Volume 8 — Connecticut Reports

IN ERROR. This was a bill in chancery for the payment of a legacy from the proceeds of the real estate of the testator. The case, as stated in the bill and answer, and found by the court, was as follows.

This was an action on a promissory note of the tenor following: “Granby, August 16, 1816. In four years after date, I promise to pay Jacob Edgerton one hundred dollars, and interest. Lanson Edgerton ” The declaration contained three counts. One was on the note in the usual form, except that instead of an averment of value received, the allegation was “ meaning for value received.” The second averred, that for a valuable consideration, the defendant executed the note.

This was an action of assumpsit on an agreement regarding the sale of a vessel, by the defendant, to the plaintiffs.

IN ERROR. This was an action on the covenants in an indenture of apprenticeship; tried at Hartford, February term, 1830, before Bissell, J. The… Held: that the plaintiff’s having unwarrantably refused to obey the commands of the master, did not preclude him from a recovery against the master on the covenant of the latter to instruct and maintain the plaintiff during the stipulated term. The same principle is upheld by the cases of Campbell v. Jones, 6 Term Rep. 570. 1 Wms.

This was an action on the covenants of seisin and of good right to convey in a deed of land, sold to the plaintiff, by the defendants, as administrators of the estate of John Chenevard jun. deceased, and by virtue of an order of the court of probate, for the payment of the debts due from such estate.

This was a bill in chancery to foreclose certain mortgaged premises; tried in the superior court, held, at Hartford, February term, 1830, by Bissell, J. To this bill the defendants pleaded usury, and… Held: at Hartford, February term, 1830, by Bissell, J. To this bill the defendants pleaded usury, and offered evidence of certain facts tending to shew usury, as stated in their plea. To the admission of this evidence the plaintiffs objected; and it was rejected by the court.

This was an action of ejectment for a tract of land in Glastenbury, claimed by the plaintiffs, in the right of Eunice Hale, the wife. The cause was tried, on the general issue, at Hartford, February term, 1830, before Bissell, J. Israel Hills, in his life-time, was the undisputed owner of the demanded premises. He died intestate, on the 17th of September, 1827. Eunice Hale, one of the plaintiffs, is one of his children and heirs at law.

This was an action of ejectment; tried, on the general issue, at Hartford, February term, 1830, before Bissell, J. The plaintiff claimed title to tho land demanded, by virtue of two executions in his favour against John Winchell jun. the grantor of the defendant, levied upon such land as the estate of John Winehell jun. One of these executions was for the sum of 79 dollars, 39 cents; and the other, for 38 dollars, 34 cents.

This was a bill in chancery. The case was as follows. On the 5th of October, 1799, William Bull of Litchfield made his will, by which, after making provision for his wife and certain other relatives, and giving the use of the property in question to her, during life, he devised thus: “All the rest and residue and remainder of my estate, both real and personal, I give and bequeath unto my two brothers James Bull and Thomas Bull, whom I make and appoint my executors to this my…

This was an action of assumpsit to recover of the defendants the sum of 3000 dollars, deposited in the Eagle Bank mider the following agreement: “This agreement, made by.and between Daniel Potter, Jacob Hemingway, Samuel Camp jun., Leverett Bishop, and Seth Thomas, all of Plymouth, in Litchfield county, of the first part, as they are a committee of the sub-senders to raise a fund for the benefit of the congregational society in Plymouth, and James Hillhouse, treasurer of…

IN ERROR. This was an action brought by Ozias Seymour, sheriff of the county of Litchfield, and keeper of the gaol, against Wayeham Harvey and two other persons, for the escape of Harvey from the liberties of the prison.

These were actions on a promissory note of the following tenor: For value received, I promise to pay Mrs. Hannah Beach, or order, five hundred and fifty-six dollars, on demand, and with interest. Goshen, May 14th, 1823. Frederick A. Norton, an executor on the estate of Birdsey Norton, deceased.” The declaration, in one suit, contained two counts.

IN ERROR. This was a bill in chancery, brought by the heirs and devisees of Daniel Andrews, deceased, against his widow, Jemima Andrews, for a release or an extinguishment of her right of dower in the estate of her late husband. On the 2nd of December, 1823, Daniel Andrews, then seventy-four years of age, entered into a contract of marriage with Jemima Copps, the present defendant, who was then seventy-three years of age.

IN ERROR. This was an appeal from a decree of the court of probate, allowing to the executors of John Edmond, deceased, (the present defendants in error) their administration account, including a charge for paying a debt to Lovey Edmond of 950 dollars, principal, and 30 dollars, 33 cents, interest.

This was an indictment against the prisoner, Thaddeus K. De Wolf, for an attempt to commit a rape on the body of Celestial Bull, on the 15th of June, 1828.

IN ERROR. This was an action on the case, brought by Naaman Case against Ansel Humphrey, for a false return of “a certain instrument or writing purporting to be a writ of attachment.’’ The declaration stated, that on the 16th of September, 1823, Benjamin Weed jun., then a justice of the peace, made and delivered to the defendant, to serve and return, a certain instrument or writing, purporting to be a writ of attachment, in favour of Benjamin Weed against the plaintiff and…

This was an action brought in the name of Reuben Booth, Esq. judge of probate for the district of Danbury, on a bond executed by Theophilus Patrick and Stiles Patrick, to the plaintiff, the condition of which was, in the form prescribed by statute, (p. 201.) that Theophilus Patrick, as administrator of the estate of James Patrick, deceased, should faithfully discharge the duties of his trust. The defendants pleaded performance, setting forth the condition in their plea.

IN ERROR. This was an action of trover for a cow, brought originally, by Scofield against Lounsbury, the captain of a militia company to which the plaintiff belonged, and Earl Smith, a constable of the town of Stamford, in which both the parties lived.

IN ERROR. This was an action of book debt, brought by Truman Smith, against Elisha L. Silliman and George Cooke, to the county court of Fairfield county, holden on the third Tuesday of November, 1823, by writ of foreign attachment, dated the 30th of August, 1823, describing them as “late merchants in company of New-Canaan, trading under the firm of Silliman Sf Cooke, but now absconded out of the state.” By the record of the county court, holden on the second Tuesday of…

This was an action of assumpsit for the support of the wife and minor children of Samuel Darling. The cause was tried (after two former trials,) (a) at Fairfield, December term, 1829, before Williams, J. The paupers derived their settlement from Lucy Darling, the mother of Samuel Darling. She was once an inhabitant of the town of Weston.

This was an action on the case for a nuisance to the plaintiff's meadows, by raising and continuing a mill-dam at Cumpo Creek, and by filling up New Creek, in the town of Fairfield. The cause was tried at Fairfield, December term 1829, before Williams, J. The defendants admitted, that in 1814, they erected a mill-dam on Cumpo Creek ; and that, in the same year, they filled up New-Creek; and the question on the trial was, whether these acts were rightfully done by them.

This was an action on the case for the seduction of Abigail Lockwood, the daughter of the plaintiff; tried at Fairfield, December term, 1829, before Williams, J. On the trial, the plaintiff introduced his daughter Abigail, as a witness, who testified, That previous to the 15th of May, 1825, she was seduced, by the defendant, under a promise of marriage, and was, on the evening of that day, begotten with child by him ; that after she knew of her pregnancy, he visited her, and…

This was an action of trespass quare clausum fregit; tried at Fairfield, December term, 1829, before Williams, J. Both parties claimed title to the land in question as formerly the property of Sylvanus Starr. The defendant claimed by a mortgage deed from him, dated the 27th of January 1823, and by a release deed, dated the 9th of April 1824.

IN ERROR. This was an action of assumpsit, brought by Jotharn Sherman against Andrew Barnes, on a special agreement, alleged to have been made, by the defendant, with the plaintiff, on the 16th of February, 1825. The action was commenced on the 6th of March, 1828.

This was a bill in chancery, stating the following case. Held: was a special, as contra distinguished from a general or annual meeting. The adjourned meetings are obnoxious to the same objection. Thirdly, the power, if valid, was not pursued.

This was a petition to the county court, brought by Waterbury and others, against the town of Darien, stating, that public convenience and necessity require, that a new highway should be laid out in said town, leading from the South end of Hoyt street, running in a South-Easterly direction, through certain lands particularly described, a distance of 247 rods, to intersect the Hollow-tree ridge road near the dwelling-house of A. Waterbury, in said Darien; shewing the nature…

This was an action on the statute concerning fences and common fields, brought before a justice of the peace; where the parties agreed upon a statement of facts, subject to the opinion of the superior court. A case thus made was entered in that court, and reserved for the advice of this Court. It was now submitted without argument.

IN ERROR. This was a petition for a divorce, brought by Sarah Ferris, against her husband Abel Ferris.

This was an action, brought by Henry Daggett, jun., surviving partner of the late firm of Atwater & Daggett, on a promissory note, for 30 dollars, 64 cents, dated New-Haven, July 30th, 1802, payable… Held: that the defendant’s absence abroad rebutted the presumption of payment from lapse of time. See also Jackson v. Pierce, 10 Johns. Rep. 417. Baily v. Jackson, 16 Johns. Rep. 214. Hillary v. Waller, 12 Ves. 266. Phill. Ev. 114. n. b. 2.

This was an action of book debt; tried at New-Haven, January term 1830, before Daggett, J. The accounts between the parties, which were large, had never been adjusted. The plaintiffs claimed a balance of more than 2,000 dollars. The last item of their account accrued in 1819, more than six years before the commencement of the present action.

This was an action of trespass quare clausum fregit; tried at New-Haven, January term, 1830, before Daggett, J. The plaintiff claimed title to the land described in the declaration, by the levy of three executions thereon, in 1826 and 1828, in his favour against Noadiah Norton jun. The defendant claimed title to the land, by virtue of an absolute quit-claim deed from Norton, dated the 26th of April, 1813, to Reuben Elliott and others.

This was a bill in chancery to foreclose the interest of the defendants in certain real estate mortgaged to the plaintiffs, by The President, Directors and Company of the Eagle Bank. Held: that though he could give notes, borrow money and do many other acts in the ordinary course of business, he could not mortgage land. That was not deemed ordinary business.

This was a bill in chancery for the foreclosure of mortgaged premises. Held: that the case was not within it, as the description of the mortgage debt was sufficiently certain. The same principle was applied to the case of Shepard v. Shepard & al. 6 Conn. Rep. 37. where the condition was considered as “perfectly indefinite,” referring to no subject matter, and limited to no time.

This was an action of ejectment, for an island in Connecticut river. The cause was tried at Haddam, August term, 1829, before Bissell, J. The demanded premises consist of about thirty acres of land, situated in Connecticut river, at the distance of about twenty rods from the low-water mark on each side of the river.

This was an action of debt on bond. The declaration stated, that the defendant, by his certain writing obligatory, signed with his hand, and ready in court to be produced, acknowledged himself bound to the plaintiff in the sum of 1000 dollars, subject to a condition, whereby, after a recital to the following effect, that whereas there was then pending before the superior court in Middlesex county an action of book debt, in the name of Matthew T. Russell, the present…

This was an action of trespass, for entering upon the fishing-place of the plaintiffs, in Connecticut river, opposite the town of Chatham, in which the plaintiffs had an exclusive right of taking fish, and in interrupting the plaintiffs in the enjoyment of their right, and taking and carrying away therefrom 5000 shad.

IN ERROR. This was a petition for a highway within the limits of the town of Middletown.

IN ERROR. This was an action, brought in the name of the borough of Killingworth, against Jonathan Willard, before Jared Elliott, Esq., a justice of the peace, to recover a penalty for taking in… Held: did not appear from the face of the vote to have been specified in the warning of such meeting; and the plaintiffs offered no other evidence in relation to the warning, than the vote itself.

This was an appeal from the decree of the court of probate for the district of East-Haddam, establishing the will of Charity Parmelee,… Held: that if a will be defective and ineffectual as to any material part of the estate intended to be devised or bequeathed, it cannot be allowed as a will of the other part of the estate; because in distributing one’s estate, each devise and bequest is, in some measure, the condition of every other. Osgood v. Breed, 12 Mass. Rep. 525.

This was an action of assumpsit, brought by Elisha Coit, surviving partner of the late firm of E. & W. Coit, against Benjamin Coit and Elisha Tracy, commenced on the 8th of November, 1827. Held: that an admission of one, was an admission by all, that the debt was due. Whitcomb v. Whiting, Doug. 652. The old case cited from 2 Vent. 151. (Bland v. Haslerig) does not support the doctrine.

IN ERROR. This was a bill in chancery, brought by Peter B. Strong and Joanna, his wife, and James Woodworth, and Susanna, his wife, against Roger Bailey and Abel Gay, stating the following facts: That Samuel Bailey, now deceased, had, during his life, advanced to several of his sons the sum of 1000 dollars, each, and had expressed his intention to advance the like sum to his son Roger, one of the defendants; that he afterwards became insane, and so continued until his death;…

This was an action of ejectment for a piece of land in Colchester; tried, on the general issue, at Norwich, January adjourned term, 1830, before Peters, J. The plaintiff claimed title by the levy of an execution in his favour against Elias W. Newton. The judgment on which that execution issued, was rendered in an action brought by the plaintiff against Newton, by writ of attachment, in common form, and served on the 9th of June 1827, by attaching the land in question.

IN ERROR. This was an action on a promissory note of the tenor following: $33 34. “Mansfield, Feb. 6th, 1811.

This was an action of ejectment, for a tract of land in Plainfield, tried at Brooklyn, January term, 1830, before Hosmer, Ch. J. On the 15th of February 1815, Manuel Kinne, being owner in fee simple of the tract of land in controversy, executed a deed thereof to Elijah Wheedon by name, and delivered it to Elijah Wheedon, jun., who caused it to be recorded. The negotiation was between Kinne and Elijah Wheedon, jun., and the deed was intended for his benefit.

This was an action on a covenant in the following terms: This agreement made by and between Joseph Scott and Hazard, Hull, both of Willington, in Tolland county, witnesses, That whereas I, the said Hazard Hull, have and do, by these presents, agree and bind myself, my heirs, executors and administrators, to provide for, and maintain and support the said ,Joseph Scott and Lucy Scott, his wife, with every thing necessary and comfortable, both in sickness and in health, during…

A new trial having been granted, pursuant to the opinion of this Court, ante 19—34., the cause was tried again, on the same issue, at Hartford, September term, 1830, before Hosmer, Ch. J. The plaintiff having exhibited in evidence the deed of the defendants to him, dated the 17th of March, 1812, (recited ante, 20.) to shew a breach of the covenant of seisin in that deed, offered to read in evidence, a copy, duly authenticated, of the record of a judgment of the superior…

This was an action in favour of the holder of a negotiable promissory note, dated the 24th of June 1829, for 750 dollars, made by Henry Benton, payable to the defendant, and by him indorsed to the plaintiff.

This was an action of debt on an award of arbitrators for the sum of 301 dollars, 26 cents, in favour of Joseph Pitkin and Edward Pitkin.

Tins was an action of trespass for taking and carrying away a barouche and harness. The cause was tried at Hartford, February term, 1831, before Peters, J. The claim of the plaintiff for the harness, was abandoned at the trial; and the controversy regarded the barouche only.

This was an action brought by the plaintiff, as the indorsee, against the defendant, as the indorser of a promissory note, for 375 dollars, made by one Stevens, payable to Henry Benton, or order, ninety-five days afterdate.

This was an action on the case, brought by Lydia Hine and Clarissa Hine, alleging, that the plaintiffs, with Samuel W. Barnes, had obtained from Levi Merriman, who has since become bankrupt, a deed of his land in Granby, for the security and payment of their respective debts, viz. a debt to the plaintiff Lydia of 300 dollars, and to the plaintiff Clarissa of 250 dollars, and to Barnes a sum not specified; that such deed was left, by the plaintiffs, with the town-clerk of…

These suits were a bill in chancery, brought by Jonathan T. Hudson against Daniel Wadsworth and wife and Benjamin Silliman and wife; and a… Held: that heirs meant heirs of the body, and that leave meant at his death, and therefore, the limitation over was good. See also Nichols v. Skinner, Prec. Chan. 528. Atkinson v. Hutchinson, 3 P. Wins. 258. Read v. Snell, 2 Aik. 647. 3rd point. 4. That the prayer of the cross-bill ought to be granted. First, as to the security.

IN ERROR. This was an action on the case, brought by Osborne against Watson, for fraud in passing to the plaintiff certain bank bills, as the bills of a solvent bank, knowing such bank to be insolvent. The declaration contained two counts.

Tuts was an action of ejectment for a small piece of land, being the site of a building occupied for a carding machine, on the South side of Farmington river, in the parish of Poquonnock in Windsor. The cause came on for trial, on the general issue, at an adjourned term in Hartford, in May 1831, before Daggett, J., when a case, embracing the following facts, was agreed to, by the parties, and reserved for the advice of this Court, as to what judgment ought to be rendered.

This was an action of trespass for assault and battery, and false imprisonment, and the extortion of money thereby from the defendant. The defendant pleaded the general issue, and gave notice that he should justify under certain convictions of the plaintiff, before the defendant, as a justice of the peace.

This was an action on the case against the defendant, as sheriff of Hartford county, for neglecting and refusing to assign and deliver to the plaintiff a bail bond, executed, in April 1829, by Benjamin H. Norton as principal, and Oliver E. Williams, as surety.

This was a bill in chancery, stating, That on the 21st of March 1815, one Lemuel Swift mortgaged certain premises (particularly described) to Nathaniel and Abigail Chauncey, to secure payment of the amount of a promissory note for 500 dollars, dated the 17th of March 1815, and payable in two years from the date thereof, with interest: That said note was not paid according to the tenor thereof, but was, soon after it became due, taken up, by said Swift, by giving a new note…

This was an action of assumpsit. The declaration alleged, That Elisha Pitkin, a settled inhabitant of East-Hartford, died in August, 1819; that he left, at his decease, a negro female slave, named… Held: by Hosmer, Ch. J. delivering the

This was an appeal from a decree of the court of probate, accepting and approving a distribution of the estate of Elisha Strong, deceased, made by his executors, under his will.

This was an action of book debt, which was referred to auditors. On the trial before the auditors, the plaintiff claimed to recover on two items only of his account, viz. the sums of 150 dollars and 100 dollars—“Cash by Elijah Ellsworth.” These charges were admitted to have been made in the year 1814; and the defendant relied on the statute of limitations as an answer to the demand.

This was an appeal from a decree of the court of probate for the district of Woodbury, passed on the 10th of June, 1829, dismissing the petition of James B. Fairman, administrator at the estate of Timothy Shepard, deceased, against Orphia Bacon, sole surviving executor of the will of Garry Bacon, deceased.

This was an action of assumpsit, brought on the guaranty of a promissory note, made by Garry H. Wheeler, dated October 31st, 1827, payable to Hiram Terrell, the plaintiff, sixty days after date.

This was an action on a promissory note, for 500 dollars, dated the 31st of December, 1825, payable to Thomas Swift, the plaintiff, or bearer, on the 1st of October 1826. Held: that the proof accumulates in proportion to the number of trials and the severity of the contest; so that what is insufficient on the first trial, ought to satisfy the jury on the third. 1.

This was an action of trespass quare clausum fregit; tried at Litchfield, February term, 1831, before Williams, J. The plaintiff and defendant were adjoining proprietors of land; and the land in controversy was the border between them, which was wood-land, unfenced. Both parties claimed under William French, the father of the plaintiff and of the defendant’s wife.

This was a bill in chancery, brought to the county court, by Ovid Plumb and Frederick Plumb, partners tinder the firm of O. & F. Plumb, against Ezra Donalds and William Kingsbury and Abigail S. Kingsbury, his wife.

This was an action on a policy of insurance against loss or damage by fire, to the amount of 2000 dollars, for one year from the 3rd of September, 1827, on a wooden building in Norwalk, owned and occupied by the plaintiff, as a manufactotory of hat bodies, and on the privilege for all the process of said business, on machinery contained in said manufactory, and on the plaintiff’s dwelling-house.

This was an action on a promissory note; to which there was a plea of non-assumpsit; and on that issue, the cause was tried, at Danbury, September term, 1830, before Daggett, J. The execution of the note was admitted. The defence was, that there was no consideration for it. It was given under the following circumstances.

This was an action of assumpsit for the price of a church clock; to which a count on two drafts and the common counts, were added. The cause was tried at Danbury, September term, 1830, before Daggett, J. At the request of the defendants, the plaintiff made a clock, and set it up in the Presbyterian church in the borough of Bridgeport.

IN ERROR. This was an action against the plaintiff in error, as sheriff of the county of Fairfield, for the escape from gaol of Hezekiah Newman, committed on an execution in favour of the defendant in error.

This was a petition for the benefit of the insolvent act, brought by Philer Betts against his creditors. At the term of the superior court, in September, 1830, the petitioner and Edmund Lockwood, one of the respondents, appeared and were fully heard. The other respondents suffered a default.

This was an action of trover, for 2000 hat bodies, by writ dated November 4th, 1828. The cause was tried at Fairfield, December term, 1830, before Hosmer, Ch. J. On the 3rd of April, 1828, William Harrington was the general owner of 1600 of the hat bodies mentioned in the plaintiffs’ declaration; and he, at the same time, owed the plaintiffs a debt of 293 dollars, 18 cents, being the balance of their mutual book accounts.

This was an indictment against Nichols, in the following words: “That on the 27th of September, 1830, at Stamford, one William Nichols did, with force and arms, wickedly, wilfully, feloniously, and of his malice aforethought, make an assault upon the body of one Rufus Newman, then and there in the peace being, with an intent him the said Rufus to kill and murder; and did, then and there, with force arid arms, wickedly, wilfully, feloniously and of his malice aforethought,…

IN ERROR. This was an action of book debt, in common form, brought by Lacey against King, demanding 280 dollars. In the county court, the defendant demurred to the plaintiff’s declaration; the plaintiff joined in the demurrer; and the court adjudged the declaration sufficient. The defendant thereupon appealed the cause to the superior court.

IN ERROR. This case having been brought before this Court, on motion in error, by the defendant below, and having been argued and submitted for decision; it appeared, that there was no assignment of errors, except the following: “The said Bissell claiming that the declaration of the plaintiff in said cause is insufficient in law, and that the superior court erred and mistook the law in rendering judgment against him, as aforesaid, in this, viz. that the said declaration is…

This was an action by the indorsee against the maker of a a promissory note. The cause was tried, under the general issue, with notice of the matters relied on for defence, at New-Haven, at an adjourned term in April 1830, before Bissell, J. The note in question was one for 500 dollars, signed by the defendant, dated the 2nd of September, 1825, and payable to William S. Rossiler, cashier of the Eagle Bank, or order, sixty days after date.

This was an action of assumpsit founded on a guaranty, given by the defendant to the plaintiffs, commission merchants in New-York, to secure them for advances, which they might make to and for the benefit of Miles, Strong & Miles, who were traders in the country.

IN ERROR: This was an action qui tam, brought originally by Evarts against Bartlett, before a justice of the peace, for a penalty given in the 1st section of the act concerning Nuisances, for… Held: that proof of the speaking of the words, which were the foundation of the action, could not go to the jury, unless accompanied with the proof of the time when they were spoken.

IN ERROR. This was a bill in chancery, brought by Skinner against Judson, for a discovery, to be used as evidence in an action of ejectment between the same parties, depending in the superior court.

This was an action of assumpsit, for contribution; commenced July 31st, 1827. Arthur W. Mag ill was appointed cashier of the office of discount and deposite of the Bank of the United States at Middletown, and gave bond, with the plaintiff, the defendant and Nathan Starr, as sureties, for the faithful performance of his duty.

This was an action of ejectment; to which the general issue was pleaded. The case was as follows. In the year 1799, the plaintiff became the wife of John L. Lewis. In 1820, George Starr, the father of the plaintiff, died, seised of the demanded premises; and immediately thereafter, the fee thereof was vested in the plaintiff, as his heir, and the right of possession in Lewis, her husband.

This was a bill in chancery to correct a mistake in a mortgage deed and to obtain a decree of foreclosure, brought by George Carter, against Epaphroditus Champion, William Carter and others. The defendants were all defaulted, except Champion, who appeared and filed his answer.

This was an action of assumpsit upon a written guaranty in the following words: “Middletown, May 23rd, 1823.

IN ERROR. This was an action of debt on a bond, given to the plaintiff, as judge of probate for the district of Middletown, by the defendant Thomas Mather, as administrator de bonis non cum testamento annexo of Benjamin Williams; the defendant, Samuel Mather, being the surety. The defendant prayed oyer of the bond and condition and recited them, and then pleaded performance. The plaintiff replied, setting forth sundry matters as breaches.