Volume 53 — Connecticut Reports

Action for an injury from a defective sidewalk of the defendant city; brought to the Superior Court. The defendants having suffered a default, the plaintiff moved for a jury to assess the damages. The court (Andrews, J.,) overruled the motion and heard the case, found the facts, and assessed the damages at $60. Appeal by the plaintiff on the ground of error in this ruling of the court and in the admission of evidence. The case is sufficiently stated in the opinion.

Action to recover the balance due on a contract for the purchase of certain books; brought, by appeal from a justice of the peace, to the Court of Common Pleas, and heard in that court, upon a demurrer of the plaintiffs to the defendant’s answer, before Hall, J. The plaintiffs were publishers under the name of D. Appleton & Co. The contract for the purchase by the defendant of a set of the American Cyclopedia and Index, is fully given in the opinion of the court.

Action to recover of the defendant borough damages assessed in the plaintiffs’ favor for land claimed to have been taken by the borough for the construction of public water works; brought to the Superior Court. The following facts were found by the court.

The reasons of appeal alleged that the appellant, now wife of George W. Hewitt, who was joined in the appeal, was the wife of the said Chauncey Welles at the time of his death on the 2d of February, 1869; that she was living with him at the time of his death; that no provision had been made for her by way of jointure or of settlement in lieu of dower before her marriage to him; that he died intestate, and was owner at the time and possessed in his own right of real estate in…

Action for an account and for equitable relief; brought to the Superior Court in Litchfield County. Facts found by a committee and judgment rendered (Andrews, J.,) in favor of one of the defendants upon a counter-claim asking for a foreclosure and dismissing the complaint as to the other defendant. The plaintiffs appealed. The points decided by the court will be sufficiently understood from the statement of the facts in the opinion.

Action for a libel; brought by the plaintiffs to the Superior Court in'the county of Hartford.

<p>In the case of non-trading partnerships the individual partners have not the same implied authority as in commercial partnerships to bind the firm by notes executed in the name of the firm.</p> <p>In such a case the presumption of want of authority may be overcome by proof of express authority or of such a state of facts as justly implies authority.</p> <p>These facts may be a course of conduct on the part of the firm, the usage of similar partnerships, the necessities of the business, or a ratification of the act by receiving the benefit of it.</p> <p>A partnership formed for conducting a theater is one of the non-trading class.</p> <p>How far a bonii fide holder of a promissory note thus executed is affected by the character of the partnership where he had no knowledge on the subject: Quaere.</p> <p>Whether the note of a non-trading partnership, made by one of the partners, for a debt of the firm, would not be binding on the firm: Quaere.</p> <p>The term “burden of proof” is properly used only with reference to a party who is burdened with the necessity of proving some affirmative fact essential to the support of his case. The burden of proof, in this sense, never shifts from side to side during the trial. The necessity of supplying prevailing evidence shifts from one side to the other as the evidence on one side or the other predominates; but this is a matter of sufficiency of proof, not of the burden of proof.</p>

Action to recover for a cow sold; 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 Bennett, J. The court found the following facts:— On the 18th of October, 1883, the defendant bought of the plaintiff two Jersey cows—one known as “Kittina” and the other as “ Colt’s heifer.” For the cow Kittina he agreed to pay $100 if she proved to be with calf at the time of the purchase, but if she…

Information in the nature of a writ of quo warranto, filed in'the Superior Court in Hartford County The information set forth that it was provided by the law of the state and by the charter and ordinances of the city of Hartford that a meeting of the entire Court of Common Council in joint convention should be holden yearly on the second Monday after the annual city election, for the choice of a prosecuting attorney for the city and of other city officers; that on April…

Amicable Submission to the Superior Court upon the following agreed statement of facts : On January 10th, 1884, John F. Slater, of Norwich, duly executed the following will: “ I, John F. Slater, of Norwich, Connecticut, being of sound and disposing mind and memory, do make and declave this to be my last will and testament, hereby revoking all wills by me heretofore made. “ First.

Action for moneys expended and services rendered, brought by appeal from the judgment of a justice of the peace to the Court of Common Pleas. The complaint contained two counts, one for moneys expended and services rendered for Sabrina Main, of whose estate the defendants were administrators, in her life time, and the other for moneys expended and services rendered for the defendants as administrators of her estate. The defendants pleaded the general issue and a set-off.

Suit for an injunction against the use by the defendants of the plaintiffs’ trade-mark, for an account, and for damages ; brought to the Superior Court in New Haven County. The plaintiffs were a joint stock corporation by the name of “ Rogers & Brother,” and the defendants a copartnership by the name of “ C. Rogers & Brothers.” The case was heard before Beardsley, J., and the following facts found:— The plaintiff corporation is located at Waterbury, in this state.

Suit for the construction of a will; brought to the Superior Court. The plaintiff is a trust corporation and executor of the will. Facts found and case reserved for advice. The case is fully stated in the opinion.

Action by the plaintiff as assignee of Solon B. Perkins and others, grantors of the defendant, for the non-performance by the latter of a promise to pay a mortgage debt supposed to be a charge on the land conveyed; brought to the Court of Common Pleas, and tried to the court before Torrance, J. The defendant in his answer set up, among other things, the statute of limitations. The following facts were found by the court.

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

Action for an injury by reason of the negligence of the defendant; brought to the Superior Court.

. Action to recover for an injury from a defect in a highway of the defendant town; brought to the Court of Common Pleas, and heard in damages, upon a demurrer overruled, before Torrance, J. Facts found and damages assessed at $171.59. Appeal to this court by the defendants. The case is fully stated in the opinion.

Action of scire facias upon a process of foreign attachment, to recover of the defendant city as a garnishee certain money claimed to be due to one Chesley; brought, by appeal from a justice of the peace, to the Court of Common Pleas, and by that court reserved for advice. The case is sufficiently stated in the opinion.

Suit for advice as to the construction of the will of Adeline A. Goodnough, brought by the plaintiff, as administrator of her estate with the will annexed, to the Superior Court. Facts found and case reserved for advice. The case is sufficiently stated in the opinion.

Action to recover for a quantity of hats, caps and gloves sold; brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas, and tried to the jury on a general denial, before Studley, J. On the trial it was admitted by both plaintiff and defendant, that the goods specified in the bill of particulars were ordered by the defendant of the plaintiff in September, 1883, to be sent as freight; the order describing the goods in each case as parts of…

Action for damages for taking and carrying away the plaintiff’s goods; brought to the Court of Common Pleas, and tried to the jury before Torrance, J. Verdict for the plaintiff, and appeal by the defendant. The case is sufficiently stated in the opinion.

Suit for advice as to the construction of a will and as to the validity of certain bequests in it; brought to the Superior Court. The following facts were found by the court: Julius D. Bristol died on the 29th of August, 1884, possessed of a considerable estate, real and personal, and leaving a will, of which the following parts are important to the present case. He made his wife, Martha A. Bristol, his executrix: “ Item eleventh.

Suit by executors and trustees for an adjudication as to the construction and validity of a will; brought to the Superior Court. The following facts, set forth in the complaint, were admitted by the parties and found by the court: Henry Farnam, of New Haven in this state, died in Oe‘tober, 1883, leaving an estate, mainly personal, of eighteen hundred thousand dollars, and a will, executed on the 22d of April, 1882, which was duly proved in the probate court after his death.

Suit for the annulling of a mortgage and of a later conveyance of real estate, and for a reconveyance of the same, for the annulling of a hill of sale for the payment of certain money, and for the possession of the real estate; brought to the Superior Court. The following facts were found by a committee: Martin L. Blackman, named in the complaint, was, in November, 1881, about sixty-eight years of age.

Assumpsit, upon the common counts; brought to the Superior Court in Middlesex County. The case was referred to a committee, who heard it and made his report, finding the issue for the plaintiffs. The defendants remonstrated against the acceptance of the report. The court (Phelps, J.) overruled the remonstrance, accepted the report, and rendered judgment for the plaintiffs. The defendants appealed to this court. The case is sufficiently stated in the opinion.

Action to recover for supplies furnished to a pauper, claimed to belong to the defendant town; brought to the Superior Court in Tolland County, and, on a finding of the facts, reserved for the advice of this court. The case is fully stated in the opinion.

Suit for an injunction restraining the defendant corporation from ratifying a lease of its road, for the appointment of a receiver and for an account; brought to the Superior Court in Middlesex County, and heard before Phelps, J. Facts found and judgment rendered for the defendants. Appeal by the plaintiff. The case is sufficiently stated in the opinion.

Suit for an injunction against the leasing of a railroad; brought to the Superior Court in Middlesex County.

Action for a new trial on the ground of newly discovered evidence; brought to the Superior Court in Litchfield County. Demurrer to the complaint. Heard before Torrance, J. Complaint held insufficient and judgment rendered for the defendant. Appeal by the plaintiff. The case is. sufficiently stated in the opinion.

Lee, in disallowing a claim of the appellant; taken to the Superior Court in Hartford County, and tried to the jury in that court before Sanford, J. Yerdict for the appellant, and appeal to this court by the appellee. The case is fully stated in the opinion.

Suit for an injunction against the closing up of parts of two highways; brought to the Superior Court in Hartford County, and reserved, on a demurrer to the defendant’s answer, for the advice of this court. The case is fully stated in the opinion.

Action by the plaintiff as administrator of the estate of Charles P. Griswold, for an injury to the intestate by the negligence of the defendant, a railroad company, which caused his death; brought to the Superior Court in Hartford County.

Action to recover money due; brought to the Superior Court in Hartford County. The defendants resided in the state of Indiana, and service was made only by leaving a copy with the Connecticut Mutual Life Insurance Company as a garnishee. The defendants appeared only to plead to the jurisdiction. The court (Andrews, Jr.,') found the facts, and rendered judgment for the defendants. The plaintiffs appealed. The case is fully stated in the opinion.

Action for the wrongful taking of a horse; brought to the City Court of the city of Hartford and tried to the jury before Bennett, J. Yerdict for the defendants. Appeal by the plaintiff. The case is sufficiently stated in the opinion.

<p>The act of 1882 (Session Laws of 1882, p, 186), provides that if any licensed person “ shall sell or deliver any intoxicating liquor to a minor,” he shall he fined, &c. Held that a delivery to a minor sent by his father to purchase liquor for him, did not come within the act.</p>

<p>The act of 1882 (Session Laws 1882, p. 187) provides that the reports of the decisions of the Supreme Court of the state shall thereafter “ he published by the state, under the supervision of the comptroller, who shall cause the volumes to be stereotyped, and copyrighted in the name of the secretary of the state.” The comptroller made a contract with Banks & Brothers for the printing and selling by them at a price named of the next five volumes, the contract providing that they should take out a copyright on each volume in the name of the secretary for the benefit of the state, and that the volumes should be stereotyped, the plates to belong to the state and Banks & Brothers to have the exclusive right to print from them. Before the contract had expired certain publishers of weekly law magazines applied to the court for an order that the reporter should furnish them copies of all opinions as they were filed with him, on their request and payment therefor, for immediate publication in their magazines. Motion denied, on the ground that it would be a violation of the rights of Banks & Brothers under their contract.</p> <p>The judges and the reporter being paid by the state, the product of their mental labor is the property of the state, and the state has power to take for itself a copyright of it, and it is for the state to say when and in what manner the decisions of the court shall be published.</p> <p>The taking of the copyright does not offend the rule that judicial proceedings shall be public. The courts and their records are open to all. The reasons given by the judges for their determination in a particular case constitute no part of the record therein ; and these are accessible to all who desire to use them in the enforcement of their rights.</p>

<p>Debt upon a bond; brought to the Superior Court. Plea, a general denial, with notice. The case was referred to a committee by whom the following facts were found:—</p> <p>On the 22d day of April, 1878, the plaintiff and William H. Mallory, one of the defendants, signed and duly executed in duplicate the following contract:—</p> <p>“ This agreement made and entered into this 22d day of April, 1878, by and between Frank G. Fowler of Bridgeport, Fairfield County, Conn., of the first part, and William H.' Mallory of said town, county and state, of the second part, witnesseth:</p> <p>“ The said Frank G. Fowler for and on account of considerations hereinafter mentioned, and at the special request of said William H. Mallory, agrees to assign, transfer and deliver to the American Propeller Company a certain letters-patent for improvement in steering propellers, numbered 1989, and granted by authority of the Kingdom of Great Britain and Ireland to William Clark in said letters-patent mentioned, and dated May 11th, 1876, as will appear, and duly assigned to said Frank G. Fowler by said William Clark, on the 4th day of October, 1876, as will appear by said assignment duly executed and delivered.</p> <p>“ The said Frank G. Fowler is to assign and deliver said letters-patent to said American Propeller Company, at the request of said William H. Mallory, upon the following terms and for the purposes hereinafter mentioned, to wit:— To be sold, assigned and transferred to any parties in Great Britain or elsewhere, together with all the rights, privileges, grants and conditions therein contained, for such a sum of money as the said American Propeller Company shall deem advisable ; such sale, leasing or grant is to be made by the American Propeller Company and completed on or before the 22d of April, 1879, and not thereafter. The said letters-patent are to be sold or leased with and in connection with certain other letters-patent, to wit: A letters-patent granted to Alfred Yincent Newton, of 66 Chancery Lane, dated July 4th, 1867, and numbered 1963, a letters-patent granted to Edward Thomas Hughes, of 23 Chancery Lane, dated July 1st, 1874, and numbered 2277, and. now owned by said American Propeller Company, and the said letters-patent so owned by the said American Propeller Company, and dated and numbered as aforesaid, are to be sold with the above patent numbered 1989 and dated as aforesaid, and all sold together. And in case said letters-patent are so sold, leased or disposed of at any price within the time aforesaid, then the said Mallory, his heirs, executors, administrators or assigns, are to pay to the said Fowler, his executors, administrators, heirs or assigns,’ the sum of eight thousand dollars, within six months after the date of such disposal or sale. And in case the aforesaid letters-patent, meaning either or all the said patents, shall be disposed of for a greater sum than eighty thousand dollars, then the said Mallory, his heirs, executors, administrators or assigns, are to pay to the- said Fowler, his heirs, executors, administrators or assigns, at the rate of ten per cent., or ten dollars for every hundred dollars, over and above the said eighty thousand dollars, till the amount of such sales reaches the. sum of one hundred and fifty thousand dollars, beyond which sum of one hundred and fifty thousand dollars sales the said F. G. Fowler is to receive nothing, or no further percentage. In case no disposition of said letters-patent hereinbefore mentioned and referred to shall be made within the time aforesaid, then the said William H. Mallory, his heirs, executors, administrators or assigns, shall re-assign or cause to be re-assigned the said letters-patent numbered 1989 to the said Fowler, his heirs, executors, administrators or assigns, and restore the same fully and without loss or reservation within three days from the expiration of this contract.</p> <p>“The said F. G. Fowler is not to be made any loss, cost or damage for or on account of this agreement; and the aforesaid ten per cent, or one hundred dollars for each one thousand dollars of sales as aforesaid, is to be rated upon gross sales ; and the said William H. Mallory is to cause to be rendered to the said Fowler a correct statement from said American Propeller Company, and sworn to by the president thereof before proper authority, of all sales wherein the above percentage is to be computed, when the same shall be required by the said Fowler.”</p> <p>The bond upon which the suit is brought was executed the same day by William H. Mallory as principal, and by the other defendants, George Malloiy and I. DeVer Warner, as sureties, and was for the faithful performance of the foregoing contract by William H. Mallory.</p> <p>On the same day, and after the execution and delivery of the contract and bond, the plaintiff executed and delivered to William H. Mallory, for the American Propeller Company, an assignment to the company of the letters-patent numbered 1989, which Fowler had agreed by the contract to assign to the company.</p> <p>The American Propeller Company was a corporation duly organized under the joint stock laws of this state, and William H. Mallory was its president and agent, duly authorized to accept for it from Fowler the assignment of the letters-patent, and duly authorized as general agent of the corporation to transact business in its behalf.</p> <p>Contemporaneously with the delivery by the plaintiff to Mallory of the assignment of the Clark patent, he delivered to Mallory the grant issued under authority of the Kingdom of Great Britain and Ireland to William Clark, and the assignments thereof from Clark to the plaintiff.</p> <p>At the time of the execution of the contract, bond and assignment, Mallory was on the eve of departure for London, in company with Gen. Joseph R. Hawley, they being agents of the American Propeller Company for the purpose, among other things, of disposing of the letters-patent mentioned in the contract, and for that purpose they took with them the originals of the Clark patent and assignments. They also took to London, with authority to dispose of the same, the letters-patent described in the contract as letters-patent granted to Alfred Vincent Newton, No. 1963, and letters-patent granted to Edward Thomas Hughes, No. 2277, then owned by the American Propeller Company.</p> <p>Immediately upon their arrival in London they entered upon the business contemplated by their voyage, and attempted in good faith to dispose of the letters-patent No. 1989, granted to William Clark, in connection with the other letters-patent Nos. 1963 and 2277.</p> <p>On the 12th of October, 1868, letters-patent under the authority of the Kingdom of Great Britain and Ireland had been granted to one William Moodie, numbered 3122. This letters-patent will be hereinafter referred to as the Moodie patent, and the device or invention thereby patented as the Moodie device or invention, while the letters-patent No. 1989 will be hereinafter referred to as the Clark patent, and the device or invention thereby patented as the Clark device or invention. The defendants claimed that the Moodie patent anticipated the Clark patent, and that the Moodie device and invention were substantially the same as the Clark device and invention.</p> <p>When Mallory and Hawley began their business in London neither of them had ever heard of the Moodie patent, or of his device or invention ; but in consequence of something said to them by one Palmer, with whom they were trying to negotiate for the sale of the patents soon after their arrival in London, they got from the patent office a copy of the Moodie patent and gave it a careful and critical examination.</p> <p>Up to the time of the discovery by them of the Moodie patent as aforesaid, they had endeavored in good faith to sell all the patents in connection with each other, but by reason of the existence of the Moodie patent and the similarity between the Moodie device and the Clark device, and the possibility that the two devices might be held to be substantially identical with each other, and the knowledge of those facts by themselves and by the parties with whom they were negotiating, they found it impossible to dispose of the Clark patent.</p> <p>On the 24th of August, 1878, the American Propeller Company, by Hawley and Mallory acting as its agents and in its behalf, assigned and disposed of the letters-patent numbered 1963 and 2277, to the Mallory Propeller Company, Limited, a corporation duly organized in England; but they were unable, for the reasons aforesaid, to make any profitable use of the Clark patent, and neither they nor the American Propeller Company ever received any proceeds therefrom.</p> <p>The evidence introduced by the parties respectively upon the question whether the Clark device was or was not substantially identical with the Moodie device included the exhibition of models, from which it appeared that the great feature of each device was a dial-plate with certain lines upon it; the only material difference consisting in the fact that the dial-plate in the Clark device is graduated and numbered, while the dial-plate in the Moodie device is not graduated and numbered; and the un-numbered lines of the Moodie dial-plate are not designed to accomplish, and do not in fact accomplish, the result which the numbered lines of the Clark dial-plate are designed to accomplish and do in fact accomplish. If the dial-plate in the Moodie device were graduated and numbered substantially like the dial-plate in the Clark device, the two devices would be substantially identical with each other for all practical purposes. Without such graduating and numbering of the dial-plate the Moodie device would not enable an officer in a part of the ship distant from the steersman to communicate his wishes to the steersman instantly and intelligibly by quick and short orders, so that the course of the ship could be instantly changed by the steersman in conformity with such orders. With such graduation and numbering of its dial-plate the Moodie device would enable the officer so to communicate his wishes to the steersman, and the steersman so to obey the orders given by the officer. The Clark device, having its dial-plate so graduated and numbered, accomplishes that result; and the result so accomplished by means of such graduating and numbering of the dial-plate is a result of great practical utility.</p> <p>If, upon the facts above stated, the law relating to the patentability of inventions is so that said two devices must be held to be substantially identical, then I find them substantially identical; otherwise not.</p> <p>Of the ten thousand pounds which, in the contract of the Mallory Propeller Company, Limited, with the American Propeller Company, was stipulated to be paid in cash, there was paid to the agents of the American Propeller Company the sum of ¿£1,245 and no more—said payment being on account of the patents and steam launch mentioned in the contract.</p> <p>In the making of this payment of cash no discrimination was made between that part of it which was to be considered as paid on account of the patents and that part which was to be considered as paid on account of the launch; but I find that Gen. Hawley was entitled, as between him and the American Propeller Company, to ten per cent, of the amount paid for the patents and to no part of the amount paid for the launch, and that thereupon Hawley, and Mallory agreed upon the sum of $362.52 as the fair amount due to Hawley out of the total amount of cash paid, which amount so agreed upon was in fact received and retained by him. That settlement was just and fair, and of the total sum of ¿£1,245, $3,625.20 ought to be considered as having -been paid on account of the patents and the rest on account of the launch.</p> <p>Mallory also received as agent of the American Propeller Company, in pursuance of the stipulations contained in the contract with the Mallory Propeller Company, Limited, two hundred and forty shares of the capital stock of that company, which shares were allotted to him as fully paid up shares, and were of the nominal value of fifty pounds each.</p> <p>These shares never had any other than a speculative value, and never any intrinsic value, and the American Propeller Company never derived any benefit from them.</p> <p>Mallory returned to this country early in November, 1878, and on the 9th of November, 1878, at his request, the plaintiff met him at the house of George Mallory in Bridgeport. Vm. H. Mallory then in substance told the plaintiff that he had been unable to sell the Clark patent, because the device had been anticipated in the Moodie patent, and also showed to the plaintiff a copy of the Moodie patent which he had brought from England. At this interview the Clark patent, with the assignments of it, was tendered by Mallory to the plaintiff. He refused to receive them, and left them in the possession of Mallory, who, at the same time, gave him notice that they would be held subject to his order.</p> <p>On the 21st day of April, 1879, Mallory attempted to deliver to the plaintiff a re-assignment of the Clark patent, which re-assignment had been duly prepared and executed in conformity with the provision for such re-assignment contained in the contract, and the delivery thereof would have been made on that day but for the fact that the plaintiff then avoided it. In so avoiding such delivery at that time the plaintiff was not acting in bad faith, but was governed by the purpose of obtaining the advice of counsel upon the question whether he should then receive the delivery of the re-assignment or not. On the following day the re-assignment was put into the hands of the plaintiff by an agent of Mallory. The plaintiff retained the re-assignment until October 27th, 1879, when, at an interview with Mallory on the ears going from Bridgeport to New York, the plaintiff tendered it back again to Mallory, saying in substance that when the document was given to him in April, 1879, he did not know that the patents had been sold or the contract broken, Mallory refused to accept the document, whereupon the plaintiff laid it in his lap and left it there.</p> <p>At the last named interview the plaintiff made demand upon Mallory for the amount due him under the contract, and for the amount due on the bond; and also made demand for a sworn statement of sales in conformity with the terms of the contract; the plaintiff claiming at the time to possess proofs that the patents had been sold. In reply Mallory said in substance that the patents had not all been sold; that a stock company had been formed, but a full sale had not been completed, the plaintiff’s patent not having been sold.</p> <p>At that time Mallory was still the president and general agent of the American Propeller Company, and he did not then or at any subsequent time, as president of the company or otherwise, make to the plaintiff any sworn statement of any sales of any of the patents or cause any other person to make such sworn statement; said Mallory did not then or at any other time pay the plaintiff any amount due him under the contract or bond.</p> <p>On the 30th of October, 1879, and before the commencement of this suit, the plaintiff made demand upon the defendants, George Mallory and I. DeVer Warner, for the amount due him upon the bond, at the same time stating to each of them that he had previously made demand for the amount due upon the bond and contract upon William H. Mallory, and that the latter had upon such demand refused and neglected to pay anything thereon, and that the contract and condition of the bond had been broken; but George Mallory and Warner then refused, and have ever since continued their refusal, to comply with the demand so made upon them; and the plaintiiff has never been paid anything by reason of the contract and bond.</p> <p>Down to the time of the signing of the contract and bond the plaintiff had never heard of the Moodie patent, and had no knowledge or reason to suppose that the Clark patent had been anticipated or was interfered with by any other patent previously issued in the English patent office or elsewhere; but on the contrary he supposed that the Clark patent was valid, and that the device therein described was protected by it and was new and useful.</p> <p>The plaintiff did not make any fraudulent representations or .statements to William H. Mallory, or to either of the defendants, concerning the value, utility, novelty or validity of the Clark patent, or of the subject matter thereof.</p> <p>For some time previous to the execution of the contract negotiations in regard to the sale by the plaintiff of the Clark patent had been carried on between the plaintiff and Mallory, acting in behalf of the American Propeller Company, which negotiations finally resulted in the execution of the eontract. During these negotiations Mallory gave the plaintiff to understand that he did not ask him to warrant or guarantee the validity of the Clark patent, and did not expect him to do it, and desired the plaintiff to obtain the opinion of George Gifford, Esq., a patent lawyer in New York, which opinion, in favor of the validity of the patent, the plaintiff thereupon obtained and délivered to Mallory shortly before the execution of the eontract.</p> <p>T further find that the plaintiff made no express warranty of the value, utility, novelty or validity of the Clark patent to Vm. H. Mallory or to either of the other defendants, unless such express warranty is found by implication in the facts hereinbefore set forth.</p> <p>The Clark patent was originally obtained by William Clark, as the agent of the plaintiff, directly from the English patent office, and was assigned by Clark to the plaintiff on the 4th day of October, 1876.</p> <p>Wm. H. Mallory died on or about the 8th day of November, 1882, and his administrator has duly entered to defend this suit.</p> <p>Upon these facts the case was reserved for the advice of this court.</p>

<p>A negotiable note payable in six months and endorsed by the payees was delivered by the latter to a savings bank as collateral security for a loan previously made, with the following indorsement upon it, signed by the indorsers:—“We hereby acknowledge the receipt of notice of protest on the within note.” Held that the word “ protest ” included all acts necessary to hold indorsers, and that the legal effect of the acknowledgment was to release the bank from all obligation to make demand of payment or give notice of non-payment.</p> <p>Another note delivered to the savings hank at the same time and for the same purpose, was on demand and indorsed as follows:—“Eor value received we guarantee the within note till paid.” Held to he an absolute and unqualified contract of the signers of the guarantee, to pay the note if the- maker did not, without demand on the maker or notice of non-payment.</p> <p>The maker of the note, a manufacturing corporation of which the indorsers and guarantors were stockholders, was solvent at the time the notes were given, and remained so for a year and a half from that time, hut then became insolvent and so remained. The savings bank had taken no legal steps for the collection of the notes, and the other parties had not requested it to do so, or taken any measures themselves for their collection. Held that the savings bank was not to be charged with the loss.</p>

<p>An action for the conversion of personal property was brought four months after the conversion and the converted property attached in the suit. Afterwards a statutory bond was substituted for the attachment, by which the obligors bound themselves that, if the defendant did not pay the judgment that should be recovered, the obligors would pay the value of the property at the time of the attachment, not exceeding the amount of the bond. Afterwards a part of the property was returned by the defendant. In the suit the facts were found by a committee, who reported the value, at the time of its conversion, of the property not returned, and the amount of damage done to the property returned, and judgment was rendered for those sums. In a suit afterwards bi’ought on the bond, to recover the value of the property not returned, it was held that the report of the committee in the original suit was not admissible against the obligors, except for the purpose of showing the fact of the judgment; not being admissible for the purpose of showing the value of- the property at the time of the attachment—(1st) because it found the value at the time of the conversion only, which was four months befoi'e the attachment, and (2d) because the defendants were not parties to that suit and it was therefore res inter alios acta.</p>

<p>The question of negligence is a mixed question of law and fact. Where the court requires of a defendant some act which the law did not require, it is an error of law and can be reviewed. Where the court finds that the defendant failed to do some required act, it is a finding of fact and cannot be reviewed.</p> <p>A railroad company should always be vigilant to prevent accidents, bu' owes no duty, as such, to run its trains so as to prevent accidents to persons unnecessarily and unlawfully ou its tracks.</p> <p>But the law requires of a company that the engineer in charge of a train shall, after the danger of an accident is discovered, do all he can to prevent it.</p> <p>A railroad company is not bound, in the absence cf any statutory requirement, to fence its road in such a way as to keep children from getting upon its tracks.</p> <p>The fact that a child is but seven years of age does not create a duty towards him on the part of the company that would not otherwise have existed. Precautionary measures, having for their object the protection of the public, must as a rule have reference to all classes alike.</p> <p>Combined facts do not make a case of negligence where each fact by itself does not involve a neglect of duty.</p> <p>The care which a plaintiff must have exercised to be free from the imputation of contributory negligence, is reasonable care, which is that degree of care which may reasonably be expected from a person in his situation.</p> <p>On a hearing in damages after demurrer overruled, in a suit for an injury by the defendant’s negligence, the admission of the demurrer has no effect as evidence, but exhausts itself in throwing upon the defendant the burden of proving that he was not guilty of negligence, or that the plaintiff was guilty of contributory negligence; and either may be shown by a mere preponderance of evidence, the question standing, as in any other case, upon the proof alone.</p>

<p>Action to recover possession of real estate; brought to the Court of Common Pleas, and tried to the court before Hall, J. Pacts found and judgment Tendered for the defendant, and appeal by the plaintiff. The case is sufficiently stated in the opinion.</p>

Action for an assault and battery; brought to the Superior Court, and tried to the court before Beardsley, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is sufficiently stated in the opinion.

Action on a bond given upon a license granted to one of the defendants to sell liquor, to secure his compliance with the law; brought by the plaintiff, as treasurer of the county, to the Court of Common Pleas, and tried to the court before Sail, J. Pacts found and judgment rendered for the plaintiff, and appeal by the defendants. The case is fully stated in the opinion.

<p>A testator gave Ms wife the use for life or widowhood of his entire estate. By a codicil he gave $1,000 each to two charitable societies. Held that the latter bequests were not subject to the life estate of the wife, but were to be paid at the usual time.</p> <p>The testator directed that after his wife’s marriage or death his whole estate should “be used at discretion by the acting selectmen of B for the special benefit of the worthy, deserving, poor, white, American, Protestant, Democratic widows and orphans, residing in B, until all is expended.” Held not to be void for uncertainty.</p> <p>The question in such a case is, not whether there are not many persons concerning whom there must be doubts as to their meeting the requirements of the bequest, but whether there are not many concerning whom there can be no doubt as to their meeting them all.</p> <p>The persons holding the office of selectmen of B were joint trustees, in perpetual succession, clothed with power and placed under obligation to select beneficiaries from the classes specified and apply either the income or the principal of the fund, at their discretion, for their relief.</p>

Action for wrongfully entering upon the plaintiff’s land and removing fences thereon; brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas.

Action for entering on the plaintiffs’ land and erecting a fence thereon ; brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas, and tried to the jury before Hall, J. Verdict for the plaintiff, and appeal by the defendants. The case is sufficiently stated in the opinion.

Action to recover for use and occupation of real estate; brought to the Court of Common Pleas. The defendant pleaded a set-off. Tried to the court before Hall, J. Facts found and judgment rendered for the plaintiff. Appeal by the defendant. The case is fully stated in the opinion.

Scire Facias upon a process of foreign attachment; brought to the Court of Common Pleas, and tried before Hall, J. Facts found and judgment rendered for the plaintiff for a part of his demand. Both parties appealed. The case is sufficiently stated in the opinion.

Action to recover possession of real estate and damages; brought to the District Court of the district of Waterbury, and appealed by the defendant from the judgment of that court to the Superior Court. In the latter court the plaintiff moved that the case be erased from the docket, which motion the court (Sanford, J.,) granted. Appeal by the defendant to this court. The case is fully stated in the opinion.

Action by tbe plaintiff as trustee in insolvency of the Farmers and Mechanics’ Association to recover funds claimed to belong to the association; brought to the Superior Court, and tried to the court before Sanford, J. Facts found and judgment rendered for the defendants, and appeal by the plaintiff. The case is sufficiently stated in the opinion.

Complaint under the bastardy act; brought before a justice of the peace by the selectmen of the plaintiff town. The defendant was bound over by the justice to the District Court of the district of Waterbury, which court. (Bradstreet, J.,) found him guilty. He then appealed the case to the Superior Court for New Haven County, which court (Torrance, J.,) affirmed the judgment. The defendant then appealed from the last judgment to this court.

Action against the defendants as selectmen and town clerk of the town of New Haven, for refusing to admit the plaintiff as an elector; brought to the Court of Common Pleas.

Information for an assault with intent to murder; in the Superior Court. Tried to the jury before Stoddard, J. Verdict guilty, and appeal by defendant on the ground of error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action by the plaintiff, a cemetery association organized under-the laws of the state, for the purpose of taking lands for the enlargement of its territory, under the provision of Gen. Statutes, p. 293, sec. 4; brought to the Superior Court. The defendants demurred to the complaint, and the case was reserved for the advice of this court. The case is sufficiently stated in the opinion.

Action for an injunction to prevent the obstruction of a way; brought to the Court of Common Pleas. Facts found and case reserved for advice. The facts are fully stated in the opinion. •

Action for an injury from the bite of a dog; brought to the Court of Common Pleas, and-tried to the court before Studley, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is sufficiently stated in the opinion.

Action for damages for false representations by which the plaintiff lost a lien upon the property of the defendant; brought to the Court of Common Pleas. The defendant demurred to the complaint; the demurrer was overruled, and the case tried to the court on a general denial before Studley, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is sufficiently stated in the opinion.

Action on a warranty of a horse; brought to.the Court of Common Pleas, and tried to the court before Pickett, J. Facts found and judgment rendered for the plaintiff. Appeal by the defendant for error in the rulings of the court. The case is sufficiently stated in the opinion.

Action by the plaintiffs, as a part of the heirs at law of William Johnson, deceased, against the trustee under his will and the beneficiaries under the trust, for an adjudication as to the validity of certain provisions of the will; brought to the Superior Court. Facts found and case reserved for advice. The ease is fully stated in the opinion.

Action to recover for services as attorneys at law; 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.

Suit to set aside a deed, for an injunction, and for damages; brought to the Superior Court. The deed described in the complaint was dated May 81st, 1883, and was executed by Ambrose Todd and Jane R. Todd, his wife, to the defendant Emily C. Munson, their daughter.