Volume 59 — Connecticut Reports

Action” to recover for the loss of a horse killed by the negligence of the defendant in a collision upon the highway; brought to the Superior Court in New Haven County, and tried to the jury before Andrews, J. The declaratory part of the complaint was as follows :— 1. On the 14th day of January, 1884, the plaintiff was driving a mare attached to a sleigh, along a highway known as the Boulevard, and leading into New Haven from Ham-den. 2.

Bartholomew to be an insolvent debtor, and ordering that a trustee be ap~ pointed to take possession of his property for the benefit of his creditors, and from another decree appointing the trustee ; taken to the Superior Court in Hartford County.

Action upon a policy of fire insurance; brought to the Superior Court in Tolland County, and tried to the jury before Sanford, J. Verdict for the plaintiffs, and appeal by the defendants. The case is fully stated in the opinion. cited as to the right of the defendant to go forward upon the trial below, Rules under Practice Act, ch. 3, sec. 4; Gen. Statutes, § 772; Elwell v. Chamberlin, 31 N. York, 611; Davis v. Mason, 4 Pick., 156.

Information in the nature of a writ of quo warranto, by the attorney for the state in the county of Hartford, at the relation of John Walsh ; brought to the Superior Court in Hartford Count}r. The allegations of the information were as follows:— 1.

Application of a commission appointed by the General Assembly to effect the removal of a grade crossing in the city of Hartford, for a mandamus to compel the defendant to obey its order with regard to the removal of its tracks; made to the Superior Court in Hartford County and heard before Fenn, J. The General Assembly, at its session in 1884, passed sundry resolutions for the removal of a crossing at grade of Asylum street in the city of Hartford and the tracks of the New…

Action to recover an amount due for the construction of two buildings for the defendant; brought to the Superior Court in New Haven County, and heard before Robinson, J. Judgment for the plaintiff and appeal by the defendant for error in overruling a plea in abatement and in the admission of evidence on the trial. The case is fully stated in the opinion.

Suit to foreclose a judgment lien, brought to the Superior Court in Hartford County. The defendants set up a special defense, to which the plaintiffs demurred. The court (Fenn, J.,) sustained the demurrer, found the allegations of the complaint to be true, and granted a decree of foreclosure. The defendants appealed. The case is fully stated in the 'opinion.

Action to recover for clothing sold to the minor son of the defendant; brought to the City Court of the city of New Haven and tried to the court before Pickett, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion. 1 Rev. Swift’s Dig., 40 ; Shelton v. Hoadley, 15 Conn., 535 ; Strong v. Foote, 42 id., 203 ; Mamby v. Scott, Sid., 109 ; 3 Smith’s Lead. Cases, (9th Am. ed.,) 1732, 1740.

Suit for the correction of a deed and to compel the conveyance of certain real estate; brought to the Superior Court in Hartford County. The principal allegations of the complaint were as follows :— 1.

Sura for the recovery of certain insurance stock, and for an account of cash and stock dividends received; brought to the Superior Court in Hartford County.. The plaintiffs were the executors of James H. Averill and the defendants the executors and devisees and legatees of Austin Dunham. The case was heard before Carpenter, J., the facts found and judgment rendered for the plaintiffs. The defendants appealed. The case is fully stated in the opinion. 1.

Amicable submission upon an agreed statement of facts, in the Superior Court in New Haven County; reserved for the advice of this court. The case is fully stated in the opinion. 1. The unvarying rule of law as to the construction of exemptions from taxation forbids the interpretation claimed.

Complaint by the city attorney to the City Court of New Haven, for neglect of the defendant to support his wife and child; brought by appeal of the defendant from the judgment of that court, to the criminal side of the Court of Common Pleas of New Haven County, and reserved for advice on motion of the defendant that the case be erased from the docket and the complaint quashed. The case is fully stated in the opinion.

Suit for the redemption of mortgaged property; brought to the Superior Court in New Haven County, and heard before F. B. Sail, J. Facts found and the case- reserved for advice. The facts are stated in the opinion, except the terms of a bond which is referred to but not recited. The bond was given by Frank Lounsbury to Charles Lounsbury, the plaintiff, was in the penal sum of $8,000, and was dated September 26th, 1888.

Writ of error from the judgment of a justice of the peace in an action brought by the plaintiff in error against the defendant in error to recover a debt for goods sold; brought to the Court of Common Pleas of Fairfield County. The judgment of the justice was in favor of the defendant. The Court of Common Pleas (Curtis, J!,) reversed the judgment, and the defendant in error appealed the case to this court. The case is fully stated in the opinion.

Suit to compel a convejmnce of real estate and for an injunction; brought to the Superior Court in New Haven County and heard before Prentice, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The facts are fully stated in the opinion. 1. Upon the facts we claim that there was a resulting trust in favor of the plaintiff.

In that court a motion was made to strike the appeal from the docket, which the court (Bradstreet, J.,') overruled, and the case was tried to the court on its merits, and judgment rendered for the plaintiff. The defendant appealed to this court. The case is fully stated in the opinion.

,') overruling a remonstrance to the report of a committee, accepting the report and rendering judgment for the plaintiffs. The case is fully stated in the opinion. 1. The railroad commissioners had no power July 13th, 1888, to direct the highway prayed for to be carried over, the railroad, and to determine the length, width and material of the bridge so directed.

Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion.

Action to recover for an injury from a defective highway of the defendant town ; brought to the Superior Court in Windham County. The defendant demurred to the complaint, and the court (Prentice, J.,') held it insufficient and rendered judgment for the defendant. The plaintiff appealed. The case is fully stated in the opinion.

Action for an injury from a defective highway of the defendant town; brought to the Superior Court in Wind-ham County. The defendant demurred to the complaint, and the court (Prentice, J.,) sustained the demurrer and rendered judgment for the defendant. The plaintiff appealed.

Heap ; taken to the Superior Court in Windham County, and tried to the jury before Prentice, J. Verdict for the appellees, and appeal by the appellants for errors in the rulings and charge of the court. The case is fully stated in the opinion. 1.

<p>Action to recover money of the defendant as executrix in her own wrong; brought to the City Court of the city of New London and thence, by appeal of the plaintiff, to the Court of Common Pleas of New London County, and heard in that court before Crump, J. Facts found and judgment rendered for the defendant and appeal by the plaintiff. The case is fully stated in the opinion.</p>

<p>Under the allegation of a “public street or highway duly and legally established,” evidence of a highway by dedication and public acceptance is admissible.</p> <p>The questions of dedication and acceptance are questions of fact. In order to create a public highway by dedication the owner of the land must unequivocally dedicate it to the use of the public as a highway and the public must accept it. This acceptance may be presumed if the public enter upon the land and use it as a highway.</p> <p>A space in close proximity to a railroad Station was, before the railroad was constructed, a part of a highway by dedication. The tracks of the railroad were laid across it, and its ordinary use by the public was greatly reduced, and for thirty-five years its principal use was by persons going to and from the passenger station of the company and teams going to and from its freight station. The railroad company claimed that upon these facts a license must be inferred for such use and an abandonment of the road by the public for general use. The court below found that no such license existed. Held that, this being a question of fact, the finding was conclusive; but that if the question was to be regarded as one of law, there was nothing in the character of the use which compelled the court to infer the license as a matter of law.</p> <p>Non-user of a highway by the public for many years is primó facie evidence of abandonment; but the abandonment must be voluntary and intentional.</p> <p>The court below found that the public had never abandoned the place in question as a highway unless such abandonment must legally be inferred from the facts found. Held that there was nothing in the facts which compelled the court to infer an abandonment as a matter of law.</p>

<p>The plaintiff was a workman of the defendant company and was helping to store ice in a brick building. Ho was stationed for this purpose on a narrow platform fifteen feet above the ground, close by the door into which the ice was passed. At this place the platform was protected by a railing and he was directed by the foreman and warned by a fellow-workman not to stand upon tbe platform at a place where there was no railing, on account of the risk of falling especially as it would become slippery with fragments of the ice. He however stood at a place not protected by tbe railing, and while standing there the brick wall, through the negligence of the defendant company, fell over upon him and knocked him off the platform and seriously injured him. In a suit for damages for the injury it was held that the plaintiff’s negligence in placing himself in a dangerous position could not be regarded as contributing to the actual injury, as that was from a danger that he had not been warned against and had no reason to apprehend.</p> <p>Negligence presupposes a duty of taking care, and this presupposes knowledge or its legal equivalent.</p> <p>And the negligent act or omission must operate as a proximate cause, or one of the proximate causes, and not merely as a condition.</p> <p>It must contribute to the happening of the event which caused the injury. An act or omission which merely increases or adds to the extent of the loss or injury, will not have that effect, though it may affect the amount of damages recovered.</p>

<p>A corporation has power when fully organized to ratify a contract made by its promoters before its organization, when it. is one within the purposes for which the corporation was organized and appears to he a reasonable means for the carrying out of those purposes.</p> <p>The ratification makes the contract in all respects what, it would have been if the requisite power had existed when it was entered into.</p> <p>The promoters of a corporation, previous to its organization, made a contract with the plaintiff for the purchase by him of a right of way for a contemplated railroad, and after the organization the corporation ratified the contract. After the plaintiff had secured the right of way for several miles the directors of the corporation, in consequence of their failure to get authority to build a necessary bridge across a navigable river, abandoned the enterprise and allowed the corporate powers to expire. The plaintiff was to have been paid in stock of the company to bé issued by the directors. In abandoning the enterprise the directors decided to issue no more stock and called in what had been issued. In a suit by the plaintiff to recover for his services under the contract, it was held— .</p> <p>1. That by the ratification of the contract the corporation became hound by it and that the plaintiff was entitled to recover for services under it rendered prior to the incorporation.</p> <p>2. That it was no defence that after failing to get authority to build the bridge it was impracticable to obtain subscriptions to the stock or to raise money to build the road.</p> <p>3. That it did not affect the case that the plaintiff knew that the success of the enterprise depended upon getting authority to build the bridge.</p> <p>4. That the contract being in writing, and specially exempting the plaintiff, as it did, from all duty in the matter of bridges over navigable waters, no parol agreement or understanding inconsistent with it could be shown.</p> <p>In all cases where a plaintiff has been deprived by the act of the defendant of the benefit of a contract with him, he is entitled to recover what he has lost by the defendant's acts. He has been-deprived of his contract and should have in lieu thereof its value.</p> <p>Nominal damages mean no damages at all. They exist only in name and not in amount.</p>

<p>A testator made the following bequest:—“ I give to my cousins Charlotte and Salmon Swift the use of my farm, and to the survivor the farm absolutely; also to them - in common all my household furniture and effects; the bequest being nevertheless subject to and upon the express condition that they remain with and care for me during the remainder of my life and present no bill against my estate.” After several other legacies the will made a bequest of the residue of the estate of every kind and nature Salmon presented a claim against the testator’s estate, which was allowed, but Charlotte presented none, and had no interest in that presented by Salmon. Held—</p> <p>1. That the testator must be regarded as having intended by a violation of the condition, a violation by either or both of the devisees separately and not necessarily by their joint act.</p> <p>2. That the violation of the condition by Salmon caused a forfeiture of his interest in the bequest, but did not affect the interest of Charlotte.</p> <p>3. That as the interest of Salmon was determined by his act, Charlotte at once took the farm in the same manner as if he had died and she had survived.</p> <p>4 That as the personal property was given absolutely to them in common but with no right of survivorship, Charlotte would take only the half given her, and that the half given to Salmon would go into the residue of the estate.</p>

<p>The statute with regard to a builders’ lien, (Gen. Statutes, § 3018,) provides that “every building in the construction of which any person shall have a claim for materials furnished or services rendered shall, with the land on which the same may stand, be subject to the payment of such claim; and said claim shall be a lien on such land, building and appurtenances.” The owners of a farm of three hundred and fifty acres employed the plaintiff to erect extensive barns, stables and other farm buildings upon it. The buildings were adapted to and intended to be used with the entire farm and would be greatly reduced in value if they were detached in ownership from the entire farm. Held that the plaintiff’s lien covered the whole farm.</p> <p>And held that such lien was good not only against the original proprietors of the farm who had procured the erection of the buildings, but against creditors and subsequent incumbrancers.</p> <p>The rule in determining what quantity of land should go with farm buildings in ascertaining the extent of the builders’ lien for constructing them, is to ascertain the quantity of contiguous land that it was intended should be used with them and to which they are needful or useful.</p>

<p>B was administrator upon the estate of M, who died insolvent. Within the time limited for the presentation of claims the defendant presented a claim of $400, which B paid in full, he at that time supposing the estate. solvent and having disallowed certain claims in the belief that they were invalid and supposing that he had been so advised by the probate judge. The disallowed claims were afterwards, on suit brought, allowed and the estate was thereby rendered insolvent; and the dividend which the defendant would have received was $290 less than the sum paid her. B died and the plaintiff was appointed administrator de bonis non of M’s estate and brought suit to recover this sum of the defendant, which upon dejnand she had refused to pay. Held—</p> <p>1. That B if living could have recovered the money if he had sued for it.</p> <p>2. That the claim became a part of the assets of the estate, to which the plaintiff as administrator de bonis non was entitled, and that a suit could be maintained by him for the payment of it.</p> <p>It did not affect the case that when the over-payment was made the defendant had no knowledge of the condition of' the estate or of the mistake under which the payment was made.</p> <p>And it did not prevent a recovery that the money was paid under a mistake of law.</p> <p>Where money is paid under a mistake either of law or of fact, it is no defence to an action brought to recover it, that the mistake arose through the plaintiff’s negligence, if such negligence caused the defendant no harm.</p> <p>And it is especially so where the party making the payment acts in a fiduciary capacity.</p> <p>The conditions under which a party may recover back money which he has paid under a mistake either of law or of fact, are—1. That the money must have been paid by one under a mistake of his rights and his duty and be such as he was under no legal or moral obligation to pay. 2. That the receiver of the money must have no right in good conscience to retain it.</p>

<p>An act passed in 1871 making an addition to the salary of the reporter of judicial decisions, contained the following provision:—“It sháll be the duty of the reporter to cause to be stereotyped, at his own expense, all volumes hereafter published by him; the plates to be the property of the state, subject to the right of the reporter to use the same for printing copies therefrom.” Held—</p> <p>1. That the right of the reporter to print copies from the plates was an exclusive right, and that the state had no right to use the plates for the purpose.</p> <p>2. That this right was not determined by his resignation or death, but was property in his hands subject to his disposal.</p>

<p>Action on sundry notes and an account for goods sold ; brought to the Superior Court in New Haven County, and. tried to the jury before Andrews, J. James King was made a defendant, but no service was made upon him. The whole question was whether the defendant Wallace was liable with him as a partner. Verdict for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion.</p>

<p>Under Gen. Statutes, § 507, which provides for the institution of insolvency proceedings by a creditor against a non-resident debtor owning property in this state, it is not necessary that the creditor should be a resident of this state.</p> <p>The provision to that effect in the act as originally passed in 1853, was omitted in a revision of the probate laws in 1885, in which this and other sections were consolidated.</p> <p>That omission must be regarded as intentional, and as removing the limitation of the original act.</p>

<p>Action by the plaintiff as trustee of the assigned estate of an insolvent debtor, to recover for personal property of the debtor claimed to have been wrongfully taken by the defendant; brought to the Court of Common Pleas in New London County. The sole defense was that the plaintiff was not legally a trustee. The case was heard before Grump, J-Facts found and judgment rendered for the plaintiff, and appeal by the defendant.</p>

<p>The charter of the city of Waterbury provides that the clerk of the police court of the city “ may pay to persons entitled to costs in any criminal prosecution such costs as have of right accrued to them, * * * and may draw orders on the city treasurer for such sums as are necessary for such purpose or may pay the same out of the funds of the city in his hands.” A prosecuting officer who was entitled to certain fees which had been taxed in criminal prosecutions in the police court, brought an application for a writ of mandamus against the clerk of the court to compel him to pay him the fees. Held that the city and not the cleric was liable to the plaintiff for the fees, and that, while the clerk would have had the right to pay them under the above provision of the charter, a mandamus would not lie to compel him to pay them.</p>

<p>The act of 1889 (Session Laws 1889. Ch. 157) provides that “ in every action of tort in which the defendant suffers a default and there is a hearing in damages, such hearing shall be by the jury, unless the defendant shall have given notice of his intention to suffer a default to the clerk of the court within thirty days after the time fixed bylaw foi closing the pleadings shall have expired.” Held not to apply to an action pending when the law was passed, but in which the thirty days had expired before the act went into effect.</p> <p>A statute should never have a retroactive effect given it by construction, unless it is required by its express terms or by clear implication.</p> <p>Under ordinary circumstances it is not tbe duty of a railroad engineer, upon approaching a highway crossing, to both blow the whistle and ring the bell; but notwithstanding an order of the railroad commissioners dispensing with the blowing of the whistle, it is yet his duty to blow it if necessary to prevent accident and if the exercise of reasonable care requires it.</p> <p>The principle is well settled that if a plaintiff has been guilty of a want of ordinary care, contributing to the production of an injury, he cannot recover, although the defendant has been guilty of gross and culpable negligence, if the act was not intentional and wanton.</p>

<p>tinder Gen. Statutes, § 695, which authorizes justices of the peace to require sureties of the peace from persons threatening personal violence against others, on the complaint of any person on oath that he has just cause to fear such violence, the complaint may be made to, and the warrant issued by, one justice of the peace, and the case heard and the sureties required by another justice.</p> <p>A writ of habeas corpus cannot operate to bring in review mere irregularities or errors of procedure, or questions as to the sufficiency of evidence, in the case upon which the applicant was committed.</p>

<p>Where the evidence preswits such contingencies as may legitimately and within the pleadings lead to different conclusions of fact, the court may with propriety be required to charge the jury in the alternative or in reference to such contingencies.</p> <p>But where one and only one definite agreement ivas claimed on the part of the plaintiff and his whole case rested upon it, and one and only one agreement on the part of the defendant and his whole defense rested upon it, and these claimed agreements were in direct conflict, so that the party who established his claim in the convictions of the jury would necessarily prevail, and there was no ground for an implied agreement or any modification of either claimed agreement, it was held that the judge was not bound to charge with reference to any contingencies outside of the simple question of fact between these two conflicting claims.</p> <p>In his argument before the court and jury the plaintiff’s counsel read the findings of fact and the opinions of judges in sundry reported cases. The judge in his charge said to the jury—“ Anything which you have heard read from law books is of no concern to you. It must not enter into your consideration nor influence you in the slightest degree; that is a matter solely between the parties and the court.” Held that these remarks were not only not open to exception but were to be commended.</p> <p>Remarks of the judge in his charge to the jury which are only observations on the evidence are within the fair discretion of the trial judge and are not reviewable.</p> <p>Counsel for the plaintiff claimed that the defendant, who had testified in the case, must have been mistaken because he was contradicted by B, a witness, as well as by two others. The judge in commenting on this claim remarked that it was no worse for the defendant to be contradicted by B than for B to be contradicted by the defendant. The judge added—“You will give that claim such consideration as you think it ought to have. You have seen the witnesses upon the stand; you have heard their testimony; you will decide between them.” Held that while there might have been some ground for complaint if the judge had added nothing to his first remark, yet that the committal of the whole matter to the jury in his subsequent remarks was so clear and emphatic that no harm could have been done to the plaintiff.</p>

<p>Application by the state’s attorney for the county of New Haven to the Superior Court in that county, for a writ of mandamus to compel the selectmen of the town of Bran-ford to make certain alterations in certain highways of the town that had been ordered by the railroad commissioners for the purpose of removing grade-crossings. The case was heard, upon the defendants’ return to the alternative writ, before Robinson, J., and a peremptory mandamus issued. The defendants appealed. The ease is fully stated in the opinion.</p>

<p>The interest which a railroad corporation acquires in land taken by it for railroad purposes by condemnation is, and from the nature of the uses must be, a right to the occupation of it, exclusive in point of user and practically unlimited in point of duration. While for many purposes it is substantially equivalent to the fee, it is not the fee. Possession under it would not be adverse to the reversioner.</p> <p>If such land adjoins a highway the railroad company may do anything in the highway which any occupier of such lands might lawfully do, or anything, not depending on the ownership of the fee, which the owner of such land might himself do.</p> <p>The defendant railroad company was using certain lands adjoining a highway, which it had taken by condemnation, for the purpose of building thereon the approach to a bridge over a river, and was using a portion of the highway adjoining the land for sundry purposes of temporary convenience in constructing the work. Held that this use was analogous to the use of a portion of the highway adjoining a city lot as a convenience in erecting a building upon the lot; such acts being lawful, and the only limitation upon them being that they must not be unnecessarily or unreasonably undertaken or prolonged.</p> <p>Such acts offend, if at all, against the easement, which belongs to the public, and not against the reversion, which belongs to the owner of the fee. They might be nuisances as interfering unreasonably with public travel, but they would not be trespasses for which the reversioner would have a right of acLion.</p>

Suit for a foreclosure of a tax lien on certain real estate of the defendants; brought to the Waterbury District Court. The defendants demurred to the complaint and the court ( Cowell, J.) sustained the demurrer and rendered judgment for the defendants. The plaintiff appealed. The case is fully stated in the opinion.

<p>Where the terms of the grant or reservation of an easement are general and ambiguous, the contemporaneous acts of the parties giving a practical construction to it will be deemed to he a just exposition of their intent; and after the easement has been located and confirmed by both parties, it cannot afterwards be shifted at the pleasure or convenience of one of them.</p> <p>But where land which was conveyed subject to a reservation in general terms of a right of way over it, was crossed by several paths, two or more of which were practically of equal convenience to the owner of the easement, and it was understood when the reservation was made that the servient land was to be used for quarrying purposes and depended for its main value upon such use, and the paths were irregular and such as are generally found in rough quarry lands over which permanent paths are not usually laid out, but it is customary to open and close them as convenience and the profitable operation of the quarry require, and no particular path was designated at the time, it was held that the fact that a particular path was used immediately after the execution of tlie deed and until it was destroyed five years later by the quarrying operations of the owner of the servient estate, such use not interfering with the convenience of the latter, would not be conclusive of the meaning of the reservation.</p>

Action to recover two annual payments claimed to be due the plaintiff town from the defendant as lessee of a ferry; brought, by appeal from a justice of the peace, to the Court of Common Pleas of Hartford County, and there tried to the court before Bennett, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion. 1.

<p>A note on demand for $400, payable to 8, was indorsed by the defendant as follows—“ I hereby warrant the within note good and collectible until paid.” After the note had run for some time and the maker had failed to pay it on demand, S, the payee, for the sum of $800, sold and assigned the note to L by a written indorsement directly under the guaranty, as follows—“ For value received I hereby sell and assign this note to D. S. L.” Nothing was said at the time of the assignment about the guaranty, but it was practically the only thing that gave the note any value. The paper was treated by all concerned as forming one instrument for the security and payment of the amount due on the note. Held—1. That it should be taken as the intention of the parties to the assignment that the guaranty should pass to the assignee as well as the note itself. 2. That the form of transfer was sufficient to pass in equity the interest of the assignor in the guaranty.</p>

<p>A testator who had for several years before his death carried on with his three sons a retail trade in a city store, which he owned, and whose other children were two daughters, by his will gave his store and all other property pertaining to the business, with his notes and accounts, to his three sons equally, and certain other real estate to his two daughters respectively, the bequest to the sons containing the following provision—“ after payment of my debts, which are to he paid from said personal property.” Three years afterwards the testator borrowed $2,000 to furnish additional capital for the store, and secured the loan by a mortgage of one of the places given by the will to his daughters. Three years later he made a codicil which contained the following provision:—“Since the making of my will my store having been mortgaged by me to obtain money to discharge my obligations as bondsman for B, which ultimately occasioned my becoming the owner of a house and lot in W, I hereby devise said property in W to my three sons in equal shares.” Held that it was the intention of the testator that the sons should take the property given them subject to the payment by them of the debts of the estate, including the $2,000 mortgage upon the real estate devised to one of the daughters.</p> <p>The three sons, with full knowledge of the contents of the will and codicil, took possession of the store and the business, and of all the property bequeathed to them by the will and codicil, immediately after the death of the testator, and continued to conduct the business as their own and claimed to own the property absolutely and in fee simple. Held to be an acceptance of the bequest on the part of the sons and to make them personally liable for the payment of the debts.</p> <p>The duty to pay the debts being thus put upon the sons, the fact that the personal property given them and out of which the will directed that the debts should be paid, was less than the amount of the debts, was immaterial.</p> <p>■The fact that at the testator’s death the personal property given the sons was insufficient to pay the debts, was not a legitimate one to disprove the fact that he intended to have the debts paid by them when he made . the will and codicil.</p> <p>A general direction in a will to pay the testator’s debts without words of restriction, means all debts, whether secured by mortgage or'unsecured.</p> <p>The intention of a testator is committed by the law to the written language of the will, aided, if it may be, by the surrounding circumstances, and cannot be shown by extrinsic evidence.</p>

Petition to Thayer, J., under Gen. Statutes, § 58, which authorizes a judge of the Superior Court, on petition, to hear and. decide upon contested claims to city and town offices. The question in the case was whether certain ballots cast for the defendant for the office of alderman at a city election in the city of Hartford, were legal, under the act of 1889, known as the Secret Ballot Act.

<p>Section 2118, Gen. Statutes, provides that the public schools of the districts “ shall be open to all children over four years of age in the respective districts;” § 2224 provides for the enumeration of all children of school age “ who shall belong to such district; ” and § 2227 for a return by the enumerators of children “ residing within the school districts.” Held not necessary that a child should be domiciled in the district, but enough if it is residing in the district in the ordinary sense of that term.</p> <p>And held that a child of school age whose parents resided in another state, but who had lived for several years, and expected to continue to live, in the family of a domiciled resident of the district, was entitled to the privileges of the district school.</p>

<p>A defendant in a suit on a replevin bond, where a breach is admitted or shown, may prove the real amount of the damages which the plaintiff has suffered to be less than the value of the property.</p>

Writ oe error from a judgment of the Superior Court sitting at Waterbury in New Haven County, in the third judicial district, brought to the Supreme Court of Errors at its October term, in the first or Hartford district. The counsel for the defendant in error made no objection to the want of jurisdiction and the case was argued only on its merits.

Suit for the removal of a cloud upon a title, for a discovery, and for an injunction against the prosecution of an action at law; brought to the Superior Court in Hartford County. The principal allegations of the complaint were as follows:— “ 1.

Application to Hon. S. O. Prentice, a judge of the Superior Court, for a writ of habeas corpus.

Suit to foreclose three tax-liens, originally held severally by the Town, City and Centre School District of Waterbury ; brought by the plaintiff in his own name, to the District Court of Waterbury, and heard by Bradstreet, J. The plaintiff was collector of taxes for the three communities named, and had, under a requirement of law, paid the taxes in question to their respective treasurers. The amounts of the taxes were respectively $1.32, $3.96 and $1.98.

Action to recover of the defendant town the amount of damage sustained by the plaintiff from an injury to his sheep by dogs, under Gen. Statutes, § 3752 ; brought to the Court of Common Pleas in New Haven County. The defendant filed a motion that the case be erased from the docket for want of jurisdiction, and the court, (Studley, J.,') granted the motion, and the case was stricken from the docket. The plaintiff appealed.

Action fox1 money advanced; brought to the Superior Court in Hartford County and tried to the court before Thayer, J. The court made the following finding of facts :•—■ The plaintiffs are subjects of the Chinese Empire, residents of Shanghai, China, and actively engaged in business there.

Olmsted, an insolvent debtor, in disallowing a portion of a claim presented by the appellant against the estate; taken to the Superior Court in Litchfield County. The court made the following finding of the facts: On and prior to the 7th day of September, 1889, Wm. W. Olmsted was indebted to the appellant by book in the sum of $1,000. On the said 7th of September, being insolvent, he made a voluntary assignment to a trustee of all his estate for the benefit of his creditors.

Action to recover for work done and materials furnished in the construction of a church for the defendant corporation; brought to the Superior Court in Hartford County, and tried to the jury, before Prentice, J. Verdict for the plaintiff, and appeal by the defendant for error in the rulings and charge of the court.

Two actions to compel the defendant to deliver to the plaintiff in eacli case a deed of certain real estate, left for delivery after her death by Julia A. Hinman, the grantor; brought to the Superior Court in Hartford County, and tried before Thayer j. Facts found and judgment rendered for the defendant in both cases. The plaintiffs appealed. The case is fully stated in the opinion.

The following facts were found by a referee :— The appellant and the said Newton Carter intermarried on the 23d day of September, 1871.

Suit for the correction, of the finding and judgment in the case of Shoninger v. Peabody, reported in 57 Conn. R., p. 42, and for a new trial of the case; brought to the District Court of Waterbuiy. The material part of the complaint was as follows: 1.

Action to recover a balance claimed to be due on account; brought, by appeal from the judgment of a justice of the peace, to the Court of Common Pleas of Litchfield County, and heard before Boraback, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion.