Volume 54 — Connecticut Reports

Complaint by a prosecuting officer of tbe Connecticut Humane Society for cruelty to animals, upon which the defendant was bound over by a justice of the peace to the Superior Court in Tolland County. In that court the defendant demurred to the complaint; the demurrer was overruled, and the case tried to the jury before Andrews, J. Verdict guilty and appeal by the defendant. The ease is fully stated in the opinion.

Action for the foreclosure of a mortgage; brought to the Superior Court in Tolland County, and heard before Loomis, J. Facts found and decree of foreclosure passed. Appeal by the defendants. The case is sufficiently stated in the opinion.

Action to recover money due ; brought by appeal from a justice of the peace to the Court of Common Pleas in Litchfield County, and there tried to the court before War. ner, J. Pacts found and judgment rendered for the defendant. Appeal by the plaintiff. The case is sufficiently stated in the opinion.

Action for an injury from the negligence of the defendant company upon a part of the highway which the company was bound to keep in repairbrought to the Superior Court in Hartford County. The defendant demurred to the complaint; the court (Beardsley, J.,) sustained the demurrer, and rendered judgment for the defendant. The plaintiff appealed. The ease is sufficiently stated in the opinion.

Suit for the construction of a will; brought to the Superior Court in Hartford County, and reserved, upon facts found, for the advice of this court. The case is fully stated in the opinion.

<p>A private right of way by prescription was claimed over what had formerly been a public highway, but had been abandoned and fenced up. Held that the right of way could have been acquired only by a user that was adverse, that the user could not have been adverse while the highway was open to public use, and that therefore there must have been fifteen years of adverse user after the highway had been abandoned and closed up.</p> <p>Action for throwing down a fence on the land of the plaintiff; brought, by appeal from the judgment of 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 plaintiff for error in the charge of the court. The case is fully stated in the opinion.</p>

Suit for advice as to the construction and validity of a bequest; brought by the trustee under the will to the Superior Court in Litchfield County. Facts found and case reserved for advice. The case is stated in the opinion.

Suit for the reformation of a mortgage and for a foreclosure ; brought to the Superior Court in New Haven County. The defendants were Peter R. Carll, the original mortgagor, and George E. Coney, a purchaser of the mortgaged property, who alone made defense. The facts were found and the case reserved for the advice of this court at its next session in Hartford.

Actioh to recover for supplies furnished to a pauper claimed to belong to tbe defendant town j brought to tbe Superior Court in Middlesex County. Facts found by a committee and case reserved for advice. Tbe case is sufficiently stated in tbe opinion.

Action to recover for supplies furnished to a pauper claimed to belong to the defendant town; brought to the Court of Common Pleas of Litchfield County, and tried to the court before Bradstreet, J. Facts found and judgment rendered for the plaintiffs and appeal by the defendants. The case is fully stated in the opinion.

Replevin of goods wrongfully detained; brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas for New London County and tried, upon a plea in abatement, before Mather, J. Facts found and judgment rendered for the defendants. Appeal by the plaintiff. The case is fully stated in the opinion.

Application to the Superior Court to set aside the action of the town of Stonington in annexing a part of the plaintiff school district to the defendant school district. Demurrer to application; demurrer sustained and judgment rendered for the defendant, (Beardsley, J”.,) and appeal by the plaintiff. The case is sufficiently stated in the opinion.

Action to recover possession of land and for damages ; brought to the Court of Common Pleas of Hartford County, and tried to the jury upon a general denial before Calhoun, J. Verdict for the plaintiffs and appeal by the defendant for error in the rulings and charge of the court. The case is fully stated in the opinion.

Amicable submission, upon au agreed statement of facts, to tlie Superior Court in Fairfield County; reserved for the advice of this court. The case is fully stated in the opinion.

Action to recover for work done; brought to the Court of Common Pleas in Fairfield County and tried before Hall, J,Facts found and judgment rendered for the plaintiff and appeal by the defendants. The case is sufficiently stated in the opinion.

Suit for an injunction against the removal of trees and fences and the appropriation of land for a highway; brought to the Court of Common Pleas of Hartford County, and heard before Oalhoun, J. The judgment rendered embraced the following finding:— The court, having heard the parties, finds the issues for the plaintiff, except as to the western boundary of the land described in said complaint, and also finds that the plaintiff is the owner in fee simple, free from any public…

The application was made to the Superior Court in Fairfield County and, upon an answer filed by the defendants, was heard before Sanford, JThe plaintiff’s evidence being in, the defendants moved for a non-suit, which was granted by the court; and on the denial of a motion to set it aside, the plaintiff appealed to this court. The case is sufficiently stated in the opinion.

Replevin for a pair of horses, a double harness, a hack, a pair of blankets and a whip; brought to the Court of Common Pleas of New Haven County. The defendants pleaded a general denial, and that the property was that of one Phillips, and had been attached by them as his.

Action to recover the price of certain land sold, for which sundry promissory notes had been given; brought to the Superior Court in Hew Haven County.

Action to recover money expended in the support of a pauper claimed to belong to the defendant town; brought to the Court of Common Pleas in Hartford County, and heard before Calhoun, J. Facts found and judgment rendered for the plaintiff and appeal by the defendant. The case is fully stated in the opinion.

Complaint for the sale, and the offering and keeping for sale, of intoxicating liquors; brought, by the appeal of the defendant from the judgment of a justice of the peace, to the Superior Court in New Haven County, and tried to the jury in that court before Andrews, J. There were four counts in the complaint. The jury rendered a general verdict of guilty; and the defendant appealed to this court for error in the rulings and charge of the court.

<p>The defendant agreed in writing to sell the plaintiff a lot with a dwelling house thereon “and the use of the sewer through the grantor’s adjoining land to the Church street sewer.” Soon after a deed was executed by the defendant and delivered to the plaintiff, which contained only the following provision as to the sewer :—“ Reserving to myself and my heirs and assigns the right to connect sewer pipes with the sewer now leading from said described premises through my adjoining land to Church street.” The plaintiff, supposing that the deed secured to him the right to the use of the sewer, accepted it and paid the defendant the price agreed for the lot conveyed. In an action afterwards brought by him for a breach of the contract in not conveying to him the sewer right, it was held—1. That the deed did not convey such right. 2. That the plaintiff’s acceptance of the deed, being made under a mistake as to its effect, did not conclude him.</p> <p>The mistake, though as to the legal effect of the deed, was yet essentially a mistake of fact.</p> <p>The defendant owned the adjoining lot, through which the sewer ran, in common with another person, who knew of the existence of the sewer and of the contract with and deed to the plaintiff, and made no objection thereto. The two tenants in common afterwards conveyed the property to O, who soon after conveyed it to C, who built a house on the lot and destroyed the sewer. Held that if the other tenant in common would have been himself estopped from denying the plaintiff’s right to the use of the sewer, yet his grantee would not be estopped.</p> <p>The deed to O and that of O to C, contained the following provision as to the sewer:—“ Together with the right to connect sewer pipes with the sewer now leading from said B’s [the plaintiff’s] land to the Church street sewer.” Also:—“And said premises are conveyed subject to such rights, if any, as said B has to maintain a sewer across said premises.” Held that nothing was conveyed to the plaintiff by these provisions.</p>

<p>Where a creditor holds a mortgage on real estate and obtains a judgment lien on other real estate of the mortgage debtor for the same debt, there is no rule of equity which will prevent his tailing a general decree of foreclosure on the mortgage and judgment lien at the same time.</p> <p>The statute of 1878 (Session Laws of 1878, ch. 129, sec. 2,) which provides for the appraisal of mortgaged property where on a foreclosure the mortgage becomes absolute, and for the recovery in a later suit oí only the balance of the debt above the value of the property taken by the foreclosure, does not apply to the case.</p>

<p>On an appeal from a decree of probate approving a will, on tbe ground that tbe will bad been obtained by undue influence, tbe appellant offered in evidence tbe declaration of G, one of tbe legatees, that be and F, (another legatee) “ had got the will fixed as they wanted it.” G and F afterwards testified, for tbe appellees, that they bad used no undue influence. Held that G’s declaration was admissible for two purposes :—as an admission of a fact in issue, by a party to tbe con- • troversy, to affect him ; and to affect bis credibility as a witness.</p> <p>And it did not affect tbe case that it was admitted before be bad testified, as tbe order of testimony was a matter for tbe discretion of tbe court, and tbe same use could be made of tbe declaration after be bad testified as if it bad then been first introduced.</p> <p>F, tbe other legatee, also testified that there bad been no undue influence used. Held that G’s declaration could not in any way affect her or her testimony.</p> <p>The existence of undue influence may be inferred from tbe facts and circumstances of tbe case, even if there be no direct and positive evidence of it. But tbe facts and circumstances ought to be such as to lead justly and reasonably to such a conclusion.</p>

<p>The statute of 1882 (Acts of 1882, chap. 50, see. 4,) provides that on an appeal to this court the judge, at the request of either party giving notice of an appeal, shall make such a finding of the facts as may be necessary for the proper presentation of the questions of law, and that the appeal need not be filed with the clerk of the court until ten days after such finding has been filed. A finding was made by a judge and filed with the clerk which stated that “ on the 2d day of July, 1884, the administrators of A filed with the clerk of the court (the court not being in actual session) their application to be made parties to the action.” Several months later, at. the request of the appellant, the judge amended the finding by striking out the words “ the court not being in actual session.” Held that the amendment was not to be regarded as a filing at that time of the finding with the clerk, and did not operate to give the appellant ten days from that time within which to file his appeal.</p>

<p>Appeal from a probate decree approving the •will of Chloe Rockwell, deceased; taken to the Superior Court in Fair-field County, and tried to the court before Andrews, J. The facts were found, and a residuary bequest to Georgie M. Benedict, and a clause appointing her executrix, were set aside, and the probate of the will otherwise affirmed. She appealed to this court. The case is sufficiently stated in the opinion.</p>

Suit for an injunction against the making and selling, or advertising or offering for sale, a certain kind of printing press, and from using a certain trade-name or trade-mark, and for an account;… Held: and the agreement of the said Calvert B. Cottrell to assume and pay all the debts and liabilities of said firm of every description. “ Second.

<p>A camp-meeting association, chartered for religious, charitable and social purposes, with power to hold, lease and sell real estate and to erect wharves and keep and operate steam, sail and other boats in connection with its camp grounds, purchased a large tract of land for a camp ground and erected a central building upon it, known as the pavilion, two stories in height, the lower story of which was an open hall, used on Sundays exclusively for religious services, and on week days for social gatherings and amusements, for admission to which a small fee was sometimes charged, with a place for the sale of refreshments; the upper story containing lodging rooms which were occupied without charge by the speakers of the association and for a small charge by other visitors; all the receipts from the sale of refreshments, from admission fees, from the lodging rooms and from its boats, going into the general treasury and being used for the general purposes of the association. Held that the building was not exempt from taxation as a church, under Gen. Statutes, p. 154, see. 12.</p> <p>The statute does not intend to exempt any building earning money applicable to secular uses.</p> <p>The association, by instruments in the form of a lease, conveyed numerous lots, for a price paid in advance, to persons who erected cottages thereon. The leases were to the lessees and their heirs and assigns, but were forfeitable on the breach of certain conditions. Held that the title of the lessees was a base or determinable fee, and that the lots and the buildings on them were to be taxed as the property of the lessees and not as that of the association.</p>

<p>A railroad company for the purpose of raising money to pay a large floating indebtedness, issued under legislative authority and sold for cash nineteen thousand shares of preferred stock, dividends on which to the amount of seven per cent, annually were to he paid from the net earnings of the company before any dividends on the common stock, the seven per cent., or any part of it, where not paid by dividends, to accumulate. A general statute provided that no corporation should declare any dividend while its capital was impaired. There had been a large deficiency prior to the issuing of the new stock. Held that a dividend could be made on the preferred stock but of the net earings of the road since the issuing of the same, without regard to the prior deficiency.</p>

Action for an injury from a collision of the defendant’s horse and carriage with the horse and carriage of the plaintiff; brought to the Court of Common Pleas of Fairfield County, and tried to the jury before Sail, J. Yerdict for the defendant and appeal by the plaintiff for error in the charge of the court. The case is sufficiently stated in the opinion.

<p>The 24th amendment of the state constitution prohibits the legislature from increasing the compensation of any public officer during his continuance in office. Held that by continuance in office was meant continuance in office under.one appointment.</p> <p>A city attorney was appointed in 1877 and held the office until July, 1881, when he was re-appointed. Held that he could take the benefit of an increase of compensation allowed by a statute passed before his last appointment.</p> <p>A city ordinance provided that the city attorney should receive a certain salary in lieu of all other compensation. A later statute gave him fees for the trial of cases for the city. Held that as the statute related only to a small portion of the duties of the attorney it could not have been intended as a substitute for the former provision, and was to be regarded as cumulative.</p> <p>And held that the statute was not to be construed as applying only to cases in the local court.</p> <p>Held also that a trial before the railroad commissioners was to be regarded as coming within the provision of the statute.</p>

<p>It is a general rule that the testimony of an accomplice ought to be corroborated as to some fact tending to connect the prisoner with the offense; but the testimony of an accomplice maybe so strong and convincing as to justify a verdict of guilty without corroboration.</p> <p>The testimony of an accomplice had been corroborated as to important facts connecting the prisoner with the offense. Held that evidence was admissible corroborating his testimony as to minor facts not connecting the prisoner with the offense, his credibility as to his entire testimony being a matter for the jury to determine.</p> <p>The judge in his charge to the jury said:—The testimony of the accomplice comes to you under such circumstances as to call for the most careful scrutiny. As a general rule it is unsafe to convict upon such testimony alone. It ought to be corroborated in material facts connecting the prisoner with the crime; but the degree of credit to be given to his testimony and the amount of corroboration necessary to render it satisfactory, are matters to be considered and determined by the jury. They have the right upon his naked testimony to find a verdict of guilty, but ought never to do so unless such evidence is so clear, strong and convincing that it removes every reasonable doubt from their minds. But taking this to be the rule, the state claims that there is no occasion for its application in the present case, because the witness has been corroborated as to material facts. The judge then called their attention to the corroboration claimed. Held that the fair import of the whole charge was, that if the jury, after making due allowance for the suspicious circumstances under which the testimony was given, were fully convinced of the prisoner’s guilt, they might return a verdict of guilty; that the charge made it clear to them that the testimony of the accomplice was not to be weighed in the same scales with that of an ordinary witness; and that, if the charge taken by itself was open to question, yet as there was confirming evidence sufficient for the jury to find that there was corroboration as to material facts, the jury could not have been misled by it.</p>

Action -upon a policy of life insurance; brought to the Court of Common Pleas of Hartford County, and reserved, on the plaintiff’s demurrer to the defendant’s answer, for the advice of this court. The case is fully stated in the opinion.

Action to recover for supplies furnished to paupers claimed to belong to the defendant town; brought to the Court of Common Pleas of Litchfield County, and tried to the court before Warner, J. Pacts found and judgment rendered for the defendant. Appeal by the plaintiff. The case is fully stated in the opinion.

The court (Stoddard, J”.,) reversed the first decree and affirmed the others, and the appellants appealed to this court. Held: under the statute providing for the appointment of guardians by the court of probate, that if a minor of lawful age shall select as guardian a proper person in the judgment of the court of probate, the judge has no discretion in the matter, but it is his duty to approve such choice, and make the appointment accordingly. 2.

Action for an account and for the recovery of the amount found due ; brought to the Superior Court in New Haven County. The only question in the case arose upon an item claimed by the defendant in his account. Facts found and case reserved for advice. The facts are sufficiently stated in the opinion.

<p>Action upon a contract for compensation for legal services ; brought to the City Court of tbe city of New Haven, and heard before Pickett, Acting Judge. Facts found and judgment rendered for the plaintiff and another party admitted as a co-plaintiff. The defendant appealed. The case is fully stated in the opinion.</p>

<p>Where privileges of a public nature are also beneficial to private property, as in the case of land upon a public square, the enjoyment of them will be protected against encroachments by injunction.</p> <p>And the owner of such private property is a proper party complainant in applying for such injunction. He is not a mere volunteer assuming to protect the rights of the public, but is seeking to protect his own private interests.</p> <p>And it makes no difference that it is the statutory duty of the town authorities to remove nuisances and encroachments, and that he could apply to them.</p> <p>That remedy is not the adequate remedy at law yhieh excludes equitable jurisdiction.</p> <p>Adequate remedy at law means a complete remedy to which the complainant may resort at will and which he can control.</p>

<p>Proof that, at the time a note was executed and put into the hands of the payee, an agreement was made that it should be returned to the maker upon, a certain day if he should then demand it, does not contradict or attempt to vary the terms of the note, and the agreement may be proved by parol evidence.</p> <p>A delivery of a legal obligation made upon condition does not become a legal delivery until the condition is fulfilled. Such a condition does not in any manner conflict with the terms of the obligation, and an observance of it is essential to the validity of the obligation.</p>

Action for breach of a warranty of the condition of certain apples sold, and for false representations with regard to them; brought to the City Court of the city of New Haven. Plea in abatement of the pendency of another suit for the same cause of action; plea sustained, and judgment for the defendant, (Pickett, J.') Appeal by the plaintiff. The case is fully stated in the opinion.

Action for a libel; brought to tbe Superior Court in Hartford County. The case is tbe same one reported in 53 Conn. R., p. 43, except that tbe case as it then stood was an action brought by William Donaghue and Edward Donaghue as joint plaintiffs. When it went back for a new trial the complaint was amended by dropping tbe name of Edward Donagbue as a plaintiff, leaving William Donagbue as the sole plaintiff.

<p>Notes were made by one of two partners, indorsed by the other, discounted at a bank, and the proceeds placed to the credit of the firm. The firm having gone into insolvency the question arose upon a claim of the bank upon its estate, whether the firm was indebted on the notes or only the individual partners, the trustee in insolvency claiming that the maker owed the firm and delivered the notes to it on account of his indebtedness, and the bank that the notes were made in that form for a special reason but were intended as the notes of the firm. The court charged the jury that if the maker was indebted to the firm and made the notes as a means of paying his debt the bank could not recover, that the question was one of fact, that the notes on their face showed an indebtedness of the individual partners and not of the firm and that the burden of proof was on the bank to show that they were intended as a joint obligation of the partners. Held, on an appeal by the trustee, that the charge covered the whole ground, so far as the rights of the estate were concerned, and that the court did not err in refusing to charge that, upon the facts claimed by the trustee, the contract between the bank and the firm was, as a matter of law, a purchase of the notes and not a loan of money by the bank.</p> <p>The judge charged the jury that if the proof preponderated in favor of the plaintiff their verdict should be in his favor, but if they found a preponderance the other way and in favor of the defendant, their verdict should be for the latter. Held, taken by itself, to be erroneous in not instructing the jury how to find if there was an equipoise of proof ; but that it was clear from other parts of the charge that the jury could not have been misled upon the point and that therefore the defendant was not harmed by the error.</p>

<p>The writ of mandamus will not be issued to compel the secretary of a private corporation to allow a stockholder to transfer his stock on the books of the corporation.</p> <p>And as a general rule it will not be issued where the applicant has other adequate remedies.</p>

<p>The tracks of two railroads crossing a city street at grade and the public safety requiring a change, the General Assembly passed an act appointing a board of commissioners with power to adopt some plan for bridging either the street or the tracks and altering the location of either so far as necessary, in its own name to take lands necessary for the purpose, to procure the appointment by the court of appraisers of the property taken, and to apportion the expense among the corporations interested; the property taken to vest in the particular corporation occupying it for its highway or track, and to be paid for before being occupied, and the award of damages, when recorded in com't, to have the effect of a judgment. Held— ■</p> <p>1. That the word “ taken,” in the constitutional provision that “ private property shall not be taken for public use without just compensation therefor,” means the actual assumption by the party taking it of exclusive possession, at the termination and as the result of judicial proceedings.</p> <p>2. That the act in question sufficiently secured compensation to the owner of the land taken in making actual payment of the assessed damages a prerequisite to the passing of any right to it to the corporation taking it.</p> <p>3. That the legislature had power to give to its commissioners a standing in court to ask that land might be subjected to the use of the different corporations interested, and could impose upon each the same obligation in relation thereto that would have resulted from their asking for and receiving the land in their own names.</p> <p>4. That in apportioning the expense to be incurred by the taking of land the commissioners had power to require either of the corporations to pay to either of the others a certain portion of the sum paid by the latter for land taken; and a requirement that the city should pay a portion of the damages assessed for land taken by the railroad companies would not be in conflict with the constitutional prohibition of municipal aid to railroads.</p>

Complaint for selling intoxicating liquors; brought to a justice of the peace, and, by appeal of the defendant, to the Superior Court in Tolland County, and tried to the jury in that court, on the plea of “ not guilty,” before Beardsley, J. The prosecution was brought under the act of 1882, which provides that “ any person who, without a license therefor, shall, by sample, by soliciting or procuring orders or otherAvise, sell any spirituous or intoxicating liquors, * * *…

<p>The statute with regard to foreign attachment (Gen. Statutes, p. 397, sec. 2,) provides for such attachment “ where a debt is due from any person to such defendant.” Held that the word “due” is not used in the restricted sense of “ payable.” There must however be an existing indebtedness.</p> <p>Where there is a condition precedent to the liability there is no indebtedness.</p> <p>P entered into a contract with B by which the latter was to sell for nim licenses to use a patent, which were to be paid for by drafts on New York payable to the order of P, B to receive a commission on sales within ten days after P should receive payment, which commission was to be in full of all his services and expenses. B sold licenses to a party who was to pay for them in three installments, each by a draft on New York, in three, six and nine months. The first installment had fallen due and been paid and B’s share paid him out of the money. Before the next installment fell due or any draft had been given for it, P was factorized as the debtor of B. Held that there was no existing indebtedness that could he taken by foreign attachment.</p>

Replevin for sundry articles of bousebold furniture; brought to the Court of Common Pleas in Hew London County. A plea in abatement that there was not a proper affidavit attached to the writ was overruled by the court, and the case tried to the court upon a general denial before Mather, J. Facts found and judgment rendered in favor of the defendant Ellen E. Poland and against the defendant Orrin Poland. The latter appealed to this court.

Replevin for twenty gallons of cider brandy; brought, by appeal from a justice of the peace, to the Court of Common Pleas in Fairfield County, and tried to the court before Hall., J. Facts found and judgment rendered for the defendant. Appeal by the plaintiff. The case is fully stated in the opinion.

Pacts found, and the decree first mentioned reversed, and no action had on the other. Both parties appealed. The case is fully stated in the opinion.

Action to recover money on an account stated; brought to the Court of Common Pleas in New London County, and tried to the court before Mather, J. Facts found and judgment rendered for the plaintiff. The defendant appealed. The case is sufficiently stated in the opinion.

Suit for tbe reformation of a deed; brought to the Superior Court in the county of Fairfield. Facts found and case reserved for advice. The ease is sufficiently stated in the opinion.

Action for trespass to land; brought to the Court of Common Pleas in Fairfield County. Facts found and case reserved for advice. The general principles laid down by the court will be sufficiently understood from the opinion ; the special facts could not be understood without a map.

Suit for the removal of a cloud, from a title; brought to thé Superior Court in Tolland County. Facts found and case reserved for advice. The case is fully stated in the opinion.

Action upon four acceptances; brought to the Superior Court in Fairfield County. The case was referred to a committee by whom the following facts were found :— On the 16th day of March, 1877, A. B. Stockwell drew upon the Howe Machine Company, the defendant, four drafts, viz.: One for $10,000 gold; one other for $10,000 gold; one other for $10,000 gold; and one other for $15,000 gold. All the drafts were made payable at ninety days’ sight.

Action upon an acceptance; brought to the Superior Court in Fairfield County. The case, with the next preceding one of The Credit Company v. The Howe Machine Company, was referred to a committee, and beard with that case, and the facts common to both were embodied in a single finding, which is given in full in the report of that case.

Replevin for goods wrongfully detained; brought to the Court of Common Pleas in New Haven County and tried to the court before Studley, J. Facts found and judgment rendered for the defendants. Appeal by the plaintiffs. The case is sufficiently stated in the opinion.

Action on a bond; brought to the Court of Common Pleas in New Haven County. Complaint demurred to, and ease reserved on the demurrer for the advice of this court. The case is fully stated in the opinion.

<p>Words are actionable per se which, impute the commission of crimes involving moral turpitude, although they are not denominated infamous.</p> <p>To charge another with fornication is slanderous per se.</p> <p>Where, in an action for slander, the court struck out certain allegations of the defendant’s second defense, but the same matters could have been proved under his first defense, which was a general denial, and no evidence was rendered inadmissible in his favor nor admissible against him that would not have been under the first defense, it was held to be no error.</p> <p>Where the court refused to strike out certain allegations of the complaint, the truth of which the defendant, by his answer previously filed, had either fully or substantially admitted, it was held to be no error.</p> <p>Where the defendant was charged with having slanderously imputed to the plaintiff the paternity of a certain illegitimate child, it was held that a written agreement entered into secretly by the defendant with the selectmen of the town, for the payment of the expense of supporting the child, and which the court regarded as not of the nature of a compromise, was admissible as tending to prove that the defendant himself was the father of the child.</p> <p>The question whether damages are excessive can be considered only when the whole evidence is brought up on the appeal.</p>

Action to recover taxes; brought to the Superior Court in Hartford County, and tried to the court before Andrews, J. Facts found and judgment rendered for the plaintiff. The defendant appealed. The case is fully stated in the opinion.

<p>Shit for an injunction against the payment by the defenriant city of a sum of money, under a vote of the common council of the city, as compensation to one of its standing committees; brought to the Court of Common Pleas of the county of Hartford. The defendant filed an answer, to which the plaintiff demurred, and the ease was reserved upon the pleadings for the advice of this court. The case is fully stated in the opinion.</p>

<p>A receipt in full, given upon the part payment of a debt, in the absence of any impeachment of it for fraud or mistake, is valid and a discharge of the entire debt.</p> <p>Where, upon part payment of a debt, a receipt in full is given for the purpose of aiding the debtor to settle more favorably with his other creditors and on his promise to pay the balance, the creditor cannot avail himself of these facts to set aside the receipt.</p>

Action for the destruction of fences and trees upon the land of the plaintiff near the railroad of the defendant company by fire communicated by the locomotive of the defendants; brought before a justice of the peace, and, by appeal, to the Court of Common Pleas of Litchfield County, and tried to the jury before Warner, J. The action was founded upon the following statute, enacted in 1881:— “ Where any injury is done to' a building or other property of any person or…

Amicable submission to the Superior Court in Hartford County of a question as to the construction of a will; reserved for the advice of this court. The case is fully stated in the opinion.

<p>The Connecticut Central Railroad Company, in 1875, under authority of its charter, made a mortgage to the state treasurer of all its estate present and to be acquired, to secure an issue of coupon bonds payable in 1895, but to become due at the election of the holder six months after default in the payment of the interest coupons. The New York & New England Eailroad Company, which owned a connecting road, in 1880 took a lease of the road and all its property, the lease to run until 1895, and in place of paying rent the lessee was to apply the net income from the use of the road to the payment of the interest coupons. Soon after taking the lease the lessee became the owner of all the bonds. Upon a suit brought by the state treasurer, as trustee for the bondholders, for a foreclosure of the mortgage, upon an alleged default in the payment of the interest coupons, it was held—1. That there had been no default if the net receipts from the road had been sufficient to pay the interest coupons—2. That in accounting for these receipts the New York & New England Eailroad Company was bound to account for and apply the net receipts from this road by itself, and had no right to pro-rate them with its receipts upon its own road upon the entire mileage.</p> <p>And held that the matter was not affected by the lease, since by it the lessee had agreed to do only what as a mortgagee in possession it would have been bound to do.</p> <p>Also that it did not affect the matter that the lease conveyed all right that the lessor had or might acquire in certain terminal advantages and connecting roads, since the mortgage itself covered future acquired rights, and the lease itself provided for the deducting of the expenses incurred on account of those connections and advantages from the gross earnings of the leased road.</p> <p>The foreclosure suit was brought by the state treasurer as trustee for the bondholders at the request and for the benefit of the New York & New England Eailroad Company, and that company was brought in as a co-defendant. Held that, as that company held all the bonds, it was to be regarded as really the plaintiff, and that the whole question of accounting was to be treated as if it was so.</p> <p>And the suit having been brought at its request and for its benefit, the company did not stand in a position to take advantage of a provision of the lease for an arbitration m case of any disagreement between the parties.</p> <p>But it is well settled that such an agreement to submit to arbitration will not be held valid where its effect is to oust the court of jurisdiction.</p> <p>A mortgagee in possession, whether the possession has been acquired by actual entry or by attornment of tenants, is bound to apply the rents and profits in discharge of the debt and can be compelled to account for them.</p> <p>And an equitable mortgagee stands in the same position, as does also an assignee of the mortgagee.</p>

<p>The plaintiffs had held a policy of insurance of the defendants upon a quantity of merchandise, and on the policy expiring applied to the defendants for a renewal policy to he on the same terms with the expiring one, which the defendants promised to give. The defendants wrote and delivered to them a new policy and received the premium. The plaintiffs, supposing it to be on the same terms with the first, did not examine it until after the loss of the property by fire three months later, when, on reading it, they discovered an important variance from the former policy, materially affecting their right of recovery. If they had known of the change they would not have accepted the policy. In a suit for the reformation of the policy and a recovery of what would become due under it, it was held that the plaintiffs could not be regarded as guilty of laches in not examining the policy and applying earlier for its correction, since they had a right to believe it to be in all essential respects like the former one.</p> <p>The defendants, having promised that the new policy should be on the same terms with the first one, were not in a position to charge the plaintiffs with neglect in not discovering that it was not so.</p> <p>Ho 'written contract is beyond the reach of a court of equity for the purpose of reforming it, if the prayer for relief is presented in due season.</p> <p>There is of course a strong presumption in favor of the written agreement over a mere oral one by which it is sought to be corrected, and the prayer for relief in such a case must be supported by overwhelming evidence or he denied.</p>

<p>A testator gave his property to a son, a grandson, and two granddaughters, with a provision that if any of the legatees should die without issue the share of such decedent should go to certain others. Held to mean a dying without issue in the lifetime of the testator, and that the legatees surviving the testator took an absolute estate in the property given.</p>

<p>The statute (General Statutes, p. 233, sec. 16,) provides that persons authorized to repair highways may make water courses, where necessary, to draw off the water from the highway upon the adjoining land; a later statute (Acts of 1881, ch. 65,) providing that it shall be so done as to cause the least damage and that the water shall .not be discharged into any door-yard or enclosure for storage or sale of merchandise. Held that municipal corporations, so long as their acts are kept within the authority of the statute, are not liable for the damage done to such adjoining land by the water turned upon it.</p> <p>And independently of the statute, since such corporations are required by law to construct and repair their highways, they would not be liable for the damage done by such acts, so long as no wanton or unnecessary damage was done, and they were not guilty of negligence in causing the damage.</p> <p>In an action for damage done by such acts the special facts which show that.the acts were not justifiable must appear in the complaint.</p>

House, deceased, in disallowing a claim presented against the estate by the appellant as assignee of Milo W. Pember; brought to the Superior Court in Hartford County, and heard before Andrews, J. Facts found and judgment rendered for the appellee, and appeal by the original appellant. The case is sufficiently stated in the opinion.

<p>William Rogers, for twenty-five years before Ms death in 1873, had a valuable reputation in the market as a manufacturer of silver-plated ware. A son of the same name acquired skill under him in the same manufacture, and since 1864 had had a valuable independent reputation in the market as a manufacturer of the same goods. In 1878 the second William Rogers made a contract with the defendant corporation by which it was agreed that he should exercise his skill in superintending their manufacture of silver-plated ware, and direct as to its quality and style, and allow his name to be stamped thereon and defend its use; in consideration of which he was to receive a commission upon sales. The plaintiff corporation had since 1872 been engaged in the manufacture of silver-plated ware, and used sundry trade-marks, of which the name “William Rogers” was the principal part, claiming to own the exclusive right to such stamps by the agreement of the first William Rogers and by long-cont; ued use. In a suit brought by the last-mentioned company against the other for an injunction against the use of the name “ William Rogers ” as a trade-mark, it was held:—</p> <p>1. That the second William Rogers had the right to use his name as the important part of his trade-mark so long as it was accompanied with devices to distinguish it from the trade-marks of the plaintiffs, and was not used for the purpose of misleading purchasers, although purchasers who took note only of the words “ William Rogers,” or were not familiar with the stamps of the plaintiffs, were liable to be misled.</p> <p>2. That under the arrangement by which the goods were manufactured by the defendant corporation under the superintendence of the second William Rogers, and with an interest on his part in the manufacture and sale, they had a right to use the name of William Rogers in their trade-mark in the same manner that he could have done if he had been the direct manufacturer.</p> <p>When the second bearer of a name which has become the distinguishing part of a trade-mark used by another manufacturer, uses the same name as a part of his own trade-mark, with proper distinguishing devices, it is not a sufficient reason for enjoining the latter against the use of the name, that the goods of both manufacturers become known in the market by the same name. He is not to be injuriously affected by any use the public may make of a mark which the law allows him to use.</p> <p>If purchasers who will take note of nothing but the name upon the trademark are misled, and there is consequent loss to either of the parties entitled to use the name, it must be borne as a consequence of the act of taking the name as a trade-mark.</p>

<p>A railroad was carried over a street in a borough by a bridge, which was built at a height above the street directed by the borough and approved by the railroad commissioners. Afterwards the road-bed was raised fourteen inches, in part from natural causes and in part from the placing of gravel thereon by the borough. The plaintiff, in passing under the.bridge upon a load, was injured, without negligence on his part, by his head striking an iron truss of the bridge. The railroad company was found to have been guilty of no negligence, but the borough to have been negligent in causing or permitting the road-bed to be filled up till the space under the bridge was insufficient. Held that the borough was liable for the injury, and that there was no liability on the part of the railroad company.</p> <p>The railroad company was clearly not bound to raise the bridge from year to year as the street was raised, and was not bound to remove the earth and gravel placed there by the borough. The borough alone could make repairs, and it alone was responsible for doing it improperly.</p> <p>There is no law that fixes the height of railroad bridges over highways. It should be'sufficient to reasonably accommodate the public travel, and what is reasonable must depend in some measure upon the circumstances of each case.</p> <p>Where the railroad company, its engineers, the railroad commissioners, and the borough within which the highway lay, regarded the height of the bridge sufficient when made, and the injury was attributable wholly to the raising of the road-bed below, it was held that the court below was justified in finding that the railroad company had been guilty of no negligence in the original construction of the bridge.</p> <p>The statute (Gen. Statutes, p. 324, sec. 30) provides that railroad companies at all crossings of highways shall make and maintain such bridges, embankments and approaches as the convenience and safety of the public travel on the highway may require. Held that this statute imposed no duty upon the railroad company, when the bridge was once properly made, to maintain the highway in such condition as should prevent the bridge from interfering with public travel.</p> <p>The existence of a railroad interfering with a highway, although the company may have done all that is required of them by statute, will often impose additional burdens upon towns in maintaining highways, but this expense the towns may reasonably be required to bear.</p> <p>The statute (Gen. Statutes, p. 232, sec. 10) provides that when an injury is caused by a structure legally placed on a highway by a railway company, the company, and not the party bound to keep the road in repair, shall be liable therefor. Held not intended to apply to a case Where the structure was a bridge over the highway, and the injury resulted wholly from the negligence of the party bound to keep the highway below it in repair.</p>