Volume 58 — Connecticut Reports

Action for the alienation by the defendant of the affections of the plaintiff’s husband; brought to the Superior Court in New Haven County. The declaratory part of the complaint was as follows:— 1. That the plaintiff was and is the wife of Enos Foot, of the town of New Haven, and in 1872, and for many years previous thereto, she was living happily with her said husband at New Haven as his wife. 2.

Suit for the specific performance of a contract for the purchase of real estate; brought to the Superior Court in Fairfield County and heard before Fenn, J. Facts found and decree for plaintiff passed, and appeal by the defendants. The case is sufficiently stated in the opinion.

Action for goods sold to the defendant and for money paid for or advanced to her, by one Gilbert, who had since become an insolvent debtor and of whose estate in insolvency the plaintiff was trustee; brought to the Superior court in New Haven County. The defendant pleaded a set-off against the whole claim. The following statement of the facts was agreed upon by the parties.

Suit for an interpleader as to the ownership of certain oil paintings in the possession of the plaintiff; brought to the Superior Court in Fairfield County, and heard before Fenn, J. The defendants were Jerome B. Secor, L. F. Curtis and Edward Moran, each of whom filed an answer, setting forth his title. The court found that a part of the pictures belonged to Secor and a part to Curtis, and none of them to Moran, and rendered judgment accordingly. Moran appealed.

Action for damages for the breach of a contract to build a reservoir for the plaintiff company, the claim being that it was constructed in so negligent and unskillful a manner as not to be water-tight, as required by the contract; brought to the Superior Court in New Haven County.

Action for an injury to a horse from a defective condition of a highway in the defendant town by reason of a gully across the same filled with snow and ice; brought to the Court of Common Pleas in New Haven County and heard before Deming, Jon the plaintiff’s demurrer to the defendant’s answer. The answer was held insufficient, the defendant declined to answer further, and the case was heard in damages.

Petition for a new trial for newly-discovered evidence ; brought to the Superior Court in Fairfield County, and heard before Torrance, J. Facts found and petition granted, and appeal by the defendant. The case is sufficiently stated in the opinion. The appellee in this court filed a plea in abatement of the appeal on the ground that the court below had sole and final jurisdiction in the matter and this court no jurisdiction.

Action for an encroachment upon the land of the plaintiff by the erection of a wall thereon by the defendant, and for other injury to the land; brought to the City Court of the city of New Haven, and tried to the jury before Pickett, J. The defendant challenged the array of the jurors, which the court overruled. The defendant then filed a counterclaim, which was heard with the plaintiff’s ease, and a verdict rendered for the plaintiff for one dollar damages.

Scire eacias upon a process of foreign attachment in which the defendant was garnisheed as having in his hands moneys of one Haskell, the debtor of the plaintiffs; brought to the Court of Common Pleas of New London County, and tried to the court before Crump, J. Facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The case is fully stated in the opinion.

Action brought by the plaintiffs, a corporation, upon a note executed by Philo Brown, since deceased; brought to the Superior Court in New Haven County, and tried to the court before Fenn, J. Facts found and judgment rendered for the plaintiffs, and appeal by the defendants. The plaintiffs also filed an appeal, which is not considered by the court.

Application to the Superior Court in New Haven County, for its approval of the location of a cemetery, under Gen. Statutes, § 2655. The court approved the location, and Burton Dickerman, the owner of an ice pond near, who had been admitted as a party respondent and had opposed the application, took an appeal from the judgment. The case is fully stated in the opinion.

Ineormation charging the defendant, as agent of the town of New Haven, with certain fraudulent-acts, under Gen. Statutes, § 1583 ; brought to the City Court of the city of New Haven. The defendant was bound over to the Superior Court, in which court the defendant demurred to the information. Demurrer sustained (Torrance, Jl,) and defendant discharged. Appeal by the State for error in the decision of the court on the demurrer, under Gen. Statutes, § 1687.

Action for wages due the plaintiff’s assignor for labor; brought, by appeal from a justice of the peace, to the Court of Common Pleas for Hartford County, and tried to the court, on a special answer of the defendant, denied by the plaintiff, before Calhoun, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion.

Two suits for foreclosure between the same parties upon two mortgages; brought to the Superior Court in New Haven County, and heard together before Fenn, J. A single finding of the facts was made in the two cases and' a decree urns passed for the plaintiff in both cases, but in one of them for less than the amount claimed. The plaintiff appealed in the last mentioned case, and the Fountain Water Company, a defendant in both cases, appealed in both.

Suit by Henry L. Hotchkiss, as trustee of certain property for Mary W. Burrows, and by the said Mary, and her husband Silas E. Burrows, against the Brainerd Quarry Company, a corporation, and Eliza T. White and her husband Josiah J. White, for an adjudication of the respective rights of the said Mary W. Burrows and the said Eliza T. White in certain shares of the stock of the corporation, for an accounting and for an injunction; brought to the Superior Court in New Haven…

Action to recover possession of real estate; brought to the Superior Court in New Haven County, and tried to the court before Fenn, J. Facts found and judgment rendered for the plaintiffs and appeal by the defendants. The case is fully stated in the opinion.

Action to recover for goods sold; brought to the Court of Common Pleas of New Haven County, and tried to the court, upon a general denial, before Studley, J. Facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The case is sufficiently stated in the opinion.

<p>An appeal from a city assessment by sundry land-owners was pending before a judge of the Superior Court under Gen. Statutes, § 172, when the parties agreed to submit the matter in controversy to arbitration. A submission was drawn by tlie attorneys for the appellants, and signed by both parties, which provided that the arbitrators should “be governed by the laws applicable to such cases and by the rules of practice obtaining in the trial of causes in the Superior Court,” that the award should be “ in writing and returned to the Superior Court,” and that the court should “ render judgment pursuant thereto.” The judge before whom the appeal was pending was made the arbitrator, another judge by agreement being afterwards associated with him. After the case had been fully heard, the counsel on both sides, upon the suggestion of the arbitrators, agreed to amend the submission by adding the following:—“It is further agreed that the arbitrators shall have full power to decide all the matters submitted as they shall consider right and just, and that their judgment shall be final and conclusive upon all the parties.” The counsel for the appellants had no express authority to make tke amendment, and the appellants did not know of it until after the award was published. They then repudiated the action of their counsel and brought a suit to set aside the award. Held—</p> <p>1. That the change made by the amendment was a material one.</p> <p>2. That the submission was to be regarded as made in pais, and not under the authority and direction of the court.</p> <p>3. That the counsel for the appellants had no implied authority, by virtue of their retainer, to make the amendment.</p>

Action to recover possession of a dwelling house and lot; brought to the Superior Court in New Haven County. The defendant filed the following answer:— The premises described in said complaint are part of the estate of Elam Hull, deceased. Said Hull died in 1863, leaving a will, which was duly probated in the probate district of New Haven, and his estate was administered and settled under its provisions.

Act con for the recovery of money at law and for equitable relief; brought to the Superior Court in New Haven County. The plaintiffs were Cornelia M. Benedict, Amelia C. Benedict and Charlotte B. Hill, widow and two of the children of Charles Benedict, deceased. The defendants were the ad ministrators of his estate and minor heirs.

Hawes, deceased; taken to the Superior Court in Fairfield Countj, and heard before Torrance, J. Facts found, and judgment rendered for the appellee, and appeal by the original appellants.

Suit for the construction of the will of Mary E. Holloway; brought to the Superior Court for New London County, and reserved for the advice of this court. The case is fully stated in the opinion.

Action to recover for goods sold by the defendant corporation for the plaintiffs upon a commission; brought to the Superior Court in New Haven County, and tried to the court before Andrews, J. Facts found and judgment rendered for the plaintiffs and appeal by the defendant. The case is sufficiently stated in the opinion.

<p>A testator constituted the residue of his property, which was nearly all personal, a fund, the income from which was to be divided into as many parts as he should leave nephews and nieces, or their representatives, living at his death, and one part paid to each during life; with a gift over of each share of the principal upon the death of the person having the life use of it. The testator was domiciled within the probate district of Ledyard and the probate court of that district assumed jurisdiction of the estate for the purpose of its settlement. The executor lived within the probate district of Norwich, and had the personal property at his place of residence. He had settled his administration account, but no distribution or other division of the property had been made. No trustee was appointed by the will and the executor had not been appointed trustee by the court. Most of the nephews and nieces mentioned in the will resided out of the state and several of them in the state of Pennsylvania. A, who had been appointed by a court in that state a trustee of the property of those residing there, applied to the probate court of the Norwich district, under Gen. Statutes, § 497, for an order giving him the custody of the portions of the property of which his wards had the life use, making the executor a respondent. Such an order was made and the executor appealed from it to the Superior Court, which court affirmed the order of the probate court. On an appeal from this judgment by the executor, it was held—</p> <p>1. That the executor’s liability on his administration bond if he complied with the order, and his liability to a suit by A if he refused to comply with it, gave him a sufficient interest in the matter to enable him to appeal from the probate order.</p> <p>2. That the will intended a single trust, to be managed as such, and the income from it divided among the beneficiaries, and not as many different trusts as there were separate beneficiaries.</p> <p>3. That the estate being legally in settlement in the probate court of the Ledyard district, and not having been divided by distribution or otherwise, that court alone had jurisdiction over an application by a foreign trustee for an order for possession of portions of the property.</p> <p>4. That the fact that the executor resided within the probate district of Norwich, and had the personal property in his possession there, did not give the probate court of that district jurisdiction.</p> <p>5. That it was the duty of the Ledyard probate court to keep the property within its control until the time came for final distribution.</p>

Shit for an injunction, brought to the Superior Court in New Haven County.

Actioh for legal services rendered the defendant as receiver of an insolvent copartnership; brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas of Fairfield County, and heard in that court before Beers, J. Facts found and judgment rendered fo* the defendant, and appeal by the plaintiff. The case is sufficiently stated in the opinion.

upon an agreed statement of the facts. Judgment was rendered for the appellees and an appeal to this court taken by the original appellant. The case is fully stated in the opinion.

<p>The defendant, who had been domiciled in Hand had paid her taxes there, claimed to have removed to S, and to have acquired a domicil there. Held that it was necessai-y for her to prove a residence in S so permanent as to exclude the existence of an intention to make a dorpieil elsewhere, as well as of an intention to return to H.</p> <p>It being admitted that the defendant had gone to S to reside either temporarily or permanently, the question became wholly one of intent: was it her intent to change her domicil from H ?</p> <p>To prove the character of her residence in S the defendant offered a witness who testified that the defendant lived in the house of the witness in that place “just as the rest of her family did.” On cross-examination she was asked whether she did not sometimes get her dinners at a restaurant. Held admissible, both for the purpose of finding what the witness meant by the defendant’s living at her house just as the rest of her family did, and as bearing on the claim of the defendant that she was making £ her home.</p> <p>The defendant produced receipts showing settlements for her board while staying in £, which were drawn by her, but did not show the sums paid, and on cross-examination was asked why the receipts did not state the amounts paid. Held admissible, as tending to show that the receipts wex-e intended to be deceptive and that she did not stay in £ so much time as she claimed.</p> <p>A witness for the defexxdant testified as to her residence in £ and as to how often and under what circxxmstances he had seen her there. Held that . on cross-examination he might be asked about his observation of apex-son who lived in the next house, to test his memory and his habit of observation.</p> <p>The defendant having neglected to return a sworn list of her taxable property in H, the assessors were by law authorized to make a list for her. The list made by them contained the following item—“Insurance stocks, $81,703.” Held ixot to be insufficient by reason of its not specifying the different insui’ance stocks.</p> <p>A statute passed in 1883 provided that ten per cent might be added by the assessors to the lists made by them for persons neglecting to make and return a swoivn list, and for the second year’s neglect twenty per cent, and thirty per cent for the third yeai\ This statute was repealed in 1885, and the addition to be made to the lists in such cases limited to ten per cent. Held not to affect additions of twenty and thirty per cent made by the assessors to lists in 1883 and 1884, for the taxes upon which suit was brought after the repeal of the statute.</p> <p>It is the duty of the court to give the jury such instructions as ax-e cox-rect in law, adapted to the issue, and sufficient for their guidance in the case befoi’e them. If this is done it is immaterial that the instructions asked for are not given.</p>

<p>By section third of the act of 1818, (now section 3311 of Gen. Statutes,) all persons needing relief, who have no settlement in any town in this state, are state paupers, and shall be provided for by the state comptroller for six months after they come into this state; and by section twenty-first of the statute, shall, after the period of six months provided for in the act, be sent back to the town where they resided when they applied for relief, and such town shall be chargeable for their support until they shall have gained a settlement in some other town • provided such paupers shall have had a residence of six months or more in such town when they applied for relief. By the decision in Marlborough v. Chatham, 50 Conn., 554, the six months during which the pauper was entitled to help from the state were held to be the first six months of his pauperism and not of his residence in the state. An act passed in 1885 provided that they should he the first six months of his residence. In a suit by the plaintiff town against the defendant town for supplies furnished to a pauper claimed to be chargeable to the defendant, the plaintiff offered evidence tending to prove that the pauper, who had no settlement in any town, but had lived more than six months in the defendant town, became needy in 1884, and was for a year or more thereafter supported by that town at the house of a friend within the plaintiff town, under an arrangement made by the selectmen of the defendant town, and that in 1888, the pauper needing further aid, which the selectmen of the defendant town refused to furnish, the plaintiff town, in which he had continued to reside, furnished him aid. The plaintiff was nonsuited by the court. Held, in setting aside the non-suit—</p> <p>L That the pauper was a state pauper.</p> <p>2. That his status was fixed by the statute in force when he first applied for relief, and was not affected by the act of 1885.</p> <p>3. That the defendant town would, upon the facts claimed, be chargeable with his support.</p> <p>A nonsuit should not be granted where a plaintiff has introduced substantial evidence in support of his claim, and where the law applicable to the facts as claimed and supported by such evidence, is favorable to the plaintiff.</p>

<p>Complaint under the bastardy act. The defendant was bound over upon it, by a justice of the peace, to the Court of Common Pleas in New Haven County, and the case was tried in that court before Bradstreet, J. Judgment for the plaintiff and appeal by the defendant. Ths case is sufficiently stated in the opinion.</p>

<p>The report of a case in the official reports of the decisions of the Supreme Court of the state, is not admissible to prove that counsel stated in the report to have argued the case, did in fact appear and argue it.</p> <p>It is the proper way, in examining an expert, to state all the particulars upon which his opinion is sought.</p> <p>But the direction of the matter lies within the discretion of the presiding judge.</p>

<p>The defendants, as president, secretary and treasurer of an assessment life insurance company, signed and issued to the plaintiff’s husband, who became a member of the company, a certificate that the company would on his death, in sixty days after proof, pay the plaintiff “a sum received from a death assessment, but not to exceed §1,000.” Certain rules wore appended to the certificate and made a part of the contract, which provided that each member should pay one dollar as an initiation fee and on the death of any member “ an additional assessment of whatever the directory should deem necessary.” Held to involve an implied agreement to make the necessary assessment to meet the death claim promised to be paid.</p> <p>The plaintiff’s complaint set out the contract in full and alleged as a breach of it that the assessment had never been made. Held to be sufficient under chapter 3, section 5, of the Rules under the Practice Act, without an allegation of a promise to make the assessment.</p> <p>By the contract set out it appeared that the defendants signed it respectively as president, secretary and treasurer of the insurance company. Held, on a demurrer to the complaint, that it did not appear as matter of law that the defendants were not personally liable, as the company might be only an unincorporated association, acting under an associate name.</p> <p>The plaintiff could maintain an action at law for a breach of the implied agreement to make the assessment.</p> <p>And the rule of damages would be the maximum sum, in the absence of proof on the part of the defendants that they had made an assessment and had failed to collect that sum.</p>

Suit for an injunction against tbe collection of a judgment; brought to the District Court of Waterbury, and heard, upon a demurrer to the complaint, before Cowell, J. Demurrer overruled, and judgment rendered for the plaintiff, and appeal to this court by the defendants. The case is fully stated in the opinion.

<p>A common law assignment made by a debtor in another state, good by the laws of that state, will convey to the assignee debts due the assignor from persons residing in this state, who are notified of the assignment.</p> <p>It does not affect the case that the assignment was made to a trustee for the benefit of certain preferred creditors, and that it would not have been valid if made in this state.</p>

Suit for divorce and alimony; brought to the Superior Court in Fairfield County and heard before Phelps, J. Facts found and divorce granted, with an order for the payment in money of a sum fixed as alimony. The defendant appealed. The case is fully stated in the opinion.

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

Action by the plaintiff as trustee of certain estate for Georgiana Nichols, under the will of her father Charles Bulkley, against the… Held: and credited it to Mrs. Nichols, and also paid out money to and for her, for insurance, living expenses and otherwise, in checks and other ways, so that the above is not a complete statement of all the transactions between the parties,- but I find generally that if it is lawful for the defendants to charge Mrs. Nichols for money…

Suit for an injunction to restrain the defendant from leaving the employment of the plaintiffs or engaging in other business, in violation of a contract; brought to the Superior Court in Hartford County. The plaintiffs were the Wm. Rogers Manufacturing Company and the Rogers Cutlery Company, both joint stock corporations located in Hartford, and carrying on business under one management, the manager being William H. Watrous.

Action for the taking and conversion of a stock of goods; brought to the Superior Court in New Haven County. The defendant averred in his answer that he had been appointed trustee in insolvency of the property of one McKean, who had been in possession of the goods and carrying on business in the store containing them, and that he took possession of them as such trustee.

Action to recover damages for neglect to perform a contract for personal services, with a count for an indebtedness for the use of the plaintiff’s property; brought to the Superior Court in Hartford County. The case was referred to the state referee, who reported the facts to the court, and found the issue for the plaintiff upon the second count. The defendant remonstrated against the acceptance of the report.

Action to recover the amount of a certain note overdue and interest upon another note not yet due, upon a guaranty of the defendant; brought to the Superior Court in New Haven County, and tried to the court before Fenn, J. Facts found and judgment rendered for the plaintiff for $1,050. Both parties appealed. The case is fully stated in the opinion.

Action for an injury to Sarah L. Gaylord, one of the plaintiffs, from slipping upon ice which had been negligently allowed to accumulate upon a sidewalk of the defendant city; brought to the Court of Common Pleas of Hartford County, and tried to the court before Calhoun, J. Facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The case is fully stated in the opinion.

Action upon a subscription to the capital stock of the plaintiff corporation; brought to the District Court of Waterbury, and heard before Bradstreet, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. ’The case is fully stated in the opinion.

New Haven & Fairfield Cos., Jan. T., 1890. Andrews, C. J., Carpenter, Loomis, Prentice and Thayer, Js..

Action on a recognizance entered into by the defendant and one Godfrey, given in substitution for an attachment of property under Gen. Statutes, §§ 929 to 934; brought to the Superior Court in Fairfield County, and tried to the jury before Phelps, J. Verdict for the defendant and appeal by the plaintiff. The case is sufficiently stated in the opinion, with the exception of the recognizance and the officer’s return upon the original writ, which are not fully recited.

Action upon a note given by the defendant to Jane Taylor, of whose estate the plaintiff was administrator; brought to the Court of Common Pleas of Fairfield County and tried to the court before Curtis, J. Facts found and judgment rendered for the plaintiff against one of the defendants, and appeal by that defendant. The case is fully stated in the opinion.

Action for an assault, brought to the District Court of Waterbury, and tried to the court before Bradstreet, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion.

Suit for the foreclosure of a builders’ lien, brought to the Superior Court in New Haven County and heard before F. B. Ball, J. Facts found and judgment rendered for the defendants, and appeal by the plaintiff. The case is fully stated in the opinion.

Shit for an injunction; brought to the Superior Court in New Haven County. The plaintiffs were citizens and taxpayers of the city of New Haven, and the injunction prayed for was against the demolition and removal of a building on the public green of the city that had formerly been used as' a state house, but the interest of the state in which had bebome vested in the city, by the relinquishment to it by the state in 1876 of all its rights in the building.

Crompton, taken by the appellant as a creditor of the estate; brought to the Superior Court in Hartford County and heard before F. B. Sail, J. The following facts were found by the court. The Home Woolen Mills Company, a corporation organized under the joint stock law of this state and located in Hartford, was carrying on business prior to July, 1887, at Beacon Falls, in this state. George Crompton of Worcester, Massachusetts, was a manufacturer of looms.

Amicable submission upon an agreed statement of facts ; brought to the Superior Court in New Haven County and reserved for the advice of this court. The case is fully stated in the opinion.

P. Halsey; taken to the Superior Court in Hartford County, and heard before Phelps, J. Facts found and'judgment rendered for the appellant and appeal by the original appellee. The case is sufficiently stated in the opinion.

Complaint for the violation of an injunction; brought to the Superior Court in New Haven County, and heard before F. B. Sail, J. Facts found and defendants adjudged guilty of contempt. Appeal by the defendants. The case is fully stated in the opinion.

Action to recover for money advanced to the defendants as stockbrokers for tbe purchase of certain stocks; brought to the Superior Court in Hartford County. The following facts were found by the court. In the year 1887 the plaintiff resided in Enfield and the defendants were engaged in business as brokers in Hartford.

Suit for the foreclosure of a builders’ lien; brought to the Court of Common Pleas of Litchfield County, and heard before Warner, J. The court made a finding of the facts, and granted a decree of foreclosure against the principal defendant, but held that the plaintiffs’ lien was subject to a mortgage held by another of the defendants. The plaintiffs appealed. The ease is fully stated in the opinion.

Suit for the foreclosure of a lien for an assessment of benefits from the construction of a sewer; brought to the District Court of Waterbury. Demurrer to complaint; demurrer sustained, (Bradstreet, J.,') and appeal by the plaintiff. The case is sufficiently stated in the opinion.

Action against the defendant as indorser of sundry notes and bills of exchange; brought to the Superior Court in Tolland County, and tried to the court before Torrance, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion. .

The town of Killingly made an application to the railroad commissioners under the act of 1889, (Session Laws of 1889, ch. 220,) for an alteration of a highway which was crossed at grade by the railroad of the appellants, and which was in existence when the railroad was laid out. The appellants were made parties defendant to the application.

Action for the fraud of the defendant, an attorney at law, in inducing Margaret Sprague, one of the plaintiffs, to settle a suit brought against her, in which he was retained as her counsel; brought to the Superior Court in Fairfield County, and tried to the court before Torrance, J. Facts found and judgment rendered for the plaintiffs, and appeal by1 the defendant. The case is sufficiently stated in the opinion.

Action to recover a sum of money claimed to be due to the plaintiff as the beneficiary of a deceased member of the defendant association, under his contract of membership; brought to the Superior Court in New Haven County, and heard before F. B. Sail, J. Facts found and judgment rendered for the plaintiff to recover only the amount of assessments paid by the member in his lifetime. The plaintiff appealed. The case is fully stated in the opinion.

“ Seymour, June 29th, 1887. “ On the first day of August, 1887, I promise to pay to the order of John King the sum of eighteen dollars, and thereafter the. further sum of eighteen dollars on the first day of each succeeding month until the entire sum of fifteen hundred dollars shall have been paid ; any fraction of said sum to complete said entire sum of fifteen hundred dollars to be paid together with the last payment, with interest at six per cent, per annum payable…