legally established was not a pertinent one.</p>

Action for trespass to land; brought, by appeal from a justice of the peace, to the Court of Common Pleas, and tried in that court -to the jury before Sail, J. Verdict for the plaintiff and appeal by the defendant. The case is sufficiently stated in the opinion.

<p>la civil cases the verdict of the jury should be determined by the mere preponderance of evidence, even though the conclusion, imputes to the defendant the guilt of a felony.</p> <p>In a civil suit for the burning of the plaintiff’s bams the judge instructed the jury that if, after giving the defendant the benefit of the presumption in his favor, they fairly and honestly believed that it was more likely to be true that the defendant set fire to the plaintiff’s barns than that he did not, they ought to render a verdict for the plaintiff, and if they did not so believe, then, for the defendant. Held, on the defendant’s appeal, to be no error.</p> <p>The language used was equivalent to that generally used and approved in such cases, that the jury ought to find for the plaintiff if the “preponderance of evidence ” is in his favor.</p> <p>The plaintiff testified as a witness and on cross-examination admitted in the fullest manner his feelings of hostility to the defendant. Later in ' the cross-examination the defendant’s counsel asked him if he had not made a certain remark showing hostility to the defendant, which inquiry the court ruled out. Held that, the hostility being fully admitted, the defendant was not harmed by the exclusion of the inquiry, even if it was in its nature admissible.</p> <p>It seems that such an inquiry would have been inadmissible unless the witness had denied the unfriendly feeling or had pretended that it was slight.</p>

<p>The twelfth section of the act of 1881 (Session Laws of 1881, ch. 160,) provides that, upon the application of the oyster ground committee of any town, the Superior Court may appoint a committee to ascertain and locate all the natural oyster beds within the boundaries of such town. Held, not to include any portion of Long Island Sound lying south of a coast line established by the act, but that all the area between that line and the south line of the state falls within the exclusive jurisdiction of the State Commissioners of Shell Fisheries.</p>

<p>It is the duty of an attorney at law, who has collected money for a client,to pay it over to him on demand, and it is very generally held that he is bound, on receiving the money, to notify his client of the fact, and that if he does not he is liable in tort for such negligence.</p> <p>Where an attorney has converted such money to his own use he is liable for the wrongful act in an action framed in tort, and it makes no dif-. ference that an action on the implied contract could have been maintained, nor that he had made an express contract to pay over the money.-</p> <p>Where a complaint under the Practice Act charged that the defendant, and a firm of which he was a member, acting as attorneys, collected certain sums for the plaintiffs, which were fraudulently appropriated by the defendant and never paid or accounted for to the plaintiffs, although a reasonable time had elapsed, it was held that the complaint stated every essential fact to charge the defendant in tort.</p> <p>And held not necessary that the defendant’s partner should have been joined as a defendant.</p>

<p>In equity the capital stock of a corporation is regarded as a trust fund for the payment of its debts, and courts will be astute to detect and defeat any device which is calculated to withdraw this fund or place it beyond the reach of creditors.</p> <p>This principle is especially applicable to corporations clothed with trust powers.</p> <p>A corporation may not therefore, unless in some special cases, buy in its own stock and pay for it from its capital.</p> <p>As a rule to which there are few, if any, exceptions, a stockholder who conveys his stock to the corporation and receives in return a portion of its capital, holds the money so received subject to the superior equities of creditors.</p> <p>Every stockholder is presumed to know the provisions of the charter of the company, and of the statutes relating to corporations, and the general principles of law governing them.</p> <p>The liability of the stockholder in such a case is not dependent upon the existence of a conspiracy to defraud, or of any fraudulent intent on his part.</p> <p>Where a corporation, the capital of which was impaired, was buying in its own stock through an agent, who did not disclose to the sellers the party for whom he was buying, but where the sales were in fact to the corporation, it was held that this arrangement did not protect the sellers, since they had in fact received money from the capital of the corporation, and were not only bound to make inquiry, but were chargeable with the knowledge of the agent, who became their agent for the purpose of the sale.</p> <p>And especially would it not protect stockholders who were trustees of the corporation and members of its executive committee.</p> <p>A, a stockholder, made B, who was the agent of the company for buying in its stock, his attorney to transfer the stock as he supposed to L. L failed to purchase, and B transferred it to the company and paid for it from its funds, without the actual knowledge of A. Held that A was liable to the receivers for the money paid him.</p> <p>G was employed by the president and treasurer of the company to buy in the stock for the company. He bought certain shares of L, apparently for himself, and paid for them with his own money, directing L to go with the certificate to B, the company’s agent, who he supposed would, as attorney, transfer the stock to the company. B however, to conceal the real purchaser, made the transfer to G and had G afterwards transfer it to the company, and placed the money for it to G’s credit. Held that L was not liable, as he had received no money from the company, but that G was liable for the money received by him.</p> <p>Kwas employed by the company to buy in its stock. He bought sundry shares of W in his own name, which were paid for by B, the company’s agent, with funds of the company. The stock was transferred to IT, and a few days after by him to the company. K at the time was a member of the company and a trustee. Held that he became in law and fact the holder of the shares and the seller of them to the company with full knowledge of the facts, and that he was chargeable and that W was not.</p> <p>The executors of a deceased stockholder sold his stock to the company and received payment from the company. The executors afterwards resigned, and administrators de bonis non were appointed in their place. Held that the administrators were bound to refund from the estate the money so received.</p> <p>A married woman through her husband sold her stock to the company, and received payment therefor from the company. Held that she stood upon the same footing with her husband, who had knowledge of all the facts.</p> <p>The insolvent corporation had gone into the hands of receivers. Held that a suit to recover the moneys received by the stockholders from the company for stock sold to it, was properly brought by the receivers.</p> <p>It was no objection to a suit in equity by the receivers for the recovery of the money, that the creditors had a remedy at law. Equity takes cognizance of all trusts, and a court of equity is the proper tribunal to enforce the rights of the beneficiaries under them. -</p>

<p>A, in September, 1874, brought suit against .sundry defendants, of whom B was one. In June, 1874, B had been adjudged a bankrupt and in April, 1876, received his discharge. A filed his claim against B in the bankrupt proceedings, and at the time agreed that he would not take judgment against B in his suit. B did not plead his discharge nor in any manner bring the matter to the attention of the court. The suit was continued in court till 1878, when A got judgment against all the defendants, which judgment was afterwards paid in full by the 8. Co., one of the defendants. In a suit brought by B against the S. Co. and A, praying that the judgment in that suit might be amended by striking out his name, and that the S. Co. be enjoined against prosecuting a suit brought against him for a contribution toward the amount paid by them, it was held—</p> <p>1. That it was the duty of B to have pleaded his discharge in A’s suit, and that, not having done so, the judgment against him was a legal one.</p> <p>2. That after judgment had been rendered, B should have sought redress by an injunction against the enforcement of it by A against him ; and that in not seasonably seeking this relief he had slept upon his rights.</p> <p>3. That however A’s rights might be affected by his agreement not to take judgment against B, yet that the S. Co., who had no knowledge of it, could not be affected by it.</p> <p>4 That the provision of the bankrupt act, that no creditor proving his claim shall be allowed to maintain any suit therefor, was not one that executed itself, and that, by failing to bring the matter to the attention of the court, B had waived all his rights under that provision.</p>

<p>It is provided by Gen, Statutes, p. 388, sec. 6, that when a creditor of an estate not represented insolvent shall present his claim, within the time limited, to the executor or administrator, and he shall disallow it, such creditor shall be debarred of his claim if he shall not within four months thereafter commence a suit for its recovery. Held that, while such an estate is in settlement, this statute, and not the general statute of limitations, governs claims presented against it.</p> <p>A claim' that, under the general statute, would have been barred in six years from the time it accrued, was, before thus barred, duly presented against a solvent estate and allowed by the administrators, but the time for closing the settlement of-the estate was extended by the court of probate, and the estate rejnained open and tins claim unpaid for ten years. At the end of that time the administrators notified the creditor that they disallowed his claim on the ground that it was barred by the statute of limitations. The creditor within four months thereafter brought a suit against them upon the claim. Held that the claim was not barred.</p>

Action to recover money agreed to be paid; brought, by appeal from a justice of the peace, to the Court of Common Pleas of Litchfield County. Defense that the cause of action did not accrue within three years before the suit was brought. Demurrer to the defense. Defense held sufficient (Warner, J.,) and judgment rendered for the defendant. The plaintiff appealed. The case is fully stated in the opinion.

The application (omitting a part not found true by the court) was as follows:— “ Gideon IT. Welch v. Willard H. Barler.

Suit to recover for supplies furnished paupers; brought to the Court of Common Pleas of Litchfield Count}', and tried to the court before Warner, J. Judgment for the plaintiffs and appeal by the defendants. The case is sufficiently stated in the opinion.

Action for fraud in the sale of a quantity of oats; brought to the Court of Common Pleas of Hartford County. The plaintiff and defendants were residents of the state of Illinois, the latter constituting the firm of W. D. Fairbanks & Co. The writ contained a factorizing process, and the officer was directed to make service on Smith, Northam & Co. of Hartford, as debtors of the defendants.

Application fco the Superior Court in Hartford County for the appointment of a committee of three to establish a disputed divisional line between the plaintiff and defendant towns, brought under Gen. Statutes, p. 88, sec. 8, which is given in full in the opinion. The committee was appointed, gave the notice required by the statute, heard the parties interested, fixed the divisional line and marked it by monuments, and made its report.

Suit for an injunction against the obstruction of a highway ; brought to the Court of Common Pleas for Hartford County, and heard before Calhoun, J. Facts found and injunction granted. Appeal by the defendants. The case is sufficiently stated in the opinion.

The facts were found by a committee and judgment rendered for the appellee. {Andrews, J.) Appeal by the appellant to this court. The case is sufficiently stated in the opinion.

Suit for an injunction and damages; brought to the Court of Common Pleas and tried to the court before Mather, J. The following facts were found by the court:— The plaintiff has been the owner of the tract of land described as belonging to her in the complaint, since July 29th, 1880.

Action to recover of the defendant the value of supplies furnished to him as a pauper; brought to the Court of Common Pleas of New London County, and tried to the jury before Mather, J. Yerdict for the plaintiff, and appeal by the defendant for error in the charge to the jury. The case is sufficiently stated in the opinion.

Replevin, for a quantity of whiskey and wine; brought to the Court of Common Pleas, and tried to the court before Torrance, J. The following facts were found by the court:— The plaintiff was, on the 26th day of July, 1883, and still is, a wine and liquor merchant, duly licensed for the town of New Haven and residing and doing business there.

Application to a judge of the Superior Court for a certificate of election as a tax assessor and for a mandamus. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

<p>Application for a mandamus; brought to the Superior Court and heard before Beardsley, J. Facts found and peremptory mandamus issued. Appeal by defendant. The case is fully stated in the opinion.</p>

Habeas Cobpus, in the Superior Court. Reserved on a demurrer to the defendant’s return, for the advice of this court. The case is fully stated in the opinion.

Suit to compel the defendants to convey certain real estate, and to account for rents and profits received; brought to the Superior Court, and tried to the court before Stoddard, J. The suit was . originally brought by Samjrel E. Merwin and Samuel E. Merwin, Jr., co-partners under the name of S. E. Merwin & Son, as creditors of Philip Hugo, an insolvent debtor, and sought to have the property in question conveyed to the trustee of his insolvent estate for the benefit of all…

Suit for the settlement of the rights of parties interested under a will and for the distribution of a trust fund ; brought to the Superior Court. Facts found and case reserved for advice. The case is fully stated in the opinion.

Actio» for an entry upon the plaintiffs’ land and cutting down trees and removing fences; brought to the Court of Common Pleas and tried to the court before Torrance, J. Facts found and judgment rendered for the plaintiffs. Appeal by the defendants. The case is fully stated in the opinion.

Action for a trespass to land; brought to the Court of Common Pleas, and tried to the court on a general denial, before Torrance, J. Facts found and judgment for the plaintiffs. Appeal by the defendants. The case is fully stated in the opinion.

Action for a contribution by the defendant as a tenant in common with the plaintiffs for expenses incurred by the latter for the benefit of the common estate; brought to the Court of Common Pleas of Litchfield County, and tried to the court before Warner, J. Facts found and judgment rendered for the plaintiffs for only a part of their claim. Appeal by the plaintiffs. The case is fully stated in the opinion.

Action for damage to the plaintiff’s land by fire communicated by the locomotive engine of the defendants, a railroad company; brought by appeal from the judgment of a justice of the peace, to the Court of Common Pleas of Hartford County, and tried to the court, before Calhoun, J. The statute on which the action is founded is given in full in the opinion of the court.

Replevin for liquors taken and carried away; brought to the City Court of the city of Hartford and tried before Bennett, J. Facts found and judgment for the plaintiffs, and appeal by the defendants. The-case is sufficiently stated in the opinion.

Action to recover possession of land and for damages, brought to the Superior Court in Hartford County. Facts found by a committee, and case reserved for advice. The points of law decided can be sufficiently understood from the opinion, without a statement of the facts, which would occupy much space.

Action to recover for an injury caused by the negligence of the defendants, a railroad company; brought to the Superior Court in Hartford County. The defendants suffered a default and -were heard in damages before Stoddard, J. The following facts were found by the court. The defendant is a railroad corporation, operating a line of single tracked road from Boston, Massachusetts, through the state of Connecticut to the Hudson river.

Suit for advice as to the construction of a will, brought to the Superior Court in Hartford County by the plaintiff, which was administrator de bonis non with the will annexed, heard before Stoddard, J. The following facts were found by the court:— Gardner P. Barber, late of Hartford, died on the 8th day of October, 1879, possessed of a considerable estate, both real and personal.

Ihfobmatioh for adultery in the Superior Court in Hartford County. Tried to the jury before Carpenter, J. Verdict guilty, and appeal by the defendant for error in the admission of evidence. The case is sufficiently stated in the opinion.

Action by husband and wife to recover money claimed to be due the wife for her personal services; brought to the Court of Common Pleas, and beard before Mather, J. Facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The case is fully stated in the opinion.

Suit to foreclose a judgment lien, to set aside or postpone a trust mortgage and assignment in insolvency, and for possession of the… Held: passed the following votes: “ Voted, that the standing committee be authorized to exchange the Spragues’ liabilities for the new notes of the A. & W. Sprague Manufacturing Company, indorsed by A. & W. Sprague, on the terms proposed in the trust deed to Z. Chafee; the bank retaining the original paper as collateral security. “ Voted,…

Action for money held by the defendants as a deposit; brought to the Superior Court, and tried to the court before Quiver, J. Facts found and judgment rendered for the plaintiff. Appeal by the defendant. The case is fully stated in the opinion.

Action against husband and wife for goods sold to the husband and that went to the defendants’ joint use; brought to the Court of Common Pleas and tried to the court before Hall, J. Facts found and judgment rendered against both defendants. The defendants appealed. The case is fully stated in the opinion.

Shit to foreclose a judgment lien, brought to the Superior Court, and heard.before Beardsley, J. Facts found and judgment rendered for the defendants. Appeal by the plaintiffs. The case is sufficiently stated in the opinion.

Pettengill as intestate estate; taken to the Superior Court. The appellees demurred to the reasons of appeal assigned, and the court reserved the case for the advice of this court. The case is sufficiently stated in the opinion.

estate; taken to the Superior Court. The appellant was the husband of the intestate and administrator of her estate. .The facts were found by a committee and the decree of the probate court affirmed, (Beardsley, J.') The appellant appealed to this court. The case is sufficiently stated in the opinion.

Appeal by the appellant as administrator of the estate of Charry Staples, his deceased wife, from a decree of the probate court disallowing his administration account; taken to the Superior Court. Facts found by a committee and the decree of the probate court affirmed. ('Beardsley, J.~) Appeal to this court by the appellant. The points decided will be sufficiently understood without a statement of the facts.

Suit for the establishment of a boundary line and for an injunction; brought to the Superior Court. Facts found b}' a committee and case reserved for advice. The points decided by the court will be sufficiently understood without a statement of the facts.

Action on a promissory note; brought to the Superior Court. Defense, statute of limitations. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Suit to set aside a fraudulent deed; brought to the Superior Court, and tried before Beardsley, J. Facts found and judgment rendered for the plaintiff. Appeal by the defendant. The case is sufficiently stated in the opinion.

Action for breach of a contract; brought to the Superior Court in Windham County, and tried to the jury before Sanford, J. The contract was for the purchase of all the apples from the defendant’s orchard, to he delivered at the Putnam station on the New York New & England Railroad in this state: the plaintiffs to furnish crates and barrels to be there delivered.

Scire Facias upon a process of foreign attachment; brought, by appeal from a justice of the peace, to the Court of Common Pleas of Litchfield County, and tried before Warner, J. Facts found and judgment rendered for the plaintiff and appeal by the defendants. The case is fully stated in the opinion.

Action to recover for goods sold; brought by appeal from a justice of the peace, to the Court of Common Pleas of Litchfield County and tried to the jury before Warner, J. Verdict for the defendant and appeal by the plaintiffs. The points of law decided by the court will be sufficiently understood without a statement of the facts.

Petition under the flowage act (Gen. Statutes, tit. 19, part 6;) brought to the Superior Court in Hartford County. Decree in favor of the petitioners and appeal by the defendants. The case is sufficiently stated in the opinion.

Brainard as executor of James M. Goodwin, deceased; taken to the Superior Court in Hartford County. The reason of appeal assigned was the allowance by the court of a note of $2,375.61 and interest, as a part of the account. The following facts were found by the court:— The appellants are the children of Henry W.. Goodwin, deceased, who was a son of the testator. Henry W. died in 1876 ; the testator in 1870.

Action for damages for the killing of a heifer; brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas of Litchfield count}*-, and tried to the court before Warner, J. Judgment for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion,

Suit for the correction of certain bonds issued by the plaintiffs, which were in terms payable at the end of twenty years from their date, but which were intended to be issued with a provision that the town might at its option pay them in ten years from date; brought to the Superior Court in Middlesex County.

Action for the recovery of possession of several parcels of land with rents and profits; brought to the Superior Court in Litchfield County, and tried to the court before Beardsley, J. Facts found and judgment rendered for the defendant. Appeal by the plaintiff. The case is sufficiently stated in the opinion.

Suit for advice as to the construction of a will; brought to the Superior Court in Litchfield County. Facts found, and case reserved for advice. The case is sufficiently stated in the opinion.

<p>Evidence that a man and woman, who had lived together as husband and wife, were reputed not to have been married but to have been cohabiting unlawfully, it is not admissible against proof of a formal marriage. Reputation of adulterous relations is not admissible as primary proof, but only in aid of or incidential to substantive proof.</p> <p>A certificate of marriage is treated in this state as an original document, and need not be authenticated as a copy.</p>

<p>A husband and wife, married in 1866, in 1882 entered into a written agreement under the provisions of the act of 1877 with regard to theproperty rights of husband and wife, by which they made the act applicable to themselves and relinquished their mutual rights under the law as it stood before that act was passed. The husband further agreed to accept certain personal property in lieu of the share of his wife’s property which he would have become entitled to under the act if he had survived her. At the time of their marriage the wife owned a farm, with some stock and farming implements upon it, and the husband, who had no property of his own, had lived on the farm and cultivated it ever since. In a suit afterwards brought by an assignee of the husband’s rights against the wife for the stock and other personal property on the farm, it W'as found that he had occupied the farm with her consent and from the rents and profits, in connection with his own labor, had become the owner of the property claimed, except so far as his title was affected by the agreement. Held—</p> <p>1. That the finding must be construed as meaning that he had acquired the property in question from the use of his wife’s property as trustee of it under the law then in force.</p> <p>2. That the contract must he construed as meaning that the statute of 1877 should apply to the case as if it had existed at the time of their marriage, and that consequently all that he had derived from the use of the property as trustee of the wife was relinquished by it.</p>

<p>T was the owner of a building that needed extensive repairs and employed M, her brother, to procure them made, giving him full authority to act ! according to his own judgment, but directing him not to expend over $500, which sum she soon after placed in his hands. JET, without disclosing his agency, employed the plaintiffs to furnish materials, which they did to the amount of $372, supposing him to be the owner. After they had furnished the materials they learned that T was the owner, and elected to make her their debtor and filed a certificate of lien upon the building. H had paid out $350 upon other hills but had paid the plaintiffs nothing. In a suit to foreclose the lien the court below found that if, in contracting with the plaintiffs, was acting rightfully in behalf of T and had authority from her so to do, and rendered judgment in their favor for the whole amount of their claim. Held, on the defendant’s appeal—</p> <p>1. That the rule that when a creditor seeks to hold an undisclosed principal he must take the account between the principal and the agent as he finds it, did not apply to the case, because the statute (Gen. Statutes, p. 359, sec. 9,) gives a lien to parties furnishing materials or labor at the request of the owner “ or of some person having authority from or rightfully acting for such owner,” and the plaintiffs had a right to rely on their lien without reference to any personal liability.</p> <p>2. That it did not appear that H, in contracting for the amount of materials furnished by the plaintiffs, was exceeding his authority, since the purchase of materials would ordinarily precede the procuring of labor to use them, and the amount purchased was within the 8500.</p> <p>S. That, as every reasonable intendment was to be made to support the . judgment, and it appearing that the whole repairs cost considerably over §500, it might be assumed that T, knowing of the progress of the work, and making no objection, had assented to the increased expenditure, and that the finding that If had authority to do what he did might be regarded as a finding of fact.</p> <p>. M was not expressly forbidden to purchase on credit. The prohibition, if it existed, could only be inferred from the fact that T placed §500 in his hands. But that inference was one of fact and could be made only by the court below; while the court had not only not made it but had found that what he did he was authorized to do.</p> <p>There is a distinction between the power conferred upon an agent and instructions given him relative to the exercise of the power. The limitation in this case of the expenditure to §500 did not affect the character of the power, but simply restrained within certain limits its exercise.</p>

<p>The D & y and the S railroads connected, forming a continuous line. By an arrangement between ihe two companies a train owned and run by the S company went over both roads to a certain point and hack daily, the D & N company paying the S company monthly an agreed price for the service upon its road. The train when on the road of the D & N company was under its general control and governed by its rules, and it had entire control of the hands upon it, but the S company was at liberty to use wbat. engine and employ what hands it pleased. The plaintiff was a brakeman on this train and was injured by a collision with a train of the D & N company on its own road, caused by the negligence of the conductor of that train. Held that the plaintiff was not an employee of the D & N company, and that the conductor of the other train was therefore not his fellow-servant.</p> <p>But the D & N company would have been liable to the plaintiff as its employee if it had been negligent in the employment of a suitable conductor on the train in question, or in having a reasonably safe system for directing its trains.</p> <p>Whether upon the facts (reviewed at length) the X> & N company was to be regarded as guilty of negligence: Quiere.</p> <p>Tlie complaint alleged that the plaintiff was employed by the S company as a brakeman and as such employee was lawfully riding on a train of the & company on the road of the D & N company, and while so riding was injured, <&c. Held not to be a fatal variance as misstating the plaintiff’s position and his reason for being on the train and on the defendants’ road.</p>

<p>A testator made the following bequests:—“I give to my wife S one half of all my estate, both real and personal, to have and to hold the same to her own proper use and benefit forever. And furthermore I give to my wife 8 the remaining half of my estate, both real and personal, with the right to sell, dispose of, convey, and use the same without any restrictions whatever during her natural life; and at her decease one half of what remains of my estate I give to my brother W and to my sisters P and N, to be divided between them equally.” Held that 8 had an absolute power to dispose of the second half of the estate during her life, and that a conveyance made by her carried a good title in fee,</p> <p>And held that she could dispose of the property by gift, if she chose, as well as in any other mode.</p> <p>The testator appointed S his executrix. More than a year after the time limited for filing an inventory in the probate court she conveyed away all the property and a year later died, having filed no inventory, nor done any thing in the settlement of the estate beyond proving the will and giving a probate bond, and afterwards paying all the debts. An administrator de bonis non with the will annexed was appointed on the husband’s estate, for whose benefit a suit was brought in the name of the state on the bond. Held that, there remaining no property to which the administrator had a rightful claim, and there being no debts, to be paid, the administrator had no such interest as made the suit sustainable for his benefit, for the technical breach of the bond in the neglect to file an inventory and render an account of administration.</p>

<p>Appeal from sundry probate decrees with regard to the insolvent estate of one Edward King; taken to the Superior Court in Hartford County and heard before Beardsley, J. Facts found and decrees affirmed. Appeal by the appellant. The case is sufficiently stated in the opinion.</p>

<p>Appeal from an assessment of damages and benefits from the opening of a street in the defendant city ; taken to the judge of the Court of Common Pleas of Hartford County. The facts were found by a committee and the assessment appealed from affirmed. Appeal by the plaintiff.</p>

Bill in Equity for the removal of an existing dam across Connecticut River, and for an injunction against a •threatened raising of the dam. The Connecticut River Company was incorporated by the General Assembly of the state of Connecticut in 1824 “for the purpose of improving the navigation of Connecticut River, with power to make a canal with locks around En-field Falls, and to construct (with certain restrictions) a dam across the river at the upper end of the canal.

<p>The failure of a person insured to comply with a promissory representation as to his future conduct in a matter relating to the insurance, made without fraud, and not incorporated in the policy, is not ground of defense against a recovery on the policy.</p>

<p>A policy of fire insurance contained the following provision: “Insurance once made may be continued for such further term as may be agreed on, the premium being paid aud a renewal receipt given; and it shall be considered as continued under the original representation, so far as not varied by a new representation in writing, which it shall be incumbent on the insured to make when the risk has been changed, within itself or by the surrounding buildings; othex-wise said policy and renewal shall be void.” The policy also provided that if the risk should be increased by any means known to the assured, without immediate notice to the company and indorsement on the policy, the insurance should become void. The defendants insured a factory for the plaintiffs for the term of one year upon a written representation which described it as “ detached on all sides.” During the year the plaintiffs erected a large warehouse forty-one feet from the factory, which increased the risk. At the end of the year they applied for a “ renewal by a new policy,” but gave no notice of the erection of the warehouse. A new policy was issued in the same terms with the old one, and during the year covered by it the factory was burned. Held—</p> <p>1. That the neglect of the plaintiffs to notify the defendants of the increased risk from the erection of the warehouse rendered the renewal of the insurance void.</p> <p>% That it did not alter the case that the renewal was by a new policy and not by a renewal certificate, the plaintiffs themselves asking for the renewal in that form.</p> <p>The policy gave the plaintiffs permission “to make additions, alterations and repairs.” Held that the new building could not properly be called an addition to the factory, although connected with it by a bridge and an underground passage.</p>

<p>An indorsement of her name in blank by a wife upon a policy of insurance upon the life of her husband taken out for her benefit and payable to her or her assigns, with a delivery of the policy to the husband, to enable him to use it as collateral security in obtaining a loan, will be valid and binding in equity in favor of the party making the loan, and the wife will not be permitted to deny the power of the husband to fill up the assignment.</p> <p>Where the husband, without the authority or knowledge of the wife, filled out the assignment of the policy not merely as security for the proposed loan, but also as security to a creditor for a pre-existing debt, it was held that the wife was not bound by the latter assignment.</p> <p>The assignment of such a policy by a wife is valid in this state.</p> <p>By the laws of New York where the husband and wife resided such an assignment was invalid. The policy was issued by an insurance com-(i pany of this state and the assignment was made in the state of New Jersey, where such assignments were valid. Held that the laws of | New York could not operate in the case.</p>