Volume 64 — Connecticut Reports

Action to recover the possession of certain real estate together with the rents and profits thereof; brought to the Superior Court in Windham County and tried to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Action to recover the value of forty-two shares of. the capital stock of the Housatonic Railroad Company, alleged to have been converted by the defendant; brought to the Superior Court in Hartford County, and tried to the court, Jlobinsón, J., upon an agreed statement of facts ; judgment for the plaintiff and appeal by the defendant for alleged errors of the court.

Action to recover damages for breach of written contract to purchase a certain quantity of steel; brought to the Court of Common Pleas in Hartford County and tried to the court, Taintor, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors of the court in the admission of testimony.

Wordin deceased; brought to the Superior Court in Fairfield County, and tried to the court, John M. Sail, J.; facts found and case reserved for the advice of this court.*

Action to recover damages for the conversion of a safe ; brought to the Court of Common Pleas in New Haven County and tried to the jury before Darning, J. Verdict and judgment for the defendant and appeal by the plaintiff for alleged errors in the rulings and charge of the court.

Action by the indorsee against the maker of a negotiable note to recover $100, the amount thereof; brought to the City Court of Hartford and tried to the jury before MaManus, J.; verdict for plaintiff for $25.00, only, and appeal by the plaintiff for an alleged error in the charge of the court.

Action of replevin brought before a justice of the peace in the town of Ridgefield, and thence by the plaintiff’s appeal to the Court of Common Pleas in Fairfield County, Curtis, J., where judgment was rendered for the defendant, and the plaintiff appealed to this court.

Action for unlawful entry upon land of the plaintiff and tearing down his fence; brought originally before a justice of the peace and thence by the plaintiff’s appeal to the Court of Common Pleas in Fairfield County where the court, Curtis, J., rendered judgment for the defendant and the plaintiff appealed to this court.

Action by the payee of a promissory note against the maker; brought to the City Court of New Haven and tried to the jury before Cable, J.; verdict and judgment for the plaintiff and appeal by the defendant. The first count of the complaint, and the onty one now material, was as follows: “ 1.

Action to recover damages for the neglect and refusal of the defendant to pay the plaintiff the sum awarded him by arbitrators, upon his claim for special damages sustained by a change of grade of a highway in the defendant town; brought to the Superior Court in Fairfield County, and tried to the court, Ralph Wheeler, J., upon defendant’s demurrer to the complaint; the demurrer was sustained, and judgment rendered for defendant, and the plaintiff appealed.

The first of the above-named cases—the Yale Gras Stove Qo. v. Wilcox and wife—was an action to recover damages and also for equitable relief, for fraud alleged to have been practised upon the plaintiff by the defendant, Jedediah Wilcox, in the sale of certain letters patent; brought to the Superior Court in New Haven County and tried to the court, F. B. Sail, J.; facts found and case reserved for the advice of this court.

Action to recover for services rendered the defendant in negotiating for the purchase of certain real estate ; brought to the Court of Common Pleas in New Haven County and tried to the jury before Hotchkiss, J,; verdict and judgment for the plaintiff and appeal by the defendant for alleged errors in the rulings and charge of the court. The defendant also filed a motion for a new trial for a verdict against evidence.

Action to recover damages, under § 1344 of the General Statutes, for injuries caused to plaintiff’s land by a fire alleged to have been set by the defendant upon his land, whence it ran upon the plaintiff’s land ; brought before a justice of the peace and thence by defendant’s appeal to the Court of Common Pleas in New Haven County, where it was tried to the jury before Hotchkiss, J. ; verdict and judgment for the plaintiff for $20.00, and appeal by the defendant upon the…

Suit for the cancellation of an ante-nuptial contract entered into between the plaintiff and the defendants’ testator; brought to the Superior Court in Fairfield County and tried to the court, John M- Mall, J.; facts found and judgment rendered for the plaintiff and appeal by the defendants,

Action to recover compensation for services rendered by the plaintiff, as registrar of voters, in preparing a registry list for use in the annual town and city election in Bridgeport on the first Monday of April, 1892; brought to the Court of Common Pleas in Fairfield County, and tried to the court, Curtis, J., on demurrer to the complaint. The court sustained the demurrer, and rendered judgment for the defendant, and the plaintiff appealed.

Action for the appointment of a receiver of the assets of the defendant corporation in this State; brought to the Superior Court in Fairfield County and tried to the court, Ralph Wheeler, J.; facts found and case reserved for the advice of this court.

Information for arson filed by the State’s Attorney in the Superior Court for New Haven County, in lieu of an information brought by the city attorney of Meriden charging the same offense, upon which the accused had been bound over, tried and convicted, but which this court, on the defendant’s appeal, held defective. State v. Keena, 63 Conn., 329.

Prosectttioh for a willful trespass by defendant upon certain designated oyster ground on which oysters were cultivated ; brought in the City Court of New Haven, (Cable, J.,~) and thence by the defendant’s appeal to the criminal term of the Court of Common Pleas for New Haven County ; in the latter court the defendant was tried by a jury before Hotchkiss, J.; verdict of guilty and judgment thereon and appeal by the defendant for alleged errors in the charge of the court.

Action to recover damages for slander, brought to the Superior Court in Hew Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for tlie plaintiff's for §500 damages, aud appeal by the defendant for alleged errors of the court in excluding evidence and in the charge to the jury.

Action by the widow of Joseph Mullen, to recover a portion of the insurance money paid over by the association in which he was insured, to the defendant as guardian of the minor and only child of the plaintiff and said Mullen; brought to the Superior Court in Tolland County and heard upon the defendant’s demurrer to the complaint; the court, John M. Sail, J., overruled the demurrer, and after a full hearing at a subsequent term the court, Thayer, J., rendered judgment for…

Application under § 2700 of the General Statutes, by the city of Hartford, for the approval of a proposed highway within one hundred yards of a railroad track; brought before Son. Samuel 0. Prentice, a Judge of the Superior Court, who found the facts and rendered a judgment of approval, and appeal by the respondent for alleged errors of the judge.

StriT for the construction of the will of Horatio K. Nelson, deceased, brought to the Superior Court in Hartford County, and reserved by that court, George W. Wheeler, J., upon the facts stated in the complaint and admitted to be true, for the advice of this court.

Action to recover of the defendants the amount of a liquor license bond paid by the plaintiff; brought to the Court of Common Pleas in Hartford County and tried to the court, Calhoun, J.; facts found and case reserved for the advice of this court. The amended complaint of the plaintiff was as follows:— 1.

, and the appellant appealed to this court. The next of kin of the intestate were a brother who was an alien, and five first cousins who were naturalized citizens of the United States. The decree gave the personal estate to the alien brother, and the real estate to these cousins. The appellant, a natural born citizen of the United States, was a second cousin of the deceased, son of a first cousin who had died before him.

Indictment for murder in the first degree; brought to the Superior Court in Hartford County, and tried to the jury before Ralph Wheeler, J.; verdict of guilty, and appeal by the accused for alleged errors of the court in the admission of evidence.

Action to recover for work and labor and materials furnished in the repair of a house ; brought to the City Court of New Haven and tried to the jury before Cable, J.; verdict and judgment for the plaintiff and appeal by the defendant for alleged errors of the court in admitting evidence.

Action to recover damages for an alleged false imprisonment ; brought to the District Court of Waterbury and tried to the court, Root, J.; facts found and judgment rendered for the plaintiff against all the defendants, except Clancy, and appeal by them for alleged errors in the rulings of the court. All the defendants reside in the town of Naugatuck in New Haven county.

Suit to determine the construction and validity of the residuary clause in the will of Mary L. Townsend; brought to the Superior Court in Hartford County and reserved by the court,( George W. Wheeler, J., upon the facts stated in the complaint and admitted to be true, for the advice of this court.

Action to recover rent for'the use of an organ alleged tó have been hired by the defendant; brought to the Court of Common Pleas in Hartford County and tried to the court, Calhoun, J.; facts found and judgment rendered for the plaintiff and appeal by the defendant for an alleged error of the court in excluding evidence.

Criminal Prosecution for arson in the Superior Court in Fairfield County; tried to the jury before JNamersley, J., The accused was convicted and sentenced, and appealed for alleged errors of the court in its charge to the jury.

Suit for an injunction to restrain the defendants from making payments to two official newspapers of the city of Bridgeport; brought to the Court of Common Pleas in Fair-field County and tried to the court, Curtis, J., upon demurrer to the complaint; demurrer sustained and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings of the court.

Suit for the construction of the will of Henry M. Stannard of Westbrook, deceased; brought to the Superior Court in Middlesex County and reserved by that court, Phelps, J., upon the facts stated in the complaint, for the advice of this court.

Action for trespass on lands of the plaintiffs, and cutting and carrying away wood therefrom to the value of $50.00; brought to the Court of Common Pleas for Hartford County, and tried to the jury, before Walsh, J. The damages alleged were $100. The plaintiffs got a verdict of $48.50, and the defendant appealed for an alleged error of the court in excluding evidence.

, upon demurrer of appellees to the reasons of appeal. The court sustained the demurrer and thereafter the appeal was dismissed by the court, Ralph Wheeler, J., upon motion of the appellees, and the appellant appealed to this court for alleged errors in the rulings of the court below.

Action of scire facias against a garnishee, brought to the Court of Common Pleas in Hartford County and tried to the court, Calhoun, J., upon plaintiff’s demurrer to defendant’s answer. Inasmuch as the demurrer presented all the questions involved in the case, the court, with the consent of the parties, reserved the case for the advice of this court.

Action to recover damages of the defendant for negligence in permitting a sluice-way or culvert across the highway to become obstructed, in consequence of which the surface water was thrown back upon the plaintiff’s premises ; brought to the Court of Common Pleas for Hartford County and tried to the court, Calhoun, J.; facts found and judgment rendered for the defendant from which the plaintiff appealed for alleged errors in the rulings of the court.

Action to recover damages for an injury to a horse alleged to have been caused by the negligence of the defendant; brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtin, J.; facts found and judgment rendered for the plaintiff, from which the defendant appealed for alleged errors in the rulings of the court.

Action to recover damages for personal injuries suffered through'the alleged negligence of the defendant; brought to the Superior Court in Fairfield County and tried to the court, F. B. Sail, Jupon demurrer to the complaint; the demurrer was sustained, the plaintiffs filed an amended complaint which was also demurred to, and the court, Shumway, J., sustained this demurrer and thereafter rendered judgment for the defendant, and the plaintiffs appealed for alleged errors of…

Action to recover damages for the alleged conversion of a promissory note sent the defendants for collection; brought to the Superior Court in New Haven County and tried to the court, F. B. Hall, J.; facts found and judgment rendered for the defendants, from which the plaintiff appealed for alleged errors in the rulings of the court.

Action upon three promissory notes, brought to the Superior Court in Hartford County and tried to the court, Greorge W. Wheeler, J.; facts found and judgment rendered for the plaintiffs, from which the defendant appealed for alleged errors of the court in excluding evidence.

Action for rent of a leased room, brought before a justice of the peace in the town of New Haven and thence by the defendant’s appeal to the Court of Common Pleas in New Haven County, where the case was tried to the court, Studley, J., upon the defendant’s demurrer to the plaintiff’s reply; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for the alleged error of the court in sustaining the demurrer.

<p>A testator gave one third of the residue of his estate to his widow for her life, and t)ie other two thirds in certain proportions he bequeathed to his five children. By the sixth and subsequent clause of his will lie directed that the amounts charged by him on his books to his several children should be deducted from their respective shares in the residuary portion of his estate, and that the amount so charged should be embraced iij the inventory of the estate. Pending settlement of the estate, the residuary portion had increased some two hundred and forty thousand dollars by additions of income accruing since the testator’s death. The distributors in making a division of the residue, first determined the amount of the principal residue as it existed at the death of the testator, and from this amount deducted the total amounts charged by the testator on his books to his several children, and set aside one third of the balance for the life use of the widow; to the remaining two thirds they added the aggregate advancements made to the children and divided the sum thus ascertained in the proportions directed by the will, and from the share of each child so found they then deducted the advancements made to him or her respectively. Having thus determined the amounts of the respective shares of the widow and children in the principal of the residue, they then divided the income among the widow and children in like proportion. Neither the widow nor the appellant complained of this method of division of the principal, but the latter appealed from the decree of the court of probate accepting the distribution, in so far as the income was concerned. Held:—</p> <p>1. That the intent of the provision in the will directing that the amounts charged by the testator on his books to his several children should be embraced in the inventory of his estate, was merely the designation of a mode in which the distribution should be made, in order to insure an equitable division among the legatees; and not to make such advancements assets of the estate.</p> <p>2. That the acquiescence of the widow and the appellant in the distribution of the principal of the residue, had placed such a construction upon the testator’s intent in respect to the advancements, that it could not now be changed, even if under other circumstances this court might have taken a different view; and as the income was distributed in the same proportions as the principal of the residue, the appellant had no cause of complaint.</p>

Action in the nature of trespass quare dausum fr&git, brought to the Court of Common Pleas for New London County, and tried to the jury before Crump, J. ; yerdict and. judgment for the defendant and appeal by the plaintiffs for alleged errors of the court in charging the jury. The locus in quo was a meadow which had formerly been the southerly part of the bed of a mill-pond, the dam of which had gone to decay.

Action to recover a forfeiture for the alleged violation of a by-law of the plaintiff borough; brought before a justice of the peace and thence by defendant’s appeal to the Court of Common Pleas for New Haven County, where the case was tried to the jury before Hotchkiss, J. After the plaintiff had introduced its evidence and rested, the defendant moved for judgment as in case of nonsuit which the court granted, and upon its refusal to set aside such judgment the plaintiff…

Action to recover the value of professional services rendered by the plaintiff as a physician and surgeon; brought before a justice of the peace and thence by defendant’s appeal to the Court of Common Pleas for Hartford County, where the case was tried to the court, Calhoun, J.; facts found and judgment rendered for the defendant, from which the plaintiff appealed for alleged errors in the rulings of the court as to questions of law, and also upon the ground that the…

Action in the nature of trespass quare clausum fregit, brought before a justice of the peace, who gave the plaintiff judgment for $1.00 damages. An appeal was taken to the Superior Court for Windham County, by which, upon a trial to the court, Ralph Wheeler, •/., judgment was rendered in the plaintiff’s favor for the same sum.

Action to recover damages for the alleged negligence of the defendant in causing the death of the plaintiff’s intestate ; brought to the Superior Court in Hartford County and heard in damages to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiffs to recover 14,000 damages, and appeal by the defendant for alleged errors in the rulings of the court.

<p>It is not within the province of a jury “ to find ” what appears on a record, or what a record discloses. When a record is offered iu evidence and laid before the jury, it is the. duty of the court to state to the jury what such record proves, and what their duty is in respect to the facts so proved.</p> <p>While the record of a court of probate is only prima facie evidence of jurisdictional facts, its judgment of any material fact upon which it adjudicates imports absolute verity, as fully as does the judgment of a court of general jurisdiction.</p> <p>The retention by a trustee in insolvency of a note given by the vendee of personal property claimed to have been purchased by him in good faith of the insolvent prior to the commencement of insolvency proceedings, is not, as matter of law, a ratification of such sale operating to estop the trustee from maintaining a suit for the recovery of the property, or its value, for the benefit of the creditors. Such retention, unexplained, might be evidence upon which a jury would be justified in finding an intent to ratify, but it would not of itself be a ratification.</p> <p>Whether a trustee in insolvency has power to ratify a contract made by the insolvent, in such a way as to bind creditors, quaere.</p>

<p>In construing wills inartificially drawn, the context may give to certain words a meaning which they do not ordinarily or properly possess.</p> <p>A testator by his will gave to his son B all his property, hut placed it in the hands of trustees until he should perform certain specified “ stipulations to his brother J,” when “ the will” was to become absolute in B. Held that by “stipulations” the testator intended the obligations imposed upon B for the benefit of J, and that by “ the will ” he intended the devise and bequest to B. Held also, that so long as B regularly discharged these obligations towards J the whole net income of the estate should he paid over annually by the trustees to him, B, and to his executors and administrators; that should default of such obligations ever be made, J would have an equitable lien upon the trust estate to secure the benefits intended by the testator; and that should such default continue until J’s decease, the trust fund would then become intestate estate of the testator, B’s estate being defeated by breach of the condition subsequent.</p> <p>If a testator devises real estate owned by B to J and gives B a legacy, this casts upon B the necessity of electing whether to accept or reject the legacy with its attendant burden. B cannot claim the legacy unless he allows J the benefit of the devise.</p> <p>A bequest conditioned on payment of an annuity may be claimed although no money was paid, where necessaries of equal or greater value are annually furnished and accepted by the annuitant in lieu of the money.</p> <p>The general scheme of a will is not to be defeated by a concluding clause indicating a different and inconsistent intention, but expressed in such vague and dubio'us terms that its meaning cannot be gathered with reasonable certainty.</p>

<p>Under our practice a party who seeks to impeach an award rendered upon a submission under rule of court, for any cause, whether apparent upon the face of the award or otherwise, should do so by way of remonstrance against its acceptance by‘the court.</p> <p>Where an award is within the submission, and there is no claim that the arbitrators failed to act on all matters submitted to them, or that they undertook to act on any matters not submitted, a court of equity will not set aside the award except for partiality and corruption in the arbitrators, mistake on their own principles, or fraud or misbehavior in the parties.</p> <p>A submission provided that the arbitrators should proceed upon the principles of equity to the end that each party might receive all that was justly due him from the other. Held that this authority could not be-regarded as a limitation upon the arbitrators, but rather as a liberal and highly creditable grant of power.</p> <p>There is no rule of law that requires arbitrators to make a finding of facts in the case upon which they decide.</p> <p>Arbitrators cannot be held to have acted improperly in a legal sense, merely because they omitted some' detail in their award which neither the law nor the submission made it their duty to observe.</p> <p>The parties had entered into a written contract which provided, among other things, that one of them should “ work” a certain street, and the alleged breach of this agreement formed one of the claims submitted to the arbitrators. Held that parol evidence was admissible to show the special meaning of this term as understood by the parties at the time of making the contract; and that such evidence was not limited to expert testimony.</p> <p>It is ordinarily within the province of arbitrators to determine whether certain damages claimed by one of the parties are proximate or remote.</p> <p>Where the submission to arbitration is made a rule of court under § 1203 of the General Statutes, the arbitrators do not thereby become officers of the court, but are the appointees of the parties as in cases where there is no rule of court.</p> <p>The power to. accept an award, given by statute to a court, implies the power to reject.</p>

<p>The police commissioners of the city of Bridgeport were authorized by the city charter to remove any officer or member of the police department “for cause,” of which they were made the “ sole judges.” Held that their discretion in the matter of removals was supreme and not subject to control by mandamus.</p> <p>The relator, a captain of police in said city, was charged with disobedience to his superior officer, and with conduct prejudicial to the harmony of the force, and was, after notice and hearing, found guilty and removed from his office by the board of police commissioners. Held that the board acted not only within its authority, but also with a due regard to the rights of the relator.</p>

<p>Appeal from the decision of the County Commissioners for Fairfield County, granting a license to John H. and William McNamara .to sell spirituous and intoxicating liquors in the town of Norwalk ; taken to the Superior Court in said county and erased from the docket by the court, Thayer, J., upon motion of the appellees. Thereupon the appellant filed a motion to restore the cause to the docket which was denied, and the appellant appealed for alleged errors of the court in erasing thé cause and in refusing to restore it to the docket.</p> <p>In this court the appellees filed a plea in abatement.</p> <p>The appellant described himself in his appeal as “ of said Norwalk ” and “ a taxpayer of said town,” and alleged that he was aggrieved by the decision of the commissioners.</p> <p>In the Superior Court he filed reasons of appeal, to the effect that the place for sales at which the license was granted was within two hundred feet of a church edifice, and in a part of the city devoted largely to private residences, churches and public schools, and that to keep a liquor saloon there would injure the property in that locality.</p> <p>On motion of the appellees, the cause was erased from the docket for want of any sufficient allegation in the appeal, or in the reasons of appeal, that the appellant had suffered or could suffer any injury, cognizable by law, by which he could claim to be “ aggrieved ” by the decision of the commissioners. Six days after this order was made, the appellant filed a written motion for the restoration of the cause upon the docket, stating therein, among other things, that he was the pastor and teacher of the Congregational church mentioned in his reasons of appeal, and one of its financial supporters, and that to have a saloon so near it would injure the value of the church property, and annoy those using the building for the purposes for which it had been erected. Two days later, this motion was heard and denied, and at the same time the following order was entered by the court:</p> <p>“ Time extended one week for filing notice of appeal from the order granting motion to erase appeal from the docket.”</p> <p>On the following day, the appellant filed a notice of appeal to this court “from the judgments of the court in said action,” and four days later an appeal was filed, conformably to the notice. No other notice of appeal was ever filed. The appellees filed a plea in abatement in this court, on the following grounds :—</p> <p>1. There is no right of appeal to this court from the action of the Superior Court in appeals from decisions of county commissioners, as to granting licenses for selling liquor.</p> <p>2. No notice of appeal was given within one week from the entry of the order to erase the cause from the docket, nor any extension of time granted within said week. ■</p> <p>3. This appeal was not filed within ten days from the date of the judgment erasing the cause from the docket, although no finding of facts by the court was required.</p> <p>4. The appeal professes to embrace two judgments, one of which—that of refusal to restore the cause to the docket—was in the nature of the denial of a motion for a new trial, and was not a proper subject of appeal.</p> <p>The appellant denied all the allegations of this plea except that which set up that the appeal was taken from the judgment refusing to restore the cause to the docket, as well as from the order for its erasure.</p> <p>By order of the court, the plea in abatement and the appeal were argued together.</p>

<p>A tenant who owned hut a life interest in certain land sold and conveyed the same by warranty deed in fee, and the vendee, who at once took and retained possession, paid for, and believed he had acquired, an absolute title in fee. Upon the death of the life tenant some years later, the remainderman, with full knowledge of all the facts and with an intent to confirm the sale as made, accepted and appropriated to his own use that portion of the consideration money which had not been expended by the life tenant. Held that he had thereby ratified the unauthorized sale made by the life tenant and thereafter had no interest in the land or in the money awarded for its condemnation to public uses. Held also that an assignment of his interest pending the condemnation proceedings gave his assignee no other or greater right than he himself had.</p>

<p>The exceptions to the general rule excluding statements made by a party in his own favor ought not to be extended.</p> <p>In order that a declaration made by a party in his own favor may be admissible in evidence as part of the res gestae, it is essential that the act which such declaration characterizes or explains should itself be admissible.</p> <p>If such act is not admissible in evidence, its actual admission, without objection, does not render the accompanying declaration competent.</p>

Action in the nature of interpleader to determine the ownership of certain deposits in the plaintiff bank ; brought to the Superior Court in New Haven County and tried to the court, F. B. Hall, J.; facts found and judgment rendered in favor of Harriet B. Wolcott, and appeal by Hiram B. Wellington, administrator, mainly for alleged erroneous conclusions of the-court as to the facts.

Action to recover rent on a lease of a house, “ with the privilege of renting rooms,” against lessee and a surety, brought to the Court of Common Pleas in New Haven County and tried to the jury before Hotchkiss, J. ; verdict and judgment for the plaintiff and appeal by the defendants for alleged errors of the court in its rulings on evidence and in its charge to the jury. The complaint alleged that the guaranty of the surety (which was recited) was given for value received.

Amicable suit upon an agreed statement of facts to determine the respective legal obligations of the parties as to building and maintaining an approach or causeway to a bridge over the Housatonic river recently erected by the plaintiffs; brought to the Superior Court in New Haven County and reserved by the court, Prentice, J., for the consideration and advice of this court.

Appeal by the plaintiff from the action of the board of relief of the town of Glastonbury in refusing to deduct a certain item from his tax list; brought to the Superior Court in Hartford County and tried to the court, Shumway, J.; facts found and case reserved for the advice of this court.

Suit to determine the construction of the will of John G. Mix, late of Hartford, deceased; brought to the Superior Court in Hartford County and reserved by the court, Robinson, J., upon the facts stated in the complaint and admitted to be true, for the advice of this court.