Volume 65 — Connecticut Reports

Action for an accounting and the recovery of a legacy alleged to he payable from the estate of the late Phineas T. Barnum; brought to the Superior Court in Fairfield County and tried to the court, Balph Wheeler, J.; facts found and case reserved for the advice of this court. The case is sufficiently stated in the opinion.

Arthur D. Warner, judge of the Court of Common Pleas for Litchfield County, and heard upon the defendant’s demurrer to the reply of the… Held: who thereupon caused said William Clark to be brought before him, and the undersigned finds that said grand jurors aforesaid were met and convened in said Sharon to advise concerning offences committed therein, and were sitting as a court of enquiry in said town, and that William Clark appeared and was before said grand jurors so met…

Suit to determine the validity and construction of the will of William Bolles, late of Hartford, deceased ; brought to the Superior Court in Hartford County and reserved by that court, Shumway J., upon the facts stated in the complaint for the advice of this court. The case is sufficiently stated in the opinion.

Action to set aside certain deeds of real estate alleged to have been made in fraud of creditors, and for possession of the land so conveyed, brought to the Superior Court in Windham County.and tried to the court, Hamer sley, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion. I. The whole finding should stand as a part of the record of the case.

Action to recover balance of contract price for the construction of a schooner, brought to the Superior Court in Fairfield County, and tried to the court, Slmmway, J. ; facts found and judgment rendered for the defendant and appeal by tbe plaintiff, Carroll, for alleged errors in tbe rulings of tbe court. The case is sufficiently stated in the opinion.

Suit for the construction of the will of Morris Ketchum of Westport, deceased, brought to the Superior Court for Fair-field County and reserved by the court, Thayer, J., upon the facts stated in the complaint and answers, for the advice of this court. The case is sufficiently stated in the opinion.

Prosecution for an assault with intent to murder, brought originally in the City Court of New Haven where the accused was bound over for trial in the Superior Court for New Haven County. In the latter court the accused was tried to the jury before Ralph Wheeler, J., was convicted and appealed for alleged errors of the court in regard to the admission and exclusion of evidence. The case is sufficiently stated in the opinion.

Action to recover for work and labor and materials furnished, also upon an account stated; brought to the Superior Court in Fairfield 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 of the court. The case is sufficiently stated in the opinion.

Action to recover the possession of certain land together with the rents and profits thereof, brought to the Superior Court in New Haven County and tried to the court, Hall, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The material points in the case are sufficiently stated in the opinion.

County in granting a liquor license to one Solomon Kirby; brought to the Superior Court in Litchfield County, and tried by Fenn, J., who confirmed the action of the County Commissioners, and the appellant appealed to this court for alleged errors in the rulings of the judge. The case is sufficiently stated in the opinion.

Wheeler, J.; facts found and judgment rendered reversing the action of the County Commissioners and revoking the license granted, and appeal by Morrissey for alleged errors in the rulings of the judge.

Suit to determine the validity and construction of the will and codicil of William W. Giddings, of New Britain, -deceased ; brought to the Superior Court in Hartford County and reserved by the court, Shumway, J., upon the facts stated in the complaint, for the advice of this court. The case is sufficiently stated in the opinion. I. Did the testator by his said codicil revoke and annul section seven of his will? Jarman in his work on Wills, Vol.

Suit by the Seourifcjr Company, a Connecticut corporation, as administrator, cum testamento annexo on the estate of Nancie W. Hall, deceased, for directions as to its duties under the will; brought to the Superior Court in Hartford County where certain of the defendants filed a petition to remove the cause to the United States Circuit Court for the District of Connecticut, which petition the court, George W. Wheeler, Jdenied; and thereafter judgment was rendered by the…

Petition for a writ of mandamus, brought to the Superior Court in Hartford County, and tried to the court, Shumway, J., upon the petitioner’s demurrer to the respondents’ return; the court overruled the demurrer and held the return sufficient, and the plaintiff appealed. The case is sufficiently stated in the opinion. I. The vote was not warranted by law, nor was the reason assigned by the committee a valid reason for the exclusion of the plaintiff’s son.

Action to recover damages for the alleged conversion of several tons of hay, brought to the City Court of New Britain, and tried to the court, Moehe, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. The plaintiff described himself in the complaint as a deputy sheriff of Hartford County and declared, as appears by the amended complaint, as follows :— “ 1.

Action to recover damages for personal injuries received by reason of the alleged negligence of the defendant; brought to the City Court of Hartford and tried to the court, Taintor, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The plaintiff’s complaint was as follows :— “ 1.

Shit to determine the validity and construction of the will of Joseph Kinney, late of Stonington, deceased; brought to the Superior Court in New London County and reserved by the court, F. B. Sail, *71, upon the facts found and reported by Hon. Elisha Carpenter, State Referee, for the advice of this court.

Action to recover damages for personal injury alleged to have been sustained through the negligence of the defendant ; brought to the Superior Court in New London County and heard in damages to the court, George W. Wheeler, J. ; facts found and judgment rendered for the plaintiff for $4,500 damages, from which the defendant appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action to recover broker’s commission for the sale of certain real estate ; brought to the District Court of Waterbury and tried to the court, Bradstreet, J.; facts found and judgment rendered for the plaintiff to recover the full amount claimed and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Indictment for murder in the second degree, tried to the jury in the Superior Court for New Haven County before Robinson, J.; verdict and judgment of not guilty, and appeal by the State for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Information for robbery tried to the jury in the Superior Court for New Haven County, before Robinson, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the charge of the court. The case is sufficiently stated in the opinion.

Criminal prosechtion for a violation of the law relating to peddlers ; brought originally before a justice of the peace in the town of Branford and thence by the defendant’s appeal to the criminal side of the Court of Common Pleas for New Haven County, where the accused was tried to the jury before Hotchkiss, J.; verdict and judgment of guilty, and appeal by the defendant for alleged errors of the court in its charge to the jury.

<p>The defendant was, by its charter, provided with an adequate police force, with a special fire police, and with all the ordinary agencies for the detection, arrest and trial of offenders against law and order. In an action to recover a reward it was held:—</p> <p>1. That the common council had no power to supplement these agencies provided by the legislature for the detection and punishment of crime, by securing the aid of individuals through the offer of a reward.</p> <p>2. That a clause in the charter authorizing the common council to make ordinances “ to protect the city from fire and from the danger of the same,” did not authorize such body to offer a reward for the detection and conviction of incendiaries. Such provision authorizes no ordinances for the prevention of conflagrations, whicli do not seek to act upon or remove the physical conditions out of which they might otherwise naturally arise.</p> <p>3. That a subsequent vote of the city appropriating the same amount as a reward was equally ineffectual.</p> <p>Municipal corporations are more strictly limited in respect to implied or incidental powers than private corporations; and the test of their right by implication to exercise any particular power is the necessity of such power, not its convenience.</p>

<p>The plaintiffs relied, for the recovery of a portion of their claim, upon a custom of trade or business. The court charged the jury that if they found the existence of a known and established custom, as claimed by the plaintiffs, it would be presumed the parties contracted in view of it. Held that the charge was insufficient for the guidance of the jury in that it failed to instruct them what must be proved in order to show that the custom claimed was a known and established one, and in treating the presumption which might be drawn from it as one of law.</p> <p>A letter written by the plaintiffs to the defendant shortly before the commencement of the suit, asserting in detail the validity of theiT own claim and the unsoundness of the defendant’s counterclaim, is inadmissible as evidence of the due performance by the plaintiffs of their contract. Such a letter stands upon the same ground as a party’s declarations in his own favor.</p> <p>If some portion of such a letter is competent evidence upon one branch of the case, such portion only should be read and the jury should be carefully instructed as to the purpose for which it is admitted. If produced merely for the purpose of refreshing the recollection of a witness it is error to permit it to be introduced as evidence and read to the jury.</p>

<p>Action to recover damages for personal injuries to the plaintiff through the alleged negligence of the defendant; brought to the Superior Court in Fairfield County and tried to the jury before Thayer, J.; verdict and judgment for the plaintiff for $1,500 and motion by defendant for a new trial for a verdict against evidence.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Chapter 76 of the Public Acts of 1893 makes the “provisions of § 1216 of the General Statutes,” relative to fiowage petitions, “ applicable in case any person desires to build a dam on his own land to create a pond or reservoir from which to take ice.” Held that this could not be construed as applying to such a case the sections of the chapter covering fiowage petitions which follow § 1216, and therefore that no petition could be maintained to obtain the right to flow land for an ice-pond; since without reference to such sections there was no rule for determining the mode of proceeding upon such a petition, or the relief which might be obtained thereby.</p> <p>Whether circumstances might exist under which a law could be supported, which was designed to assist riparian proprietors to engage in the business of selling ice, by empowering them to create ice-ponds on the land of others, against their will, queer e.</p>

<p>The Act of 1869 amending the city charter (Special Acts, Vol. 6, p. 743) and establishing a board of street commissioners for the city of Hartford, conferred upon that board certain executive powers previously vested in the Court of Common Council. Held:—</p> <p>1. That the power. “ to superintend and provide for the lighting of the street lamps” was thus vested in the board as an independent department of the city government, and in the proper exercise of that power the board was not the mere servant or agent of the Court of Common Council.</p> <p>2. That the action of the board in making a contract, in the name of the city, with an electric light company for supplying, in accordance with the system of street lighting adopted by the Court of Common Council, electricity necessary for lighting the lamps erected in pursuance of the orders of said court, was within the powers vested in the board, and such contract, being otherwise valid, was binding on the city.</p> <p>3. That if the city ordinance directing the board of street commissioners to make certain provisional contracts subject to the approval of the Court of Common Council can be construed as prohibiting the board from making any contract necessary to the proper execution of its power of lighting the street lamps, unless such contract is approved by said court, then the ordinance, to that extent, is void.</p> <p>4 Such contract cannot be held void merely because it was not advertised under the provisions of the city ordinance requiring all contracts for city work exceeding in amount $500 to be publicly advertised and the contract awarded to the lowest responsible bidder; especially as it appeared from the record that the electric light company by reason of its ownership of the plant erected by permission of the city was practically the only company which could, without delay, furnish the electricity to the city.</p> <p>5. The mere fact that such contract might extend for five years, in case the city continues so long to be satisfied with its performance, does not make it void.</p>

Suit in equity praying for the cancellation of a certain written agreement and for other equitable relief; brought to the Superior Court in Hartford County where the plaintiff demurred to the defendants’ answer, which demurrer the court, Fenn, J., overruled. Subsequent^ the case was heard by the Hon. Elisha Carpenter, State Referee, who reported the facts to the court.

, upon respondents’ motion to quash the writ; the court granted the motion and the petitioners appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

<p>Where the branches o£ a tree extend over an adjacent owner’s land, he may lop them off up to his line, even though that were practically to the trunk of the tree.</p> <p>The interest or property rights of adjoining proprietors in a tree, the trunk of which stands on the dividing line, is not an ordinary tenancy in common, but is one of a peculiar nature. Each owner has an interest in the tree equal to the part that stands upon his land, with the right to insist that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.</p> <p>Whether the removal of that portion of a tree which stands upon the land of one proprietor, and the consequent destruction or injury of the whole tree, is reasonable or otherwise, is so largely a matter of discretion, depending upon all the facts and circumstances, that in a doubtful case the conclusion of the trial court in awarding or refusing an injunction will not be disturbed.</p> <p>A declaration by a vendor to his vendee that a well, not on the land to be conveyed, “belonged to” and “would be sold” with such land, is irrelevant and inadmissible where the only question is as to the legal effect of the deed as written. Its admission, to impair the title of a bona fide purchaser for value and without notice, of the adjoining tract on which such well was located, is error. The fact that such purchaser derived his title from a quitclaim deed is entirely immaterial.</p> <p>A good faith purchaser of land by quitclaim deed, for full consideration, has a right to the same protection against secret, unrecorded incumbrances on the premises, as if his title were by warranty deed.</p> <p>An injunction should not issue to prevent a landowner, in building on his own land, from covering a well on the dividing line, when the adjoining proprietor who seeks the injunction has long suffered the well to be covered, and made no use of it, and it does not appear that it is ever likely to be needed, or that the erection of the building will destroy its use.</p> <p>A grantee of a part of a tract of land has no implied grant or easement of light and air, as against a subsequent bona fide purchaser of the remaining portion, unless the alleged easement is so evidently necessary to the reasonable enjoyment of his premises, so continuous in its nature, so plain, visible and open, and so manifest from the situation and relation of the two parts, as to fairly and clearly indicate to the prospective purchaser of the remaining portion that it was the intention of the parties to the sale of the first portion to create and continue such an easement, and to charge him with knowledge that law and equity forbid him, in case of his purchase, to so occupy his part as to interfere with such easement.</p> <p>The doctrine of implied grants of light and air should be applied with great caution, and not to a case of diminution rather than exclusion of light, where the convenience rather than the real necessity of the party claiming the easement is interfered with.</p> <p>An injunction should be so definite in its terms that the person enjoined may know with reasonable certainty what acts he may and may not do, without making himself liable to contempt.</p>

, upon the defendant’s demurrer to the plaintiff’s amended statement of his first claim, and upon the answer of the defendant to the plaintiff’s second claim; the court sustained the defendant’s demurrer to the first claim, and rendered judgment for the plaintiff upon his second claim, and the plaintiff appealed for the alleged error of the court in sustaining the demurrer to his first claim. The case is sufficiently stated in the opinion.

Suit for an injunction to prevent and restrain the defendant from constructing its electric railway across and upon the tracks of the plaintiff at a certain highway crossing in the city of Bridgeport; brought to the Superior Court in Fair-field County and tried to the court, Shumway, J.; facts found and judgment rendered for the plaintiff and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action to foreclose a judgment lien, brought to the Superior Court in Fairfield County and tried to the court, Shumway, 11; facts found and judgment rendered for the defendant, Lucia I. Chapman, and appeal by the plaintiff for alleged errors in the rulings of the court. The appellant also excepted to certain findings of fact and refusal to find facts.

Action in the nature of an appeal from the doings of the board of relief of the town of Goshen, brought to the Superior Court in Litchfield County, and tried to the court, Bohinson, J.; facts found… Held: that not only may a creditor have an appeal, when aggrieved by the commissioners’ finding in regard to his own claim, but when aggrieved by their improper allowance of the claims of other creditors, whereby his own dividend is lessened. Saunders v. Dennison, 20 Conn., 524.

<p>Upon an appeal by a taxpayer from tlie action of the board of relief, the Superior Court should not reduce the valuation of his property below the amount he has himself placed upon it. And, on the other hand, if the issue is simply whether the valuation of the assessors and board of relief is, as a whole, excessive and unjust, the court ought not to increase such valuation. Subject to these limitations, however, there is no reason why the valuation of one or more items on the list may not be changed by the court to accord with the actual value of the property as shown by the evidence.</p> <p>Where, upon such an appeal, the taxpayer alleged in his complaint that a rule had been adopted by the assessors and board of relief to assess property at a fractional part of its actual value, and that his assessment was disproportionate to the other assessments in the town, it was held that evidence in respect to the rate of valuation placed by the assessors on other like property was admissible in support of that claim.</p> <p>One of the items on the plaintiff's list given in to the assessors was property “invested in mechanical and manufacturing operations.” Held that under such item the material in its mills in process of manufacture was properly taxable.</p>

<p>A stockholder in a corporation, subscriptions to whose stock were required by its charter to be secured by real estate mortgages or indorsed notes, and paid as the directors might determine, gave her indorsed note for the unpaid balance of her subscription, which note was payable “ thirty days after demanded.” Held that the statute of limitations did not begin to run against the note until thirty days after actual demand was made.</p> <p>The same rule applies to an indorsement of such a note, the circumstances of which are known to the indorser, and the indorsement of which contains a waiver of protest.</p> <p>Section 1859 of the General Statutes, which provides that a demand note, unpaid four months after its date, shall be considered overdue and dishonored after that time, has no application to a note payable a certain length of time after demand.</p>

Action for an injunction to restrain the defendant from obstructing the plaintiff in the free use of a pass-way, brought to the Superior Court in Hartford County, and tried to the court, Shumway, J.; facts found and judgment rendered for the defendant and appeal by the plaintiff for alleged errors of the court.

<p>Article first of the Constitution of this State provides: “That the great and essential principles of liberty and free government may be recognized and established, We Declare, That all men when they form a social compact, are equal in rights; and that no man or set of men are entitled to exclusive public emoluments or privileges from the community.”</p> <p>Chapter 121 of the Public Acts of 1893 provides that no person shall engage in any temporary or transient business for the sale of goods, wares and merchandise, without obtaining a license therefor, and that the mayor of any city, the warden of any borough, and the selectmen of any town, may issue a license to such persons as they find proper persons to engage in such business, upon receipt of a fee of not less than one dollar, nor more than one hundred dollars, as the authority issuing such license ihay require; and that any person violating such provision shall he liable, upon conviction, to fine or imprisonment, or both.</p> <p>Upon demurrer to an information charging a violation of chapter 121 as a misdemeanor, it was held:—</p> <p>1. That this Act was purely a trade regulation, relating, not to a business dangerous to the public, but to ordinary and lawful business in which all citizens have an equal right to engage; and its legal effect was to authorize the local officers of each municipality to grant exclusive privileges in the transaction of such lawful business to such persons as they pleased.</p> <p>2. That the provisions of the Act authorizing subordinate officers, in the exercise of an arbitrary discretion, uncontrolled by law, to grant such special privileges, are obnoxious to the limitations on legislative power contained in article first of the Constitution, and are void.</p>

<p>A testator gave one half of the residue of his estate to his daughter if for life, and upon her decease “ to her children and the legal representatives of any of them who may then have deceased, and to their heirs forever ”; and the other half to his daughter J for life, and at her decease “ to her children and the descendants of any child of hers, who may then have deceased and to their heirs forever,” but if she had no child or other descendant surviving her, then one third to her husband for life and the other two thirds “to the children of M and the legal representatives of such of them as may then he dead, aud their heirs forever”; and upon the death of the husband of J~, the portion given to him for life was also to go “ to the children of if, and the legal representatives of such of them as may then be deceased, and to their heirs forever.” At the time of making the will if had two children living. <f afterward died, leaving no descendants. In a suit to determine the construction and validity of the will it was held:—</p> <p>1. That the term “ legal representatives ” as used in the will meant the executors and administrators, and was a term of limitation and not of purchase.</p> <p>2. That the children of if as a class took a vested remainder in fee in the first named one half; and a vested interest by way of contingent remainder in the second named one half, which became absolutely vested on the death of J, subject to the life interest of her husband.</p> <p>3. That the bequests to the children of M did not violate the statute against perpetuities, § 2952 of the General Statutes. (One judge dissenting.)</p>

<p>A testatrix gave one half of the residue of her estate to her two daughters, S and S, and their heirs, subject to a provision that the executors should hold and invest $8,000 thereof and pay certain annuities out of the income, and gave the remainder of the income to such daughters equally ; but if either of the daughters should die before the last survivor of the annuitants, her proportion of the income was to be paid in accordance with her last will, and if she left no will, then to such daughter’s heirs at law. Held that upon the death of the last annuitant the $8,000 should be distributed, one half to the estate of each of the daughters.</p> <p>The will provided that the other half of the residue should be held in trust during the lives of the testatrix’s granddaughters, W and E, and that so much of the income thereof as was necessary should be used to pay certain annuities and the remaining income divided equally between said granddaughters ; that upon the decease of the surviving granddaughter the principal should be divided into two funds, one of which was to be retained by the executors, out of the income of which they were to pay the annuities; and that upon the decease of the last annuitant this fund was to be distributed “per capita equally among ” the testatrix’s “then lineal descendants.” By the terms of the will the second fund was, upon the decease of both granddaughters, to be divided and distributed equally to their children per capita. Two such great-grandchildren were living at the time the will was executed. A later clause gave everything not finally and fully disposed of by the foregoing provisions, to the heirs at law of the testatrix. It also declared the previous provisions of the will altered as follows: “If either or both of my said granddaughters die, leaving a husband surviving, such husband shall receive of the income of my estate during his life, one half as his said wife would receive, if living, under the provisions hereof; and the same of both husbands, the husbands half what the wife would receive.” At the time the will was executed each of said granddaughters had a husband living, and one of them survived both granddaughters and all the annuitants. In a suit to determine the construction and validity of the will it was held:—</p> <p>1. That in view of all the circumstances the provision above quoted constituted a gift to each of the husbands living at the time of making the will, and therefore was not in violation of the statute against perpetuities. General Statutes, § 2952.</p> <p>2. That the insertion of this provision postponed the time of distribution of the two funds until after the death of the surviving husband.</p> <p>3. That the separation into two funds should then be made as of the time of the death of the surviving granddaughter.</p> <p>4. That the gift of the first fund to the “then lineal descendants” of the testatrix, was void, as contravening the statute against perpetuities.</p> <p>5. That the amount of such fund vested in the heirs at law of the testatrix at her decease, and would go, at the death of the surviving husband, to those who represented them.</p> <p>6. That the second fund went to the great-grandchildren as a class, taking effect in point of right at the death of the testatrix, and in point of enjoyment at the death of the surviving granddaughter, subject only to the charge of income given to the surviving husband.</p>

<p>Personal property cannot be appropriated by a creditor to pay his debt by sale on execution, unless at every step the course prescribed by law is strictly pursued.</p> <p>Section 115S of the General Statutes requires an execution sale to be made “ at the end of 21 days ” after the notice of sale is posted. Held that this requirement is mandatory and that a sale made 22 days after the posting was invalid, and gave the purchaser no title to the property nor right to the possession, as against the execution debtor.</p> <p>If the execution purchaser on such a sale did not obtain actual possession, he cannot sue the actual possessor for conversion of the property, though the latter’s possession was wrongful as to the owner, or any one legally claiming under him.</p>

, of Hartford County, for alleged errors of the court in overruling a remonstrance of the plaintiff to the report of the committee appointed to hear and decide upon claims presented against the defendant. The case is sufficiently stated in the opinion. I. Under the stipulation the plaintiff’s claim should be allowed at $10,000, with interest from March 1st, 1879.

<p>The defendant in replevin was served with a copy of the writ which failed to contain the name of the affiant at the foot of the affidavit, though liis name did appear in the body of the affidavit; the original affidavit was duly subscribed and complete, and the copy in all other respects conformed thereto. Held that the variance was not a material one, and that a plea in abatement for that cause would not lie.</p>

Action for the conversion of certain trust bonds, brought to the Superior Court in New London County, and tried to the court, Sail, J.; facts found and judgment rendered for plaintiffs, and appeal by the defendant for alleged errors of the court. The case is sufficiently stated in the opinion.