Volume 56 — Connecticut Reports

The following facts were found by the court:— Ezra Curtis died testate, October 17th, 1879, leaving surviving him Mary E. Curtis, his wife, and George E. Curtis, his minor son, nine years of age, both of whom are legatees under his will. By his will he appointed James Potter, the appellant, to be his executor. Potter duly qualified as executor and acted as such prior to and during the years •1882 and 1888, and up to the date of the trial of this action.

Action to recover for an injury to property of the plaintiff by fire from a locomotive engine of the defendants; brought originally before a justice of the peace, and, by appeal, to the Superior Court in Windham County.

Suit for the foreclosure of a mortgage j brought to the Superior Court in Hartford County. , The plaintiffs were the surviving partners of the firm of Lewis Brothers & Company and the executors of a deceased partner 5 the defendants were the Hartford Silk Manufacturing Company, a joint stock corporation, Edward A. Freeman, trustee of the corporation in insolvency, George M. Bartholomew and Thomas F. Plunkett, and Charles M. Joslyn, trustee in insolvency of the estate of said…

Action to recover for liquors sold; brought to the Court of Common Pleas of Hartford County, and tried to the jury-before Calhoun, J,, Verdict for the defendant, and appeal by the plaintiffs for errors in the charge of the court. The case is fully stated in the opinion.

Action to recover damages for causing the death of Michael Quinn, the plaintiff’s intestate, by the negligence of the defendants ; brought to the Superior Court in New Haven County. The defendants suffered a default and the case was heard in damages before Stoddard, J. The court found the facts and assessed the damages at $2,500. The defendants appealed.

Suit for a foreclosure of a mortgage of real estate; brought to the Superior Court in New Haven County, and heard before Torrance, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendants. The facts are very complicated, but are sufficiently stated in the opinion to make the points decided by the court easily understood.

Action to recover for a quantity of cotton cloths in the hands of the defendants and which they refused to deliver up on demand; brought to the Superior Court in New London County, and tried to the court before Torrance, J. The court found the following facts :— The Warren Manufacturing Company, the plaintiff, was a manufacturer of cotton cloths. The principal defendant was a bleaching and dyeing company in Norwich in this state.

selectmen of the town of Watertown, to remove the fences and open an old highway; brought to the District Court of Waterbury, and heard before Brad street, <J. Facts found and judgment rendered for the defendants, and appeal by the plaintiff. The case is sufficiently stated in the opinion.

Action to recover a balance claimed by the plaintiff upon a settlement of accounts, and for damages for loss by the plaintiff through the negligent management of her business by the defendant as her agent; brought to the Superior Court in New Haven County, and tried to the court before Stoddard, J. Facts found and judgment rendered for the plaintiff and appeal by the defendant.

Two actions against the defendant, a joint stock corporation, to recover in the former upon sundry notes executed by the agent of the corporation and for goods sold to it, and in the latter for goods sold ; brought to the Superior Court in Hartford County, and tried to the court before Stoddard, J. The controverted facts being the same in both cases, the actions were tried together and one finding of facts made for both.

<p>The statute, Gen. Statutes, p. 383, sec. 25, (materially changed in Revision of 1888, sec. 532,) provided that proceedings in insolvency should dissolve all attachments and uncompleted levies on the property of the debtor made within sixty days next preceding; but that the attaching and levying creditors should be allowed the amount of their legal costs, to be paid before any other claims, if their Claims should be allowed by the commissioners. Held that the attaching and levying creditors had a lien upon the property attached for their legal costs, to be paid by the trustee before the application of the property to any purpose whatever under the insolvent proceedings, if the claims of such creditors should be allowed in whole or in part by the commissioners.</p>

Suit to compel a conveyance of real estate and for damages ; brought to the Superior Court in Fairfield County. The court (Fenn, J.,,) sustained a plea in abatement to the complaint, found the facts thereon, and rendered judgment for the defendant. The plaintiff appealed. The case is sufficiently stated in the opinion.

j Action to recover possession of certain real estate; brought to tbe Superior Court in Fairfield County, and tried to the jury before Sanford, J. Verdict for the plaintiff and appeal by the defendant for error in the rulings of the court. The case is sufficiently stated in the opinion.

Suit to foreclose a judgment lien, brought to the Court of Common Pleas of New London Comity and heard before Grump, J. Thomas Mabbett was made a defendant after the suit came into court, and alone made defense, the defendant Hawkins not appearing. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion.

Action upon two certificates of insurance upon the life of Alice Galliger, held by the plaintiff as assignee; brought to the Superior Court in Hartford County, and tried to the jury before Torrance, J. The certificates were for $1,000 each, were dated July 16th, 1881, and were issued upon an application of the insured in which, in reply to the inquiry, “Are you marrried or single ? ” she answered, “ A widow.” The certificate contained the following provision: “ The…

Action for a breach of contract to transport goods as common carriers; brought to the Superior Court in Litchfield County, and tried to the court before Sanford, J. Facts found, and judgment rendered against the Chicago, Burlington & Quincy Railroad Company, one of the defendants, and in favor of the Pennsylvania Company, the other defendant. The former company and the plaintiffs severally appealed. The case is fully stated in the opinion.

Action on two notes held by the plaintiff as statutory trustee for his wife, the payee of the notes ; brought to the District Court of Waterbury and tried to the court before Bradstreet, J. Judgment for the plaintiff and appeal by the defendant. The case is fully stated in the opinion.

Action upon a note executed by the defendants, who were husband and wife ; brought, by appeal from a justice of the peace, to the Court of Common Pleas of Litchfield County, and reserved on facts found and on a demurrer of the plaintiff to the answer of the defendant Sarah M. Brown, for the advice of this court. The case is fully stated in the opinion.

Action to recover a legacy; brought to the Superior Court in Tolland County. The plaintiff was executor of Abigail B. Chapman, to whom the legacy was given by the will of her father, Alfred Allen. The defendants were his executors. The case was tried to the court before Stoddard, J. The facts were found and judgment rendered for the defendants, and the plaintiff appealed. The case is fully stated in the opinion.

Action for money of the plaintiff received by the defendant and, not accounted for ; brought to the Superior Court in Windham County, and tried to the jury, upon a general denial, before Fenn-, J. The plaintiff claimed the right to recover a large sum ; the jury returned a verdict in his favor for $45.46, and he appealed for error in the exclusion of evidence offered by him. The case is fully stated in the opinion.

Action for an injury to the person <?f the plaintiff, through the negligence of the defendants in the running of a railroad train : brought to the Superior .Court in Windham County. The plaintiff died during the pendency of the suit on the 2d day of September, 1885, and his administratrix in May, 1887, appeared, had the death of the plaintiff suggested on the record, and moved to be allowed to enter and prosecute the suit.

Scire Facias upon a process of foreign attachment; brought to the Court of Common Pleas of the county of Hartford, and tried to the court before Calhoun, J. Facts found and judgment rendered for the plaintiffs and appeal by the defendants. The case is fully stated in the opinion.

Appeal, by the appellants as creditors of the assigned estate of William M. Pemberton, an insolvent, from the allowance by the commissioners on the estate of a large claim in favor of the wife of the insolvent; taken to the Superior Court in New Haven County. Tbe facts were found by a committee and the claim of the wife, with a small reduction, allowed. The appellants appealed from this judgment. The case is fully stated in the opinion.

The statute (Gen. Statutes, 1888, § 693,) provides that in criminal prosecutions before a justice of the peace in which the punishment may be within his jurisdiction, “ if in his opinion the offense is of so aggravated a nature as to require a greater punishment,” the accused shall be bound over to the Superior Court, Held that in binding over in such a case it is not necessary that the justice should certify that in his opinion the offense is of so aggravated a character as…

Prosecution for keeping open a licensed liquor saloon after eleven o’clock at night; brought to the police court of Waterbury and, by appeal of the defendant, to the Superior Court in New Haven County, and tried to the jury in that court before Torrance, J. Verdict “ guilty,” and appeal by the defendant for error in the charge of the court. The case is fully stated in the opinion.

Action for the possession of a piece of land; brought to the Court of Common Pleas of New Haven County, and tried to the court before Doming, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion,

Suit for an injunction ; brought to the Superior Court in New Haven County, and heard before Andrews, J. Facts .found and a perpetual injunction granted and appeal by the defendants. The case is sufficiently stated in the opinion.

Seeley, deceased; taken to the Superior Court in Fairfield County and heard before Andrews, J. Facts found and the decree appealed from reversed, and appeal to this court by the original appellees. The case is fully stated in the opinion.

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

Suit for the foreclosure of a mortgage; brought to the Superior Court in New Haven County. Answer, demurrer to answer, and reservation for advice. The case is fully stated in the opinion.

Prosecution for a violation of an ordinance of the city of Bridgeport; brought before the City Court of that city, and, by appeal of the defendant, to the Superior Court in Fairfield County, and in that court tried to the jury, upon the plea of “ not guilty,” before Sanford, J. The jury returned a verdict of “ guilty ” and the defendant appealed for error in the charge of the court. The case is fully stated in the opinion.

<p>Where a seller warrants a horse to be sound so far as he knows, it Is necessary, in a suit on the warranty, to prove not only that the horse was not sound, but that the defendant knew it.</p> <p>The court is not bound, upon the request of a party, to charge the jury as to the law upon a state of facts that is merely hypothetical.</p> <p>Where the question is as to the ability of a witness to hear a certain sound if if had been made, it is not a ground for a new trial if the witness is allowed to give his opinion that he should have heard it if it had been made, where the distance and all the other circumstances are stated.</p> <p>And held that where a witness was allowed to give such opinion in his examination in chief, and on cross-examination stated all the circumstances fully, the admission of the opinion in the first instance was not a sufficient ground for granting a new trial.</p>

■Amicable submission to the Superior Court in Hartford County, upon- an agreed statement of facts, of the question whether the plaintiffs, receivers of the insolvent Continental Life Insurance Company,' were entitled to demand and take possession of certain securities deposited by the insurance company before its insolvency with the defendant, the treasurer of the state, as security for its policy holders ; reserved for the advice of this court.

<p>Where a testator in his lifetime makes a gift to a person to whom by his will he has given a general legacy, with the intent that it should be a satisfaction of or substitute for the legacy, the gift will operate as an ademption of the legacy.</p> <p>The intent of the testator is the decisive thing in the matter; the assent of the legatee is not necessary.</p> <p>Where a receipt was given by a daughter, who was a general legatee, to her father, for a sum of money “in full of all debts and. demands and all right and interest in and to his estate by will or otherwise,” it was held—</p> <p>1. That it did not affect the case that she was a feme covert.</p> <p>2. Nor that the receipt was in full of all debts and demands as well as of her right to a portion of his estate, and did not show how much of the sum paid was on account of the legacy.</p> <p>A testator gave the residue of his property to a trustee for the benefit of his grandchildren, to be equally divided among them as they should respectively become twenty-five years of age. One grandchild had reached that age before the testator died and another was born six months after the testator’s death. Held—</p> <p>1. That the unborn child was, in contemplation of law, then in existence, and was therefore at the death of the testator one of the grandchildren and took its share with the rest.</p> <p>2. That the case was not affected by the fact that one of the grandchildren had become twenty-five years of age during the life of the testator.</p> <p>3. That in the event of the death of any of the grandchildren before reaching the age of twenty-five years, the heirs of such grandchild would take its share free from the trust and with a right of immediate possession.</p>

Action by the plaintiffs, a corporation, upon a note executed by Philo Brown, since deceased, of whom the defendants were executors; brought to the Superior Court in New Haven County, and tried to the court before Torrance, J. The plaintiffs havingpresented their evidence, the defendants moved for a nonsuit, which was granted by the court; and the court having denied a motion that the nonsuit be set aside, the plaintiffs appealed to this court.

Suit for an injunction against the unlawful detention of the waters of a stream, by the defendant, the owner of an upper mill, to the injury of the plaintiffs, the owners of lower mills on the stream; brought to the Superior Court in Tolland County. The following finding of facts was made by the court.

Suit for a new trial in tlie case of Lewis v. Farrell, 51 Conn., 216, for mispleading and the discovery of new evidence ; brought to the Superior Court in New Haven County. The defendants demurred to the complaint, and the court (Stoddard, *71,) sustained the demurrer and dismissed the complaint. The plaintiffs appealed. The case is sufficiently stated in the opinion.

Action for an account of the proceeds of trust property-sold by the defendant as executor, and for damages for the negligent administration of a trust by the testator; brought to the Superior Court in Hartford County, and heard before JPhelps, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiffs. The case is fully stated in the opinion.

Application to the Superior Court in New Haven County for a mandamus to compel the railroad commissioners to act upon the location by the New Haven & Derby Railroad Company of a new passenger station and freight depot in the city of New Haven. The defendants made answer denying that they had bylaw jurisdiction to act in the matter, and the case was reserved for the advice of this court. The case is fully stated in the opinion.

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

Action for trespass to the person; brought, by appeal from a justice of the peace, to the Court of Common Pleas of Hartford County, and tried to the court before Oalhoun, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is sufficiently stated in the opinion.

Shit for the foreclosure of a lien for materials furnished in the erection of a house and barn for the defendant; brought to the Court of Common Pleas in Fairfield County. The complaint contained two counts.

Action for fraud in the sale of a horse, brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas of Hartford County, and heard by Calhoun, J., on a motion of the defendants for judgment in their favor upon the plaintiff’s replication to their answer. Motion granted and judgment rendered for the defendants, and appeal by the plaintiff. Tlie case is fully stated in the opinion.

Replevin of property claimed to be unlawfully detained by the defendant; brought, by appeal of the defendant from the judgment of a justice of the peace, to the Court of Common Pleas of Litchfield County, and tried to the jury, .on a general denial, before Warner, J. Verdict for the defendant, and appeal by the phi,intiff for error in the admission of evidence. The case is fully stated in the opinion!

Scire Facias upon a process of foreign attachment; brought to the Court of Common Pleas in Fairfield County and tried to the jury before Hall, J. Verdict for the plaintiff, and appeal by the defendant for error in the rulings of the court. The case is fully stated in the opinion.

Action for cutting and carrying away trees upon land of the plaintiff; brought to the Superior Court in New London County and tried to the court before Torrance, J. Facts found and judgment rendered for the defendants, and appeal by the plaintiff. The case is sufficiently stated in. the opinion.

Action to recover a tax claimed to have been illegally collected from the plaintiff by the defendant city; brought, by appeal from a justice of the peace, to the Court of Common Pleas of Hartford Count}7. The following facts were found by the court. On October 1st, 1885, the plaintiff was, and for more than a year had been, a resident and tax-payer of the city of Worcester, in the state of Massachusetts.

Action fop obstructing the plaintiff’s use of a -well on the land of; the defendant; brought, by the defendant’s appeal from the judgment of a justice of the peace, to the Court of Common Pleas in New London County, and tried to the court before Crump, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is sufficiently stated in the opinion.

Action for obstructing a passway which the plaintiff claimed the right to use; brought to the Court of Common Pleas in New Haven County and tried to the court, upon a general denial, before Studley, J. The following facts were found by the court.* On March 10th, 1834, Thomas Smith, who then owned a tract of land in New Haven which included the premises described in the complaint and now occupied by the plaintiff, and the premises of the defendant, including the pass-way…

<p>In a suit to recover the proceeds of the sale of a certain railroad bond which the plaintiff claimed to have placed in the defendant’s hands, it became important for the plaintiff to show that before the transaction ■she had several bonds of that character. The defendant denied that she ever had them, and claimed that her whole story was a fabrication, and a recent one. Held—</p> <p>1. That evidence was admissible that, before any controversy had arisen, she had, on delivering a package to a friend for safe keeping, told her it contained her bonds.</p> <p>2. Also evidence that, four years before, she had told a witness that she had suclí bonds.</p> <p>3. And that it made no difference that the defendant was not present in either case.</p> <p>The plaintiff had testified that she had earned the money invested in the bonds in large part in her business as a milliner and that she had a high class of customers. She was asked the names of her customers, and in answering was allowed to refresh her recollection by referring to a list of them made by her son upon her dictation. Held to be no error.</p>

Action for entering upon land occupied by the plaintiff and destroying a crop of rye thereon; brought to the Court of Common Pleas in New Haven County.

<p>A liorse railroad company was incorporated by the General Assembly upon a petition asking for a charter and specifying streets in the borough of S in which it desired to lay its tracks, and upon a published notice, required by law, that such a petition would be presented, which also specified the streets proposed to be occupied. The General Assembly granted the charter, specifying four terminal points in different quarters of the borough between which the track might be laid and the particular streets through which the road might run, omitting two that the petition had named and adding one that was not named, the section closing as follows:—“ and over and across any highway within any of the points of commencing or termination aforesaid.” Held that the company had no right to lay its track through any street not specified.</p> <p>And held to be no objection to the granting of an injunction against the laying of the track in such a street, that the borough would have the right to remove it by force when laid.</p> <p>Where a party has a remedy by his own act involving the use of force, it does not constitute that adequate remedy at law which excludes equitable relief.</p> <p>The borough, being charged with the duty of keeping its streets in proper condition for public travel and responsible for their being so, was the proper party to apply for an injunction against the unauthorized laying of the track in the streets.</p>

<p>In a suit by a borough for an injunction against the laying of a track in a street by a horse railroad company, which was defended by the company, a holder of some of the bonds of the company, secured by a mortgage- of its property and franchise, claimed the right, on the ground of Ills interest, to appear and be made a party defendant, under Gen. Statutes, § 887 and § 1288, but did not allege that the company was not in good faith making defense pr that there was any necessity for his intervention. Held that he was not entitled to be admitted as a defendant.</p>

<p>It does not seem to be the policy of the law that testimony before a grand jury should be kept secret where public justice or the rights of parties require that it should be made known.</p> <p>However this may be, yet voluntary statements made by an accused person in the grand jury room, where he is allowed to be present to cross-examine the witnesses against him, are not protected, and may be testified to by the grand jurors.</p> <p>Where a person afterwards indicted for murder was summoned as a witness before a coroner upon a general inquiry as to the facts attending the homicide and there told that he could not be compelled to make any statement, but might do so if he chose, and was then questioned by the coroner and made answer to his inquiries, -it was held that his declarations then made were admissible against him on his trial upon the indictment. '</p> <p>The judge in his charge said to the jury:—“ The evidence connecting the prisoner with this crime is circumstantial.” It was a part of the defense that there was no crime and that the death was accidental. Held that it could not be supposed that the jury were misled by this casual expression into the belief that the judge believed that the evidence proved a crime.</p> <p>The judge also told the jury that the evidence was not equivalent to that of two witnesses and therefore was not sufficient to warrant a conviction of murder in the first degree. Held that it could not be supposed that the jury were misled by this instruction into the belief that in the opinion of the court they ought to convict of murder in the second degree.</p> <p>A declaration made by a person while putting an article in a certain place, as to where and of whom he got it the day before, is not admissible as part of the res gesta, being merely a statement of a past transaction.</p>

<p>Action for money had and received, with a garnishment of the Savings Bank of Danbury as having in its hands effects of the defendants; brought to the Superior Court in Fair-field County. The defendants filed a plea to the jurisdiction, which was sustained b}r the court (Andrews, «71), and the complaint dismissed. The plaintiff appealed. The case is fully stated in the opinion.</p>

<p>Where there is a bequest of the whole or of an aliquot part of the residue of an estate to a legatee for life, with remainder over, and no time is fixed by the will for the commencement of the life use, the legatee is entitled to the income from the clear residue, as the same may be at last ascertained, to be computed from the death of the testator.</p> <p>A testator left two fifths of the residue of his estate in trust for his daugh ter O for life, remainder over. Between his death and the order of distribution a little over a year later, the estate earned in the hands of the executors $4,600, which they, supposing it belonged to the estate, added to the principal, and the whole sum was, by order of the probate court, distributed as the residue, two fifths being paid to the trustee for C's life use. The distributors made return of the distribution, which was accepted by the court, and no appeal was taken by C, who was in all respects capable of acting for herself. Held that, the probate court having full jurisdiction, its decree had settled the rights of the parties interested in the residue distributed, and that the part of the income to which O was entitled had become by it merged in and a part of the principal of the trust fund, and that it could not, some time afterwards, be attached by his creditors in the hands of the trustee as still due her.</p> <p>During the year following the death of the testator the executors had paid over to the trustee $25,000 as a part of the‘two fifths of the residue which was to he distributed to the trustee for the life use of C, and this sum had earned in the trustee’s hands, before the distribution, the sum of $431. This sum the trasteé, supposing it to belong to the estate and not to O, had paid to the executors, and it had gone into the residue and been distributed as a part of it, and was embraced in the probate decree before mentioned. Held that, while it had, by force of the probate decree, become merged in the principal of the residue, and had in part gone into the principal of the trust fund, so that O could not reclaim it as between herself and the remaindermen, yet, as it bad been wrongfully paid by the trustee to the executors and not to C, be could not charge it to her in his trust account, but it remained a debt due her from the trustee, which could be attached in his hands by her creditors as still due her.</p> <p>And this although the trustee had, under a statute requirement, presented to the probate court his trust account for that time,-in which he had credited himself with this payment as a proper charge against C, and the account had been accepted by the court.</p> <p>Where an estate has been legally brought into a probate court for settler ment, the court takes jurisdiction o'f it for all purposes until it is settled; but where under a decree of the court property of the estate is distributed to a trustee, the trust estate becomes a distinct matter, and the trustee’s account can be brought into the probate court for a settlement conclusive upon the parties in interest only by notice'to them. The filing in court of an inventory of the trust estate and the rendering of au annual account to the court under Gen. Statutes, § 498, does not supersede the necessity of such notice.</p> <p>A creditor.of Gbrought a suit against her and garnished the trustee. The latter made disclosiue to the officer, under a statute provision, that he was not indebted. The creditor, believing this to be true, and with no knowledge at the time of the facts upon which an indebtedness of the trustee was finally established, presented his claim against her insolvent estate’with no acknowledgment of any security held, (as required by Gen. Statutes, § 590,) and it was allowed by the commissioners in full, with no deduction on account of the security. Held that the matter was one for the commissioners to determine, or the Superior Court on an appeal from their action, as one wholly between the creditor and the estate, and that the right of the creditor to his security was not affected by his action in the matter or by that of the commissioners.</p> <p>The creditor had obtained judgment against G in his suit, and had brought an action of scire facias against the trustee upon the garnishment, and afterwards brought an action of debt on the judgment as a step in a proceeding to carry her into insolvency. Held that the law would not regard him as having by bringing the latter suit abandoned his claim under the first one.</p> <p>G had been allowed by the probate court, as the family of the testator, $1,500 for her support during the settlement of the estate—an allowance which was unnecessary if, as now held, she was entitled to the income from her share of the residue from the death of the testator. Held that the allowance rested in the discretion of the' probate court and was wholly a matter for that court to determine, that it could not he reviewed collaterally by the Superior Court, and that G’s right to the income from her share of the residue from the death of the testator could not he affected by it.</p>

<p>The duty of the managers of railroad trains in approaching a grade crossing is primarily and in the highest degree to their passengers and to travelers passing at the crossing. They are under no circumstances required to exercise more than ordinary care towards persons traveling along the highway near the railroad.</p> <p>A train was approaching a grade crossing in the evening, when it was dark and rainy. A highway passed under an intervening bridge and ran for . a long distance parallel with and very near to the railroad. The plaintiff, who was driving a horse of ordinary gentleness .on the highway, and was approaching the bridge from the other side, stopped when near the bridge and listened for the train which he knew would be passing about that time, hut hearing no sound drove under the bridge and along the parallel highway. He had gone but a few rods when the whistle of the locomotive was blown a few rods back of the bridge and continued to he blown as the train passed him. His horse was frightened by the whistle and ran, and he was thrown out and injured. Held that the engineer was not in fault for not using more than ordinary caution in the circumstances to avoid frightening the horses of travelers on the highway.</p> <p>The statute (Gen. Statutes, § 3551), requires that the steam whistle be blown or the bell rung all the way after a train is within eighty rods of a grade crossing. Held that the engineer was not in fault for blowing the whistle when the ringing of the bell would not have frightened horses on the highway, that being a more effective method of warning persons near the grade crossing of the approach of the train.</p> <p>And held that no liability of the railroad company to the plaintiff could grow out of the fact that the engineer did not begin to blow his whistle so far back as the law required, and that the plaintiff, if it had been so blown, would have been warned of the approach of the train in season to have waited in. a safe place for it to pass.</p>

<p>A committee authorized to assess past damages and future compensation for a stream taken by a borough for a water supply, admitted evidence on the part of the mill owner on the stream below, who claimed that his property was injured, as to the profits of his business at the mill during one of the years since the water was taken. Held that the productive capacity of the mill in the reduced state of the stream was a proper subject of inquiry, and that the evidence in question was admissible as tending to show it.</p> <p>And held that the committee properly received evidence of the rental value of the property before the stream was reduced and its rental value since.</p> <p>The opinion of a trier that his judgment was not affected by improper evidence which he received upon the hearing is not reliable and should not be received.</p>

<p>A foreigner could acquire no settlement in this state by commorancy before the act of 1875. (Session Laws 1875, ch. 93, sec. 1.) That act provided that “ every persftn who is not a citizen, who shall reside five years continuously in any town in this state and maintain himself and family, shall gain a settlement therein.” Whether this act was not wholly prospective: Queere.</p> <p>This act was repealed by the act of 1878, (Session Laws, 1878, ch. 94,) which provided that every person who shall have resided in any town four years from August 20th, 1875, may gain a settlement therein. This act was repealed by the act of 1879, so far as it related to foreigners (Session Laws, 1879, ch. 20, sec. 1), and since then there has been no statute in force by which a foreigner can gain a settlement by commorancy.</p> <p>But a foreigner who has been naturalized becomes a citizen, and can acquire a settlement under the act of 1S78 as an inhabitant.</p> <p>The act of 1878, as it appears in Gen. Statutes, § 3288, is somewhat changed ■ in its'phraseology, but the meaning would seem to be the same. But if the revision changed the law it could not affect a settlement already acquired under the act of 1878.</p>

<p>Receivers were appointed for an insolvent life insurance company, and a decree of court was passed, under a statute authorizing it, vesting in them the property of the company and annulling its charter. A suit waspending at the time against the company in which its property had been attached. Held that the dissolution of the company abated the suit and destroyed the attachment lien.</p> <p>Receivers of corporations are authorized by statute to bring suits fin their own names, or in the names of the corporations, to defend all suits brought against either, and to do in their own names, or in the names of the corporations, all things necessary or proper in the execution of their trusts. Held not to be a legislative recognition of the capacity of such corporations to sue and be sued after a decree annulling their charters.</p>

<p>Upon the question whether the plaintiff had been internally injured in the chest, there being no external marks, the following question was asked by the plaintiff’s counsel of a medical expert:—“ In your opinion can or cannot the tissue of the lungs be broken by violent outside pressure, if at the time the lungs are inflated, so as to produce hemorrhage without visible external cause ? ” Held to be no objection to the question that there was no proof that the lungs were inflated at the moment of the injury, that being a matter hardly admitting of proof. The question could only be understood as referring to such inflation as would occur during the regular process of respiration.</p> <p>In examining a medical expert counsel may read questions from a medical book for the purpose of making himself more clearly Understood.</p> <p>In a suit brought by husband and wife for an injury received by the wife through the negligence of the defendants, the judge instructed the jury that, in estimating the damages, they were “to consider the nature and extent of her injuries, her physical and menthl suffering, the expenses of her sickness, the duration of her illness and disability, and any other circumstances tending to prove the direct loss and damage she had sustained from the defendants’ negligence.” Held that, as she was a married woman, the expenses of her sickness would have been incurred by her husband and not by her, and could be sued for only by him, and that it was error to direct the jury to include them in their verdict.</p> <p>And held that the verdict could not be saved by a presumption that the jury included in. their verdict no improper element of damage.</p> <p>Nor by the fact that no claim was made by the plaintiffs to recover for this expense, and no evidence offered with regard to it, and that no request was made by either party for a charge upon the subject.</p> <p>Nor by a .presumption that these expenses were paid otlt of the wife’s sep- ; arate estate; there being no proof that she had any such estate.</p> <p>The instruction being direct and explicit, it could not be presumed that the jury disregarded it.</p>

<p>Where an article is sold with a warranty as to its quality and a condition that the purchaser may return it if it does not correspond with the warranty, the purchaser, in case of a breach of the warranty, is not limited to his right to return the article, but may retain it and sue on the warranty.</p> <p>And where the seller sues for the price he may recoup damages for the breach of the warranty.</p> <p>Xn a suit to recover the price of a machine warranted, the defendant in his answer averred that the plaintiffs warranted it to be in good working order, and that if it proved to be in good working order and suitable for the defendant’s use in his factory he was to pay the plaintiffs $250 for it, but that it proved to be wholly useless for the purpose for which it was purchased. Held that it might reasonably be construed to mean that the machine was warranted to be in good order for the defendant’s work, and that it proved to be wholly useless for that purpose, and that it was a sufficient averment to sustain a recoupment of the defendant’s damage from the breach of the warranty.</p>

<p>In an action for a malicious prosecution, if v probable cause is found to exist, no amount of malice will entitle the plaintiff to a verdict.</p> <p>Malice is inferred by the law from want of probable cause, but the plaintiff need not rely on the implication of malice, but may show express . malice to enhance damages.</p> <p>If the main object of the prosecution was to compel the payment of a debt, or to secure any other private advantage, then, there being want of probable cause, the motive would be sufficient evidence of malice; but if the private advantage was only incidental it would not be evidence of malice.</p> <p>The court charged that probable cause was “ the existence of such facts and circumstances as would excite in a reasonable mind a belief of the guilt of the person charged, of the offence with which he was charged.-’ Held not to be erroneous in not using the term “ impartial ” as well as “reasonable.”</p> <p>A discharge of the plaintiff is essential to his recovery, but it is not proof of want of probable cause, nor of malice.</p> <p>The want of probable cause must be shown by facts and circumstances existing at the time the prosecution was instituted and information which then came to the defendant. He can not be affected by later occurrences or information.</p> <p>An authority to institute “legal proceedings ” is not an authority to institute a criminal prosecution.</p> <p>A corporation succeeded a private partnership in a manufacturing business. Held that it was not bound to receive goods previously sold by an agent of the partnership to the plaintiff upon an agreement that they might be returned if they did not prove satisfactory, and that they could not be charged to the corporation, after its refusal to receive them, against its charge for goods afterwards consigned to him by the corporation.</p> <p>The corporation having procured his arrest for embezzlement of the goods consigned to him, for which he brought an action against it for malicious prosecution, it was held .in that action that evidence of the plaintiff’s transaction with the partnership and of his attempt to return to the corporation the goods bought of the partnership, was not admissible as going to show that he was acting in good faith and that the corporation knew that he was not embezzling the goods consigned to him.</p> <p>Whether a consignee of goods may not be an embezzler of them under Gen. Statutes, § 15S0: Qumre.</p>

<p>The act of 1882 (Gen. Statutes, § 672), which provides that no justice of the peace shall act as such in any civil action, where any person occupying the same office with him or standing in any one of certain personal relations to him, shall have drawn the complaint, does not repeal the act of 1875 on the same subject.</p> <p>The disqualification created by that act renders a judgment passed by a justice so disqualified void.</p> <p>Another statute (Gen. Statutes, §.676), provides that the disqualification may be removed by an agreement of the parties to the suit made in writing in court. The provision of this mode of removing the disqualification excludes all others.</p> <p>A waiver of objection to the 'disqualification by going to trial before the justice with knowledge of its existence, is a different thing from the removal of the disqualification. Such a waiver can have no effect, because the trial of the case by the justice, he having no power to act, is a void proceeding, .and not a mere irregularity.</p>

Petition to the Superior Court in Middlesex County, under Gen. Statutes, § 2356, for an order for the removal of the stakes marking oyster ground occupied by the defendant for planting oysters under a designation of the same to him by a committee of the plaintiff town in 1863 under Gen. Statutes, § 2348, such designation being claimed to have been illegal and to be void because the ground was at the time a natural oyster-bed, which, by § 2370, could not be set out to an…

<p>The plaintiffs agreed to furnish to subscribers an “ illustrated history of the city of New Haven,” which should contain a map of the city, showing ward boundaries, location of streets, parks, cemeteries, churches, public buildings, street railroads,” etc. In a suit against a subscriber for the price it was held—</p> <p>1. That the plaintiffs were bound under tbeir agreement to furnish a map of substantial but not of absolute accuracy.</p> <p>2. That the defendant had a right to introduce in evidence a published map of recognized accuracy for the purpose of comparing the plaintiffs” map with it, and showing that it was not substantially accurate.</p>

Scire eacias against a garnishee upon a process of foreign attachment; brought originally before a justice of the peace, and, Dy appeal of the defendants, to the District Court of Waterbury, and heard in that court before Cowell, J. ■ Facts found and judgment rendered for the defendants, and appeal by the plaintiff. The case is fully stated in the opinion.

Action on a policy of life insurance; brought to the Court of Common Pleas of the county of Hartford, and tried to the jury before Bennett, J. Verdict for the plaintiff, and appeal by the defendants for errors in the charge of the court.

Suit for a partition of real estate; brought to the Superior Court in Middlesex County. The court appointed a committee under the statute relating to partition, (Gen. Statutes, § 1304,) who made and reported to the court a partition of the property. The defendant remonstrated against the acceptance of the report, the plaintiff demurred to the remonstrance, and the court (.Phelps, Ji,) sustained the demurrer, accepted the report and passed a decree establishing the partition.

Action upon bonds of the defendant borough; brought to the Superior Court in Fairfield County, and tried to the jury before Andrews, J. Verdict for the plaintiff and appeal by the defendant. The case is sufficiently stated in the opinion.

Action for a libel; brought to the Superior Court in Hartford County. The defendants, under the name of Hawley, Goodrich & Company, owned and conducted a newspaper in the city of Hartford, in which the matter charged as libelous was published. The complaint was as follows: 1.

Action against the defendant, as sheriff of New London Count}', for the default of his deputy in not having property attached in a suit of the plaintiffs forthcoming to meet the execution issued upon a judgment rendered in their favor in the case ; brought to the Superior Court and tried to the jury before Fenn, J. The plaintiffs’ evidence being in, the defendant moved for a nonsuit, which was granted, and the court having denied the motion of the plaintiffs to set it aside,…

Titus, deceased; taken to the Superior Court in Litchfield County, and heard before Andrews, J. The court made the following finding of facts. Joseph S. Titus died on the 16th day of January, 1884. He left a widow, to whom he was married in 1845.

The executor pleaded in bar of the allowance an agreement of the wife in writing, before marriage, to accept a certain sum then paid her by the husband, in lieu of her statutory share, such an agreement being provided for by the statute. To this plea the appellant demurred. The marriage took place after the act of 1877 (Gen. Statutes, § 628) took effect, and the rights of the parties were governed by that act.

Action for an assault; brought to the Superior Court in Tolland county. The case was heard upon a demurrer of the defendant to a reply of the plaintiff to a plea of the statute of limitations. The case is fully stated in the opinion.