Volume 60 — Connecticut Reports

The court made a finding of the facts, which, after stating that the highway in question was laid out by the city of Waterbury across the land owned in fee and occupied by the railroad company, and that the board of compensation of the city had assessed the damages for the land taken at $198, proceeded as follows: — The highway constructed upon the land so taken crosses the lay-out of the applicants, and by direction of the railroad commissioners is made to pass under the…

Complaint by a committee of the Fairfield County Bar, against the defendant, an attorney-at-law of that county, made to the Superior Court for that county, charging the defendant with fraudulent conduct as an attorney, and asking for bis disbarment. The case was beard by Fenn, J., a finding of the facts was made, and a decree passed disbarring the defendant and forever prohibiting him from practising law in the state. The defendant appealed to this court.

Information in the nature of a writ of quo warranto, against the defendant as usurper of the office of burgess of the borough of Stamford; brought to the Superior Court in the county of Fairfield, and heard before Fenn, Jl Facts found and judgment rendered for tbe defendant, and appeal by tbe relator. Tbe case is fully stated in the opinion.

<p>A deed with a condition for the support of a person for life and to he void on the performance of the condition, is a mortgage.</p> <p>If it should be necessary to foreclose such a mortgage the money value of the incumbrance can be ascertained approximately, and that is sufficient for all the purposes of substantial justice.</p> <p>Courts never refuse to redress an injury on account of the difficulty of estimating it in money.</p> <p>An entry for the failure to perform such a condition in a mortgage is not necessary.</p>

<p>H, the owner in fee of a tract of land, conveyed to a railroad company a strip of land running through it for the laying of its track, the deed containing the following provision: — “Said company forever to maintain the crossing now made on said land over the railroad and permit the grantor to use the same for his farming purposes; also to permit the grantor to pass over the crossing on D. B.’s land whenever he shall ' require in his farming business.” Held that the deed was inadmissible for the purpose of proving a right of way at the crossings acquired by adverse user.</p> <p>if by his deed having parted with all his title'except the right of crossing which he had reserved, had no right of crossing except that so reserved.</p> <p>Although the deed speaks of the crossings as “ now made on said lands,” thus recognizing them as material structures existing when the deed was made, yet the grantor retained no right to use them independently of the provision in the deed.</p>

Suit to determine the rights of the plaintiff under a testamentary trust and to compel the execution of the trust; brought to the Superior Court in New Haven County. Facts found and case reserved for the advice of this court. The case is fully stated in the opinion.

ACTION to recover for money expended by the plaintiff in improvements on real estate owned in common by the plaintiff’s wife and the defendant’s testator, made under a promise of the latter that his interest in the property should be devised to the plaintiff’s wife, and that she should have the benefit of the improvements ; brought to the Superior Court in Hartford County.

<p>In a complaint for assault and battery, demanding general damages only, all the acts and circumstances attending upon and giving character to the assault, may be shown by the plaintiff to enhance damages.</p> <p>Where the defendant, in an assault upon the plaintiff had pushed him with great force against a car, and he was' injured by the violent contact, it was held that this might be shown to enhance damages without any averment of the fact.</p> <p>And held that it might also be shown as a ground of recovery, under a general allegation of an assault, without any averment of this particular injury. It would be a part of the assault.</p> <p>And where a complaint alleged that the defendant “ assaulted the plaintiff and beat him with a cane,” it was held that the plaintiff might show that the defendant in the struggle pushed him with violence against the ear, and thereby injured him.</p>

<p>Appeal from two decrees of a probate court; taken to the Superior Court in New Haven County. Facts found and case reserved for advice. The case is fully stated in the opinion.</p>

<p>ACTION upon a parol promise of the defendant to pay-certain taxes due from a third person, on the promise of the plaintiff, a tax collector, to forbear to levy on certain property upon which the defendant as administratrix held a mortgage ; brought to the Court of Common Pleas in New London County, and tried to the court before Grump, J. ¡Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion.</p>

Action to recover possession of a described lot of land with buddings upon it; brought to the Court of Common Pleas of New Haven County, and reserved upon certain pleadings for tbe advice of this court. The case is fully stated in the opinion.

ACTION to recover a forfeiture for the erection of a building in violation of an ordinance of the plaintiff borough; brought to. the Superior Court in Fairfield County, and tried to the court before J. M. Sail, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion.

Writ oe error from a judgment of the Superior Court in Fairfield County convicting the plaintiff in error, upon an information by the state’s attorney, of an assault with intent to murder; brought to this court. The principal error assigned was that the plaintiff in error could have been held to answer for the offense charged only on an indictment by a grand jury.

Two COMPLAINTS in the City Conj-t of the city of Bridgeport, the first charging that the defendant, “within the corporate limits of the city, did keep a place where policy-playing was carried on contrary to the ordinance of the city; ” and the second that the defendant “ did, within said city, keep a place for the playing in and conducting and carrying on the game and scheme commonly known as policy, contrary to the ordinance, etc.” Both cases were appealed to the Criminal…

Suit for foreclosure; brought to the Court of Common Pleas of Fairfield County, and heard before Perry, J. Facts found and decree of foreclosure passed, and appeal by the defendant. The case is fully stated in the opinion.

<p>An assessment for benefits from a city improvement should be made against the owner or owners of each piece of land benefited. A joint assessment may be made where there is a joint ownership, but where there are separate and distinct interests in the same land there should be a separate assessment against each of the owners of such interest for the benefit accruing to his interest.</p> <p>An assessment otherwise made is irregular, but is not so wholly void that the irregularity cannot be waived by the persons against whom it is made.</p> <p>The authority to make special assessments for benefits is found in the taxing power of the legislature.</p>

<p>Suit to foreclose a tax lien; brought to the District Court of Waterbury, and beard before Cowell, J. The Chelsea Savings Bank, one of the defendants, alone made defense. The court granted the foreclosure and the Savings Bank appealed. The case is fully stated in the opinion.</p>

Action for the destruction, by fire from tbe locomotive engine of the defendant company, of goods of the plaintiff in a store-house adjacent to the track of the defendant’s railroad; brought to the Superior Court in Tolland County.

The case was heard before Robinson, J., by whom the following finding of facts was made. Irene M. Clark died in April, 1887, leaving a will, dated November 11th, 1881, which was duly probated, by which she gave all the residue of her personal property to the appellant and five others, to be equally divided among them. On the 15th of October, 1884, she had on deposit in the Connecticut Savings Bank of New Haven $5,871.

<p>Appeal from an order of the railroad commissioners; taken to the Superior Court in Fairfield County, and heard before Robinson, J. Motion to erase from the docket for want of jurisdiction granted by the court, and appeal by the original appellants. The case is fully stated in the opinion.</p>

Amicable submission, upon an agreed statement of facts, of a question as to the title to certain offices; in the District Court of Waterbury. Reserved for advice. The case is fully stated in the opinion.

Suit for the reformation of a deed and for damages; brought to the Court of Common Pleas of Hartford County, and beard before Bennett, J. The court made the following finding of facts.

Suit for an injunction against the defendants’ using a claimed crossing over the track of the plaintiff corporation ; brought to the Superior Court in Hartford County, and heard before Thayer, J. Facts found and judgment rendered for the defendants, and appeal by the plaintiff. The case is fully stated in the opinion. The defendants do not claim a right of way of necessity across the railroad; nor that they have gained a right of way by adverse user.

<p>ACTION for damages for an injury from the negligence of the defendants; brought to the Superior Court in New Haven County, and tried to thé jury before Sanford, J. The plaintiff was nonsuited by the court, and a motion made to set aside the nonsuit being denied, the plaintiff appealed to this court. The case is fully stated in the opinion.</p>

<p>In a civil issue it is proper that the jury should take into account all the presumptions which, according to the ordinary course of events or the ordinary experience of human nature, arise out of the facts proved. Our courts have not gone so far as to say that any artificial presumption beyond these should be allowed to come in.</p>

Complaint by a grandjuror for the violation of Gen. Statutes, § 1454, which forbids the entering upon the enclosed land of another, for the purpose of hunting or fishing thereon, without the consent of the owner; brought before a justice of the peace, and appealed by the defendant to the Criminal Court of Common Pleas of Fairfield County, and tried to the jury in that court, on the plea of not guilty, before Walsh, J. The defendant was charged with fishing.in Potatuck brook,…

<p>Suit for an injunction to restrain tbe defendants, as members and officers of the board of education' of a school district, from paying out the money of the district for the defense of a suit brought against certain members and ex-members of the board, for malicious and wrongful acts in connection with their duties as members of the board; brought to the Superior Court in New Haven County. The defendants filed an answer, to which the plaintiff demurred. The court (Penn, J!,) overruled the demurrer, and, the plaintiff making no further reply, rendered judgment for bhe defendants. The plaintiff appealed. The case is fully stated in the opinion.</p>

Action for an injury from the negligence of the defendants ; brought to the District Court of Waterbury, and beard in damages, on a default, before Gowell, J. The court made the following finding of facts. On November 10th, 1887, and for some time prior thereto, the plaintiff was duly licensed to make connections with the sewers in the city of Waterbury.

ACTION for causing the death of the plaintiff’s intestate by negligence in the running of a railroad train of the defendant; brought to the Superior Court in Fairfield County, and heard in damages after a default by F. B. Sail, J. The court made the following finding of facts. The defendant is a railroad company, operating a railroad which passes through the town of Danbury.

<p>Although the fee of land between high and low water mark on the seashore is in the state, yet it seems to be the better opinion that the state cannot take it for public use without compensation.</p> <p>But the question becomes unimportant where the charter of a city expressly provides that compensation shall be made for such land taken by the city in establishing harbor lines.</p> <p>The charter of the city of Bridgeport provided that after the common council had decided to establish a harbor line, it should appoint a committee whose duty it should be to make the lay-out and report their doings in writing to the common council. The standing committee on harbor improvements reported to the council resolutions in favor of laying out certain harbor lines, and appointing a committee to lay them out, which resolutions the council adopted. The committee thus appointed reported and recommended a resolution for adoption by the council, laying out the harbor lines as proposed, which resolution the council adopted. Held not to be a legal lay-out of the harbor lines, the lay-out being by the common council and not by a committee.</p> <p>Where the common council had previously established harbor lines it was held that it was not precluded from altering them without further legislative authority. A legal establishment of new harbor lines would be a legal discontinuance of the old lines without any direct action for that purpose.</p> <p>Where a harbor line was established solely in order that an expensive and sightly bridge might not be hidden from view by buildings placed on each side of it, it was held not to be a public use for which lands could betaken.</p>

Three actions for injuries through the negligence of the defendant railroad company in the running of one of its trains; brought to the Superior Court in Fairfield County, and, after demurrers overruled, heard in damages before Fenn, J. The first action was for damage to the plaintiff by an injury to his wife; the second for damage to the wife from the same injury; and the third for the death of Sarah J. Smith, in the same accident, the suit being brought by her…

Action by the plaintiff as assignee of a savings bank passbook and holder of an order for money, to recover money represented by it, standing to the credit of the depositor on the pass-book; brought to the Superior Court in New Haven County, and tried to the court before Robinson, J. The court made the following finding of facts. The defendant is a savings bank chartered by the state and doing business in New Haven.

<p>Suit for an injunction against the declining, by the common council of the city, to accept and administer a testamentary trust under the will of Philip Marett; brought to the Superior Court in New Haven County. The defendants demurred to the complaint, and the case was reserved upon the demurrer for the advice of this court. The case is fully stated in the opinion.</p>

ACTION by tbe state to recover an amount claimed to be due from the defendant railroad company as unpaid taxes; brought to the Superior Court in Hartford County, and reserved, on facts found, for the advice of this court. The case is sufficiently stated in the opinion.

Demurrer sustained and judgment rendered for the defendants, and appeal by the plaintiff. The case is fully stated in the opinion.

<p>A held a mortgage on the homestead of B. Later G obtained a judgment against B and filed a judgment lien on the homestead and on a pasture belonging to B. Later A obtained a decree of foreclosure of his mortgage of the homestead, not making G a party. After the foreclosure took effect A conveyed the homestead by a warranty deed to D. G af-terwards foreclosed his lien on the pasture and took possession of it, the value'of the pasture being greater than the judgment debt. After-wards B conveyed all his interest in the homestead to the plaintiff. Held that the plaintiff had a right to redeem the homestead from J), the grantee of A.</p> <p>A judgment lien is a mortgage, and the lienor has all the rights of a mortgagee. =</p> <p>By virtue of his judgment lien O had the right of a second mortgagee to redeem the homestead mortgaged to A, which right was not cut off by the foreclosure of B, G not having been made a party.</p> <p>There was left in B an equity by virtue of which he could redeem the judgment lien upon the homestead held by G, and by redeeming that judgment lien he would acquire the same right to redeem the first mortgage which Chad.</p> <p>And being possessed of such right he could convey it by any proper deed to . the plaintiff.</p> <p>The taking possession of the pasture by G under his foreclosure was the payment of the debt for whieh it had been a security, the land being of greater value than the amount of the debt. It paid the debt in the same way that a payment in money would have done.</p> <p>This payment of the debt which B owed to C was a redemption of the judgment lien on the homestead, and clothed B with a right to redeem the first mortgage from A.</p> <p>The deed from B to the plaintiff of all his right in the homestead would not have been rendered void by the possession of A under his foreclosure or of X> as his grantee, if they had been in full possession. In giving the deed B simply passed to the plaintiff the right to redeem which he had acquired through C, and the possession of A would not have been adverse to the title of G as a second mortgagee.</p> <p>If a mortgagee refuses to receive his money on tender after forfeiture, he will lose the interest upon it from the time of the tender.</p>

PETITION to Phelps, J!, under Gen. Statutes, § 58, for tlie opening of tbe ballot box containing tbe ballots cast at tbe last preceding election for selectmen in tbe town of Trumbull and a recounting of tbe ballots, the plaintiff claiming to have been elected first selectman of the town, and tbe defendant bolding the office and claiming to have been elected to it.

ACTION to recover for the use and occupation of certain land of the plaintiff, and for damages for the brea.eh of a contract; brought to the Court of Common Pleas of Hartford County and tried to the jury before Taintor, J. Verdict for the defendant, and motion for a new trial by the plaintiff for a verdict against the evidence and an appeal for error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action against the defendant, as a common carrier, for the failure to deliver goods committed to him for transportation ; brought to the City Court of New Haven and tried to the court before Pieleett, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant for error in the rulings of the court. The case is fully stated in the opinion.

<p>The statute (Gen. Statutes, § 1307,) which confers power on a court of equity to order a sale of property owned in common where in its opinion a sale will he more advantageous to the owners than a partition, applies only to cases of ownership; a person having merely an interest in property, hut not a title, is not entitled to an order of sale.</p> <p>And it does not confer on the court any power to order a sale to pay debts. Where a sale was sought by one of two owners of a patent, not for the purpose of dividing the proceeds, but of paying an indebtedness of the defendant to the plaintiff, it was held that the object was one for which the court could not order a sale.</p> <p>Whether the court could order a sale for the purpose of dividing the proceeds between the owners: Quaere.</p> <p>The right of a patentee in a patent is property which is subject to the claims of a creditor, and may be reached by a proper proceeding in equity and applied to the payment of his debts.</p> <p>And to accomplish this the court may require the debtor to execute a conveyance of the patent to a receiver; and this though the patent was issued by a foreign government.</p> <p>The court below having found that the debtor had agreed that the patent should be sold for the purpose of paying the plaintiff for his advances, it was held that the order for a sale was in the nature of an order for a specific performance of that agreement.</p> <p>A creditor’s bill that is strictly such exists only in those jurisdictions in which law and equity are administered by separate tribunals. Where, as in this state, a creditor can in the same suit have judgment for his debt and the necessary equitable aid to obtain payment out of any property of the debtor, a creditor’s bill is not necessary.</p> <p>Where upon facts proved the plaintiff is entitled to relief, and there is more than one method in which the relief can be granted, it is for the court in the exercise of its discretion to select that one which is best, and the exercise of its discretion in the matter will not be a ground of error.</p>

Action to recover damages for the cutting of a tree on land of the plaintiffs; brought to the Court of Common Pleas of Fairfield County, and heard in damages, after a default, before Perry, J. Facts found and damages assessed at one hundred and fifty dollars, and appeal by the defendant. The case is fully stated in the opinion.

Suit by an executor for the construction of a will; brought to the Superior Court in New Haven County, and reserved, on facts found, for the advice of this court. The case is fully stated in the opinion.

<p>M executed and gave to W the following instrument, receiving from him the property mentioned in it: — “March 4, 1889. Received of W one hay horse and one express wagon, for which I promise to pay him or his order one hundred and fifty dollars with interest five months from date, at Pirst. Nat. Bank, Webster. Said property to remain the absolute property of W until paid in full by me. And I hereby agree not to dispose of said property and to keep it in good condition as it now is. And should said horse die before said sum is fully paid I agree to pay all sums due thereon, and should said property be returned to or taken back by W, I agree that all payments made thereon may be retained by Wfor the use of said property.” Held not to be a negotiable promissory note.</p> <p>It is necessary to such a note that the amount stated in it should be payable absolutely and at all events. Here the contract gave M the right to return the property to W, in which case he would not be liable to pay what remained unpaid of the amount.</p> <p>The instrument was endorsed by W and for his accommodation by the defendant, and the plaintiff discounted it for W, who received the proceeds. The plaintiffs in making the loan relied upon the endorsement of the defendant, and supposed the instrument to be a negotiable note, as did also W and the defendant, and the latter believed himself liable upon his indorsement upon failure of W to pay, and had stated to the plaintiffs that he understood himself to be so liable upon like paper shortly before discounted by them for W on his endorsement. Held that there was no legal implication that the money was loaned to the defendant and at his request delivered to W, or that the loan was made to W on the defendant’s request and promise to pay if he did not.</p>

Action upon an indorsed note; brought to the Superior Court in New Haven County, and beard before Fenn, J. Facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The case is fully stated in the opinion.

Habeas corpus in the Court of Common Pleas of New Haven County. Heard before Deming, J., and judgment rendered for tbe plaintiff. Appeal by the defendant. The case is fully stated in the opinion.

Suit to set aside an assessment of benefits for a city sewer as void and as a cloud upon title; brought to the Superior Court in Fairfield County and heard, upon a demurrer to sundry paragraphs of the complaint, before J. M. Hall, J. Demurrer sustained, and the remaining issues tried to the court before Fenn, J. Facts found, and judgment rendered for the defendant, and appeal by the plaintiffs. The ease is fully stated in the opinion.

The plaintiff, the American Casualty Insurance & Security Company, was incorporated under the laws of the state of Maryland and located in the city of Baltimore.

REPLEVIN for a quantity of tools; brought to the Court of Common Pleas for Litchfield County, and tried to the court before Rorahaeh, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiffs. The case is fully stated in the opinion.

<p>A parol promise, by a party for whom a building is being erected under a contract, made to a sub-contractor, that if the latter would not file a lien he would pay his bill if the principal contractor did not, and so much of it as the latter should fail to pay, with a neglect of the subcontractor in consequence to file a lien, is within the statute of frauds and void.</p>

Suit for the construction of a will, brought by the plaintiff as a trustee under it, to the Superior Court in New Haven County, and reserved on facts found for the advice of this court. The case is fully stated in the opinion.

ACTION oil a probate bond; brought to the Superior Court in Fairfield County, and heard before J. M. Hall, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion.

<p>Appeal from a conviction in a criminal case in the Court of Common Pleas of New Haven County, on the ground that the judge holding the court did not legally hold the office of judge. The case is fully stated in the opinion.</p>

ACTION for a libel; brought to tbe Superior Court in New Haven County, and tried to the court before Fenn, J. Facts found and judgment rendered for the plaintiff for three hundred dollars damages, and appeal by the defendants. The ease is fully stated in the opinion.

Action by a trustee to recover the value of certain stocks and bonds claimed to belong to the trust estate ; brought to the Superior Court in Fairfield County. Facts found and the case reserved for advice. The case is fully stated in the opinion.

Suit for an injunction to restrain tbe defendant city from paying salaries to certain policemen; brought to the Superior Court in Fairfield County and heard, before Robinson, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The ease is fully stated in the opinion. 1.

Suit in equity by a remainder-man against the defendant Allen, as a testamentary trustee, charging him with wasting the trust fund, and praying that he be compelled to replace ■the funds lost or wasted and that he be ordered not to invest any part of the fund in other securities than those in which trustees are permitted by law to invest; brought to the .Superior Court in New Haven County and heard before Robinson, J. Facts found and judgment rendered for the plaintiff, and…

PETITION to J. M. Hall, Junder 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. Facts found and case reserved for advice. The case is fully stated in the opinion.

Two SHITS in equity, brought by William H. Starbuek and others against the Mercantile Trust Company and others, and by Jabez A. Bostwick and others against George D. Chapman and others, (the defendants being with a few exceptions the same in both cases,) to the Superior Court in Fairfield County, and heard before Robinson, J. The cases involved the same general facts and were tried together. The following facts were found by the court.