Volume 68 — Connecticut Reports

Action upon the official bond of a constable to recover damages for an alleged trespass, brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, J., upon the defendants’ demurrer to the complaint; the court overruled the demurrer and thereafter the case was tried, upon the defendants’ denial, to the court, Downs, J., who found the facts and rendered judgment for the plaintiff, and the defendants appealed for alleged errors in the rulings of…

Petition for a writ of mandamus to compel the respondents to build the approaches to the Washington bridge, so-called, over the Housatonic river, brought to the Superior Court in Fairfield County and tried to the court, George W. Wheeler, J., upon the respondent’s motion to quash the alternative writ; the court granted the motion and denied the application for a peremptory mandamus, and the petitioner appealed for alleged errors in the rulings of the court.

Action to recover the value of certain assets of an insolvent manufacturing company, alleged to have been transferred to the defendant in exchange for his stock, and in fraud of the creditors of the company; Brought to the Superior Court in Windham County and tried to the court, Robinson, 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 recover the amount of a promissory note, brought to the Court of Common Pleas in Litchfield County and tried to the jury, before Arthur I). Warner, J.; judgment of nonsuit rendered upon motion of the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. In connection with the appeal the plaintiff filed an application to amend and correct the record, which was granted. The case is sufficiently stated in the opinion.

Actton to foreclose a mechanic’s lien, brought to the Court of Common Pleas in Hartford County and tried to the court, Oalhoun, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Suit to compel the defendants to convey certain real estate to the plaintiff, and for damages, brought to the Superior Court in Hartford County and tried to the court, Thayer, The case is sufficiently stated in the opinion. There was a good and valuable consideration for the contract, and such a part performance that a court of equity will vest the title in the plaintiff.

. Petition for a new trial for newly-discovered evidence, brought to the Superior Court in Middlesex County and tried to the court, Shumway, J., upon the respondents’ demurrer to the petition; the court sustained the demurrer and thereafter rendered judgment for the respondents, and the petitioner appealed for alleged errors in the rulings of the court. The ease is sufficiently stated in the opinion.

Suit upon certain policies of life insurance, praying for a disclosure, an accounting and other equitable relief, and for damages, brought to the Superior Court in New Haven County and tried to the court, Greorge W. Wheeler, J.; facts found and judgment rendered requiring a disclosure and accounting upon the part of the defendant, and appeal by it for alleged errors in the rulings of the court.

Action to recover damages for a change of grade in a highway adjoining the plaintiff’s premises, brought to the Court of Common Pleas in New Haven County, and tried to the court, Hotchkiss, J., upon the plaintiff’s demurrer to the defendant’s answer; the court overruled the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

Wheeler, J.; facts found and judgment rendered in favor of the appellee, and appeal by the appellants for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Suit to compel the transfer and conveyance by the defendants of certain shares of stock, brought to the Superior Court in Fairfield County and tried to the court, Greorge W. Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the court. Jacob M. Layton is the executor of the will of Andrew J. Crofut.

Prosecution for the violation of an ordinance of the city of Bridgeport, by collecting and transporting garbage and offal without- a license, brought to the City Court of said city and thence, by defendant’s appeal, to the Criminal Court of Common Pleas in Fairfield County, and tried to the jury before Walsh, J.; verdict and judgment of guilty, and appeal by the defendant for alleged errors in the rulings and charge of the court.

; subsequently the court, Shumway, J., overruled the remonstrance of the petitioner to the acceptance of the committee’s report denying the application, and rendered judgment for the respondent, and the petitioner appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion. A committee appointed by the court to lay out a necessary private way, must lay it out over the route described in the petition.

Action to recover damages for personal injury alleged to have been received through the negligence of the defendants, brought to the Superior Court in Hartford County and heard in damages to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $700 damages, and appeal by the defendants for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

, upon issues of fact and law raised by the respondent’s return to the alternative writ; facts found and judgment rendered pro forma for the relators, and appeal by the respondent for alleged errors in the rulings of the court. The legislation in question is unconstitutional and void.

■ Suit to determine the construction of the will of George S. Brewster, late of Stonington, deceased; brought to the Superior Court in New London County and reserved by that court, Robinson, J., for the consideration and advice of this-court. The case is sufficiently stated in the opinion.

, upon the motion of the appellants to strike out the appellee’s statement of claim; the court granted the motion and limited the parties to a hearing upon the appraisal of securities, and thereafter this valuation was determined by the court, Prentice, Ji, and, by agreement of the parties, final judgment was entered for the appellants, and the appellee appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Suit for divorce, brought to the Superior Court in New London County and tried to the court, Prentice, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

Suit to determine the construction of the will of Robert Balfour of Norwich, deceased; brought to the Superior Court in New London County and reserved by that court, Thayer, J., upon the facts stated in the complaint, for the consideration and advice of this court. The parts of the will particularly brought iu question were the ninth, tenth and eleventh articles, which were printed in the report of the case of Turner v. Balfour, 62 Conn. 89, 90.

Suit to enforce the specific performance of a contract relating to real estate, and for damages; brought to the Court of Common Pleas in New London County and tried to the court, Lucius Brown, Acting Judge; facts found and judgment rendered in favor of the plaintiff for damages, and appeal by the defendant for alleged errors in the rulings of the court. The allegations of the complaint were as follows: “ 1.

Amicable suit for the specific performance of an agreement to purchase real estate, which involved the validity and construction of the will of Edmund D. Chesebro of Stoning-ton, brought to the Superior Court in New London County and reserved by that court, Robinson, J., upon an agreed statement of facts, for the consideration and advice of this court.

Action to recover damages for injuries to the plaintiff’s horse and wagon, alleged to have been caused by the defendant’s negligence, brought to the Court of Common Pleas in Fairfield County aud heard in damages to the court, Curtis, J.; facts found and judgment rendered for the plaintiff for $178, and appeal by the defendant for alleged errors in the rulings of the court.

Appeal by the respondent for alleged errors of the Superior Court (Shumway, J.j, in the taxation of costs. Final judgment in the cause was rendered by the trial court pursuant to the opinion of this court as reported in 67 Conn. 361. The case is sufficiently stated in the opinion.

Action for damages for breach of a dredging contract, brought to the Superior Court in Fairfield County and tried to the court, Elmer, J.; facts found and judgment rendered for the plaintiff for $4,449 damages, and appeal by the defendant for alleged errors in the rulings of the court.

Miles, taken to the Superior Court in New Haven County and tried to the court, Hall, J.; facts found and judgment rendered in favor of the appellants, and appeal by the original appellees for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion. Upon the facts proved the legal presumption was that the cancellation was made by the testatrix animo revoeandi, and the burden of proving the contrary was upon the appellants.

Action to recover the amount of a promissory note made by the defendant, brought to the City Court of New Haven and tried to the jury before Dow, J.; verdict and judgment for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. This is an action on a promissory note for $225.

Action to recover for services as a broker in effecting a sale of certain real estate, brought to the City Court of New Haven and tried to the court, Bow, 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 for board, lodging, medicine, etc., furnished by the plaintiff to the wife and daughter of the defendant, brought to the District Court of Waterbury and tried to the jury before Walsh, J. ; verdict and judgment for the plaintiff, and appeal by the defendant for alleged errors in the charge of the court. The case is sufficiently stated in the opinion.

, upon the relator’s demurrer to the return of the respondent city, for the consideration and advice of this court. The railroad company, the other respondent, filed no return.

Suit in equity praying that the defendants might be required to set forth the nature and extent of the interest or estate claimed by them in certain real property alleged to be owned by the plaintiffs, and for an adjudication quieting and settling the title thereto; brought to the Superior Court in New Haven County where one of the issues was tried to the jury before Ralph Wheeler, J., resulting in a verdict and judgment for the plaintiffs, and thereafter the other issues…

Suit to restrain the defendants from proceeding to sell certain real estate claimed to he owned by the plaintiff, for the non-payment of taxes, brought to -the Superior Court in Middlesex County and tried to the court, Thayer, The case is sufficiently stated in the opinion.

<p>A verdict will not be set aside upon the ground that the jury erred in passing upon a mere question of fact, unless this court can see that the verdict is so palpably and manifestly against the evidence as to indicate that the minds of the jurymen were not open to reason and conviction, or that an improper influence, from some cause or other, was brought to hear upon their deliberations.</p>

<p>The right of a junior mortgagee to redeem a prior mortgage, is not cut off by a foreclosure decree in a suit to which the former was not a party; and this right the mortgagor, although a party to such foreclosure suit, may afterwards acquire by redeeming the junior mortgagee, in whose shoes he would then stand.</p> <p>If the junior mortgagee inherits this right of redemption from the mortgagor, the former estate will not, in equity, merge in the latter, if the preservation of his mortgage lien is essential to the collection of the debt.</p> <p>If a junior incumbrancer seeks to redeem the mortgaged premises after the foreclosure of a prior mortgage in a suit to which he was not made a party, and after the premises have been quitclaimed to a bona fide purchaser for value, by whom extensive improvements have been made in the honest belief that he had acquired an absolute and unincumbered title in fee (both he and his grantor having overlooked the recorded mortgage of the junior incumbrancer), he may be required to pay, in addition to the mortgage debt, the enhanced value of the property caused by improvements made in good faith by the purchaser before he learned or had notice of the junior mortgagee’s adverse claim; but fresh expenses incurred after such notice, are at the risk of the purchaser, and cannot throw an additional burden on the junior incumbrancer in redeeming, in case his title proves the better.</p> <p>The right of a mortgagee to redeem prior incumbrances and to foreclose subsequent ones, is but a means for the collection of his claim against the mortgagor. While the law will preserve the benefit of-that security so far as may be necessary to answer the end for which it was given, yet holders of prior mortgages may have such equities in the land, or equities agains't the subsequent mortgagee, as to entitle them to pay off his claim and become subrogated to-his title, even if, in the absence of such equities, he would have been entitled to pay them off and become subrogated to their title.</p> <p>A letter from a mortgagor to a mortgagee, alluding to the mortgage as an existing one, is not sufficient to relieve the mortgage debt from the operation of the statute of limitations.</p> <p>Section 109é of the General Statutes, relating to evidence in actions against the representatives of a deceased person, applies to claims presented against his estate, although not made the subject of an action.</p> <p>An administrator cannot waive the bar of the statute of limitations in respect to a note of the decedent held by himself.</p>

<p>Seetion 3916 of the General Statutes requires the secretary or cashier of certain corporations to deliver annually to the comptroller a sworn list of its non-resident stockholders, together with the number and market value of their shares, and to pay to the State one per cent of such value; it also provides that if the cashier or secretary neglects to comply with the statute, he shall forfeit $100 dollars to the State, in addition to the one per cent required to be paid. Section 3930 makes these returns and valuations subject to final revision by the board of equalization, upon whose valuation the tax of one per cent is to be computed; while § 3942 declares that the failure of such board to perform its duties, shall not affect suits by the State for the recovery of any sum in the nature of a tax, or for the penalty for its non-payment. In an action against the secretary of a corporation to recover one per cent upon the difference between the value of the shares as returned by him and their actual market value as claimed by the plaintiff, it was held upon demurrer to the complaint:—</p> <p>1. That in the enactment of § 3942 and the other sections of chapter 244 of the General Statutes, it was evidently the intention of the legislature that the corporation itself would be the real tax debtor, and the defendant in any action therein authorized for the recovery of an unpaid tax.</p> <p>2. That the failure of the board of equalization to revise the defendant’s valuation did not affect in any way the question of his liability for the prescribed forfeiture.</p> <p>3. That § 3916 imposed no liability for a tax upon the secretary of a corporation, and inasmuch as the plaintiff expressly disclaimed any right to recover the amount demanded by way of forfeiture, the demurrer was properly overruled.</p>

<p>In a case reserved for the advice of this court, the facts upon which the legal or equitable rights of the respective parties depend must be distinctly found by the trial court. If not so found they cannot be found or inferred by this court from the subordinate evidential facts recited in the finding, but the cause will be remanded for a further and more explicit finding, if the advice of this court is desired.</p>

Amicable suit to determine the legal duty of the respondent in respect to furnishing the inhabitants of the town of West Hartford with water; brought to the Superior Court in Hartford County and reserved by that court, Robinson, J., upon an agreed statement of facts, for the consideration and advice of this court.

Action to recover the amount of two promissory notes, brought to the Superior Court in Hartford County and tried to the court, Robinson, J.; facts found and judgmentrendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in Hartford County and heard in damages by the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $2,000, and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

David 8. Calhoun, judge of the Court of Common Pleas for Hartford County, by whom the case was referred to Lewis Sperry, Esqr., a committee to hear and report tbe facts; the judge accepted the report of the committee, which confirmed the assessment made by the city, and dismissed the appeal, and the appellants appealed for alleged errors in the rulings and judgment of the judge. The case is fully stated in the opinion.

Action brought to the Superior Court in New Haven. County by a trustee for advice as to its duties and reserved upon a finding of facts for the advice of this court.

Prosecution for keeping open on Sunday a place in which sports known as billiards and pool were carried on, brought originally to the town court of Orange and thence by the defendant’s appeal to the Criminal Court of Common Pleas for New Haven County, where the defendant demurred to the information and the court, Hotchkiss, J., reserved the questions of law arising thereon for the consideration and advice of this court.

Action to recover for building supplies, brought to the Court of Common Pleas in New Haven County and tried to the court, Hotchkiss, J. ; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The ease is sufficiently stated in the opinion.

<p>The plaintiff alleged that he was “ lawfully possessed ” of certain goods which the defendants forcibly took and carried away. The answer of the defendants did not deny this possession, but justified the taking upon the ground that they were creditors of the plaintiff’s vendor, whose sale to the plaintiff was made with the intent, participated in by the latter, to client and defraud them. Held that while this issue involved the good faith of the plaintiff as affecting his title, it did not involve the question of a valid change of possession following the sale; and that if the defendants had desired to raise this question, they should have traversed the plaintiff’s averment of possession. Held also, that the conclusion of the trial court upon this point was not, as matter of law, invalidated by certain facts tending to show continued possession by the vendor.</p> <p>The good faith of a party in making a contract is always to be determined as a question of evidence, as to which (except in case of a sale not followed by a delivery of possession which satisfies the law) the decision of the trier is conclusive.</p> <p>The institution of insolvency proceedings within sixty days after a transfer of property made in violation of the insolvent law, does not render such transfer void, but, at most, only voidable at the election of the trustee.</p> <p>Within sixty days of the defendants’ attachment a trustee in insolvency was appointed upon the estate of the plaintiff’s vendor, and the defendants, upon the demand of such trustee and in conformity to an order of the Court of Probate, surrendered the goods to him. Held that inasmuch as it did not appear from the finding that the sale to the plaintiff was made under such conditions as to render it voidable by the trustee, the defendants’ surrender of the goods to the latter could not avail them in reduction of the plaintiff’s damages. Held also that while the court could not in the present suit settle the rights of the trustee as against the plaintiff, it was proper to determine them as between the parties to the action, in so far as they were involved in the pleadings.</p>

<p>The defendant, a policeman, subscribed in blank the return on a warrant of arrest, which contained a recital that the signer had served the subpoena attached to the warrant, on the witnesses named therein. The plaintiff’s name appeared in the subpoena, but she was not in fact summoned as a witness until her arrest on a capias, issued because of her failure to appear. In a suit for damages the defendant offered to Show that it was customary in his city for the policeman making the arrest on a warrant, to sign the return, although another officer served the subpoena attached to the warrant and referred to in such return. Held that this evidence was irrelevant to the issue of negligence, and was properly excluded.</p> <p>If the negligence complained of is not gross or wanton, it is error to instruct the jury that they may award not only actual damages, but also such expenses as the plaintiff may have been put to in maintaining the suit; such expenses can be allowed only where the jury are authorized to give exemplary damages.</p> <p>While mental suffering alone does not, as a general rule, constitute a cause of action, it may be an element of damage where it is the natural and proximate consequence of a recognized cause of action.</p>

<p>Although a judgment fairly obtained against one for whom another has given a bond of indemnity, is admissible in a suit against the latter, it will not be conclusive evidence of his liability, unless it is shown that the judgment was rendered for a cause covered by the bondsman’s undertaking.</p>

<p>In laying out a highway a city is bound to comply strictly with its charter requirements. If it fails to do this and the defect in the proceedings is jurisdictional, the city acquires no interest in the land, and the landowner is not obliged to appeal from the assessment of benefits and damages, but may maintain a suit in the nature of trespass against the city when it enters upon and attempts an actual appropriation of his • land under its void proceedings.</p> <p>The charter of the city of Bridgeport authorized the Common Council to lay out highways, and provided that if after a hearing of the parties interested the Common Council should resolve to lay out the street, they should appoint a committee whose duty it should be to make the layout. Held that a layout reported and recommended by the standing committee on streets and sidewalks, which was accepted and adopted by the Common Council, did not answer the requirements of the charter, and that this defect rendered the proceedings void.</p> <p>The city claimed that the defect was a mere technical irregularity which, the plaintiff had waived and was estopped from urging, and that the: report of the assessment committee, which recited that the plaintiff, among others, “ will receive an equal amount of damages and benefits in the premises,” constituted a judgment which the plaintiff, by failing to appeal, had accepted. Held that the finding furnished no support • for the defendant’s claim of waiver and estoppel, and that the plaintiff ought not to be denied all remedy, upon the mere fiction that he had actually received and accepted a certain sum of money as damages, and thereupon paid the same amount back to the city as benefits;, especially as it did not appear that he ever participated in or had any actual knowledge of the proceedings.</p>

<p>If under a decree of strict foreclosure upon a mechanic’s lien, with judgment for possession and stay of execution until after the day limited for redemption by the last in order of several junior incumbrancers, the latter redeems within the time limited, he cannot, take any benefit from the judgment for possession. That was a mere incident of the plaintiff’s right to become, by virtue of foreclosure proceedings, the absolute owner of the land, if there should be a failure to redeem. There having been no such failure, the judgment spent its force when he collected his claim.</p> <p>A conveyance, therefore, bv the plaintiff of all his right and title by virtue of his lien and of the decree, made to the redemptioner after the redemption, while it would make him the owner of the lien conveyed, could confer no right to the issue of an execution on the judgment.</p> <p>One holding a mechanic’s lien does not thereby acquire a mortgagee’s title to the land, although the equitable relations between the lienor and the owner are otherwise substantially the same as those between mortgagor and mortgagee.</p>

<p>Section 1137 of the General Statutes provides that a party who feels aggrieved by any decision or ruling of a judge of certain specified courts, upon a question of law arising in a matter committed to his jurisdiction as a special statutory tribunal, may appeal from the final judgment of such judge “ in the manner hereinbefore provided for an appeal from the judgments of said courts respectively, to the Supreme Court of Errors next to be held in the judicial district or county where the parties or any of them reside.” Held that the judge, acting as such special statutory tribunal, was the one with whom the notice of appeal and the appeal itself must be filed, and by whom the bond must be taken and the appeal allowed; and that an appeal presented to and allowed only by the clerk of a court, must be dismissed on plea in abatement in this court.</p>

<p>Chapter 176 of the Public Acts of 1S95 provides that no action for damages for personal injury caused by negligence shall be maintained against any electric, cable, horse, or steam railroad company, unless a written notice of the injury and of the time, place and cause of its occurrence, shall have been given the company within four months after the neglect complained of; and that the notice, for in j uries occurring “ prior to the passage of this Act,” may be given within four months after it takes effect. The Act was passed on June 1st and took effect on August 1st, 1895, and the plaintiff’s injury was received on June 8th, 1895. On demurrer to the complaint for its failure to aver the giving of the statutory notice, it was held that in view of the well settled rules of construction, the statute ought not to receive a greater retroactive effect than its terms, either expressly or by clear implication, required; and ■ that so construed it did not require any notice to be given in cases of injury occurring between the date of the passage of the Act and the time it took effect.</p>

<p>A non-expert witness, having detailed the facts and, without objection, given his opinion of the mental condition of a testator, may be asked on his direct examination if he had ever observed anything in the appearance, conduct or conversation of the testator to indicate any unsoundness of mind; and the weight or value of the answer may be shown upon cross-examination.</p> <p>Where a will is claimed to be the product of an insane delusion harbored by the testator, and therefore void, it is the province of the court to instruct the jury what constitutes such a delusion.</p> <p>In the caso at bar the court instructed the jury that an insane delusion is a false belief for which there is no reasonable foundation, which would be incredible under the given circumstances to the same person if of sound mind, and concerning which the mind of the testator was not open to permanent correction through evidence or argument. Held that this definition was as accurate as could reasonably be expected or required, especially when read in connection with the other portions of the charge relating to testamentary capacity, in which the law of that subject was fully, clearly and unexceptionably presented to the jury.</p> <p>An assignment of error to the effect that the charge of the trial court, taken as a whole, was not a full and fair presentation of the claims of the appellants, nor of the legal questions involved in the trial, is too general, and in violation of the rule of this court as to specific assignments of errors.</p>

; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

Action for an accounting and for the recovery of the amount found due, brought to the Superior Court in Fair-field County and tried to the court, Q-eorge W. Wheeler, 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. , The plaintiff’s claim was barred by the statute of limitations. Lathrop v. Atwood, 21 Conn. 116.

<p>Under onr present practice, if the facts alleged in a complaint and proved on the trial, satisfactorily establish a cause of action against the defendant for a breach of contract, the plaintiff is not precluded from claiming in argument a judgment upon that ground, merely because he- had, in arresting the body of the defendant and in one clause of a demurrer to a plea in abatement, treated the action as one of trover; especially if it appears by the record that the demurrer might have been sustained upon other grounds than an abandonment of the plaintiff’s right to recover upon the theory of a contract action.</p>

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County and heard in damages to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $1,500 damages, and appeal by the defendant for alleged errors in the rulings of the court.

<p>Whether the voluntary amendment of a pleading adjudged insufficient on demurrer, constitutes a waiver of the right to except to the ruling on the demurrer, quaere.</p> <p>A de jure municipal board authorized to act for the municipality in making contracts of a certain class, may ratify and confirm a contract of that description, executed by it in behalf of the municipality when acting as a board defacto; and, if the contract is otherwise valid, such ratification is in legal effect an acceptance and approval by the • municipality itself, of the action of the de facto board.</p> <p>The reference to and recognition of such contract in a bond given to the municipality for the due performance of the contractor’s undertaking, estops the obligors, when sued thereon, from denying the authority of the board to represent the municipality, both as to the contract and as to what was done in execution of it.</p> <p>Such estoppel is sufficiently pleaded, if it is the necessary legal conclusion from the face of the bond which is by reference made part of the complaint.</p> <p>The municipal board took the bond into its possession but never formally voted to accept it. Held that such a vote was not essential.</p> <p>Sureties are not entitled to express notice of the acceptance of their obligation, where the bond is absolute in terms and is executed contemporaneously with the contract it is given to secure, and as part of the same transaction.</p> <p>Material changes in the details of a plan on which a construction contract is based, or in the mode of determining, making and applying the payments therein agreed upon, will release t.he sureties of the contractor from liability on their bond, unless the power to make such alterations is reserved in the contract.</p> <p>If the necessity for making changes permitted by the contract is to be determined by the supervising engineer, the sureties cannot complain because they were not notified of the changes actually required.</p> <p>A clause in the contract in question provided that cash payments made before the completion of the work should in no way affect or alter the conditions of the contract. Held that this referred to the continued liability of the contractor for the character of his work, but did not justify, as against the sureties, material variations in the mode of payment, which tended to diminish the fund to be reserved till the final acceptance of the work, for the purpose of insuring its satisfactory execution.</p> <p>A surety is not bound to be on the watch for variations which may be made in the obligations of his principal; nor can his liability be enlarged by actual notice thereof, without his acquiescence or consent.</p> <p>A letter of the supervising engineer recommending a payment to the contractor of a lump sum, although no estimate had been made as required by the contract, was offered by the plaintiff. Held that it was inadmissible and, as against the sureties, did not justify the payment made on the strength of it.</p> <p>Section llOS.of the General Statutes permits, but does not require, a judgment against part only of joint defendants. Accordingly if the plaintiff fails to ask for judgment against a single defendant on the ground of his several liability, but frames his pleadings and tries his case upon the assumption that the defendants are jointly liable, the failure of the trial court to render a judgment against the defendants severally liable, affords the plaintiff no just cause of complaint in this court.</p>

Prosecution for violations of the liquor law, brought to the Superior Court in Windham County and tried to the jury before George W. Wheeler, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings of the court. The ease is sufficiently stated in the opinion.

<p>Under the provisions of the charter of the city of Putnam (Special Acts of ■ 1895, p. 256), an appointment hythe common council of a captain of police, is not reviewable by and subject to the veto of the mayor.</p>

<p>The individual liability imposed by § 3951 of the General Statutes, as . amended by Chap. 140 of the Public Acts of 1S93, upon the stockholders in certain specified corporations, for the company's debts, is that of a guarantor.</p> <p>It is immaterial that the debt was incurred by the corporation before the defendant became a stockholder therein.</p> <p>This statutory liability rests upon the stockholder of record, irrespective of the fact that he held the stock as collateral security.</p> <p>A guarantor when sued on his contract cannot set off a debt due him from his principal.</p>

Wheeler, J., for the consideration and advice of this court. The case is sufficiently stated in the opinion. The trust attempted to be created is not for a charitable use, and is therefore contrary to the statute against perpetuities. The bequest adds nothing to what the poor are entitled to receive from the town, and which the town of Plainville is bound by law to supply its poor. The precise question arising in this case is a new one.

<p>The personal disabilities imposed upon married women by the common law, as well as by the statutes of this State prior to 1877, precluded them from making any contract as surety or guarantor for their husbands; and this disability still applies to women married before 1877, unless removed by mutual agreement as indicated by the statute then enacted.</p> <p>Coverture creates a status involving certain relations between the woman and the rest of the community, which, being determined by law, cannot be varied by her acts or agreements.</p> <p>A contract which a woman married and domiciled in this State lias no legal capacity to make here, cannot he made by her elsewhere through the interposition of an agent whom she assumes to constitute for such purpose in this State.</p>

John M. Thayer, a judge of the Superior Court, in vacation; facts found and judgment rendered dismissing the application, and appeal by the plaintiff for alleged errors in the rulings of the judge. This was an application to a judge of the Superior Court, in vacation, to issue a writ of prohibition against the Court of Common Pleas in Litchfield. County, and Arthur D. Warner, the judge of that court.

Hiñe, late of Milford, deceased, taken to the Superior Court in New Haven County and tried to the jury before Shumway, J.; verdict and judgment for the appealing heirs at law, and appeal by the executor for alleged errors in the rulings and charge of the court. The executor also moved the Superior Court for a new trial for a verdict against evidence, and this being denied, filed a similar motion for the consideration and action of this court.

<p>The personal property of a woman married between 1849 and 1877, is always hers in equity, subject only to the husband’s legal title and to his life use of the accruing income.</p> <p>An assignment in insolvency by the husband does not pass any title to the personal property of the wife held by him as her statutory trustee, and used in a mercantile business carried on by him as her agent. But if the wife joins her husband in requesting the assignee in insolvency to take and hold possession of such property under such assignment, and lie does so, the wife must be treated as she if were a feme sole in regard to the transaction, and so regarded, is estopped from afterwards disputing the legality of the assignee’s possession, as well as his right to a lien on the property for his services and disbursements. Under these circumstances the assignee acquires a lien, not because he has the title, but because the wife who has it, has subjected it to a charge in his favor for acts done at her request and for her benefit.</p> <p>An appeal properly taken to this court will not he erased from the docket on the ground that the trial court had no jurisdiction of the action: the appeal, certainly, is within the jurisdiction of this court, whatever may be said as to the jurisdiction of the trial court over the original cause.</p>

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, brought to the Superior Court in New Haven County and tided to the court, Shumway, The amended complaint was as follows: “ On the 4th day of February, A. D. 1895, the defendant was managing and operating a street railroad in the town of New Haven, and in particular along and at a point in Chapel Street in said city of New Haven where said street is intersected by…

Action to recover the defendant’s alleged share of the expense of constructing tide-gates, brought originally to a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas for New Haven County and tried to the court, Hotchkiss, 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.

Suit to restrain the defendant from proceeding with an action of summary process against the plaintiff, brought to the Court of Common Pleas in Hew Haven County and tried to the court, Hotchkiss, J., upon the defendant’s demurrer to the complaint; the court overruled the demurrer and rendered judgment for the plaintiff, and the defendant appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

<p>The word “ inhabitant” of a town, in § 3288 of the General Statutes relating to paupers, is used in its ordinary, popular sense, and means a resident of the town,—one who has an abode or dwelling-place there.</p>