Volume 9 — Connecticut Reports

A new trial having been granted, pursuant to the decision of this Court, in 8 Conn. Rep. 268 — 278. the cause was tried again, at New-London, September term, 1830, before Dag-B'ett. J. The plaintiff gave in evidence the same record and proceedings on the bill in chancery brought by Tracy against E. Coit and B. Coit, including the finding and decree of the court, with the answers of the defendants and the accounts and original letters, which were exhibited on the former trial.

This was a bill in chancery against Isaac Chapman and Abner JHendee, administrator of the estate of David Deming, deceased, seeking such relief as in equity and justice was due to the plaintiff. Deming, as the surety of Chapman, indorsed three promissory notes of his, payable at the Middletown Bank. Chapman, at the same time, gave Deming a mortgage of land, as collateral security for his indorsements.

This was an action on a bond given to the plaintiff, as judge of probate, by the defendant, Samuel Hyde, as principal, and Joshua Tracy, as surety, for the faithful performance of the trust of Hyde as executor of the last will of his father Joseph Hyde. The cause was tried, on the plea of non est factum, at New. London, September term, 1830, before Daggett, J. On the trial, the execution of the bond was admitted.

This was a bill in chancery, brought by Benjamin Coit, against Elisha Tracy, stating, that they, with divers other persons heretofore associated for the purpose of prosecuting a sealing voyage to the Pacific Oceanthat of this association the plaintiff and defendant were the agents and trustees ; that divers large sums of money had been, by them, as such agents and trustees, laid out and expended, and divers other large sums had been by them received ; and that, though the…

This was an action of assumpsit against Nehemiak Porter and John Porter. The declaration consisted of several counts. The first was a general count for goods sold and delivered to the defendants. The second count stated, that the defendants and one Daniel’Burrows, jun., since deceased, being manufacturers, carrying on business in the name of Daniel Burrowst jun., were indebted to the plaintiff for goods sold and delivered to the defendants.

This was a complaint, exhibited by the state’s attorney, to the county court, describing- a highway in the town of Franklin, crossing the Shetucket river in that town, and then averring, that a bridge, known by the name of Woods' bridge, was theretofore built and placed over and across said river in said highway, as a public bridge, and so continued for many years thereafter ; but that for many years past, there has been no bridge across said river in said highway, whereby…

This was an action for trespass for entering upon the plaintiff’s land and taking therefrom a quantity of sea-weed.

This was an action on the case against the sheriff of New-London county, to recover damages for the failure of his deputy, Raymond, to levy, according to law, two executions in favour of the plaintiff against John Chapman.

This was an indictment for the murder of the prisoner’s wife, Roxana Watkins ; to which he pleaded Not guilty. The cause was tried at Brooklyn, October term, 1830, before Williams, J., assisted by Bissell, J. No direct evidence of the murder was offered ; but the evidence given was wholly circumstantial or presumptive.

Tins was an action for a libel ; tried at Brooklyn, October term, 1830, before Williams, J. The plaintiff produced the paper alleged in the declaration to be a libel, and offered to shew, that it was in the hand-writing of the defendant, by shewing other writings of the defendant, which were proved to be genuine and to have been written by the defendant, to be compared by the jury with the paper so set forth in the declaration.

This was an action of trover for certain; articles of machinery used in a cotton manufactory» The cause was tried at Brooklyn, October term, 1830, before Williams, J. Both parties claimed title to the property under deeds from Charles Lee.

This was an action on the case, for diverting, by means of a dam, a stream of water, which had been accustomed to flow through the defendant’s land, and thence on to the plaintiff's ; by which diversion the plaintiff had sustained an injury.

This was a bill in chancery, stating, That on the 19th of June 1829, Thomas Brown was indebted to the plaintiffs, severally, in divers sums of meney particularly specified; that with intent to hinder, delay and defraud them, and to prevent the payment and collection of their debts, and to place his property out of the reach of legal process, and preserve it for his own use, he then combined and conspired with his sons Thomas A. Brown, Owen Brown, and Fenner Brown, to give…

This was an action on a promissory negotiable note, brought by the payee against the makers. The defendants pleaded sundry matters in bar. In one of the pleas it was averred, That after the service of the plaintiff’s writ, and before the return day, he, the plaintiff, by. his indorsement of said note, transferred, assigned and delivered it to Steelman & Gordon, of Hartford, who thereby became, and have ever since continued to be, the lawful owners thereof.

Tins was a bill in chancery, stating the following case. Levi Wheaton, the plaintiff, is the son of James Wheaton, the defendant.

This was an appeal from a decree of the court of probate, approving the last will and testament of Manuel Kinne, deceased. The will was dated the 13th of June, 1827 ; and the testa-, tor died about eighteen months after that time. The reason assigned for the appeal, was, That the devisor was not of sound mind and memory ; upon which issue was joined to the jury.

This was an action on the case for a false affirmation in the sale of a horse by exchange. * The cause was tried at Tolland, October term, 1830, before Peters, J. On the trial, fine plaintiff adduced testimony to shew, that the defendant, at the time of the exchange, had knowledge of the unsoundness of the horse, but did not communicate it to the plaintiff; and that the horse was then thin in flesh from disease and had a bunch on his neck, which was also the effect of…

This was an action of ejectment for two tracts of land in Windsor. Held: that the estate would vest in the second son of William Nich-oll, when born, as an estate tail, though given expressly for life ; because the second son of such second son of William could not take as a purchaser, being too remote ; and an estate tail in the second son of William would come nearest to the accomplishment of the intent.

This was an action of trespass for taking and carrying away several oxen, carts &c., alleged to be the property of the plain-. tiff: The cause was tried at Hartford, September term, 1831, before Daggett, J. The defendant. Wilcox, as a deputy sheriff, and the other defendant, as a creditor of Jared G. Talcott, a son of the plaintiff, took the property in question, by virtue of a legal process against him, on the 11th of November, 1826.

Tins was an action of trespass against John B. Watson and Samuel Phelps, for taking and carrying away from the plaintiff a certain grey horse, alleged to be of the value of 900 dollars. The cause was tried at Hartford, September term 1831, before Daggett, J. The plaintiff proved property in the horse, and that the defendants took him forcibly out of the plaintiff’s possession.

* This was a bill of foreclosure, stating the following case.

This was an action for a malicious prosecution ; the plaintiff suing by the name of De La P. Riley. The declaration consisted of four counts. The first and second may be laid out of the case.

This was an actiop on the case, for raising the water of the river Scantic, by means of a dam, so as to interrupt the plain- tiffs in the use of the water, at their forge above, on the same ° stream. The cause was tried at Hartford, February term, 1832, before Williamr, J. The plaintiffs’ forge and dam were erected in the year 1802; and they claimed, that they had a right to the use of the water in the same manner as they liad enjoyed it for fifteen years after that time.

This was an action for criminal conversation with the plaintiff’s wife; tried at Hartford, February term, 1832, before Williams, J. On the trial, the defendant offered testimony to prove, in mitigation of damages, that for a long time past, the plaintiff had been in habits of beastly intoxication, and sustained the character of a common drunkard.

This was a bill in chancery, stating the following case. On the 27th of December, 1784,* the town of Farmington appointed nineteen persons a committee for the different parts of the town in which they respectively resided, to view the highways therein, and to locate, by metes and bounds, such proportion of them as might be sold without producing public inconvenience.

This was a bill in chancery, brought by Therein Beach, one of the executors of the will of Birdsey Norton, deceased, against his executors and the devisees’and legatees under the will, to obtain, by a decree of the superior court,‘a settlement of that estate. The prominent features of the bill, which was voluminous^ are sufficiently exhibited in the following abstract.

This was an action of ejectment for two tracts of land in Marwinton; to which the general issue was pleaded and closed to the court. The cause was tried at Litchfield, February term, 183*2, before Daggett, J- The demanded premises were formerly owned, by John Watkins, under whom the plaintiff and the defendant claimed title. Both parties were the creditors of Watkins; who had attached the lands, and had them set off on their respective expeditions.

Tins was an action on the case against the defendant, for mal-practice in his profession as a physician and surgeon. The declaration consisted of three counts.

This was an action of trespass for the entry of the defendant on the plaintiff’s land and taking and carrying away several specified articles of personal property, including a quantity' of corn-stalks, some unthreshed wheat and a few sticks of timber. The cause was tried at Litchfield, August term, 1831, before Mosmer, Ch. J. Barnabas Toby, the plaintiff’s father, was formerly the owner of the real estate described in the declaration.

- This was an appeal from two decrees of the court of probate for the district of Litchfield, one passed on the 22nd of June, 1830, the other on the 2nd of November, 1830.

This was a petition for a divorce, brought by the wife against the' husband, on the ground of adultery committed by him, on the 10th of June, 1828. The petitioner averred, that she had lived with him in the due performance of all the duties of the marriage covenant, on her part to be performed, until his imprisonment in the Connecticut State Prison, in September, 1828.

This was an action of debt. The declaration embraced two counts. The first was on a recognizance entered into by W. O. Williams, Esq., the defendant in this action, in a suit pending in the county court, in favour of Thomas Barber against Levi Parsons, the present plaintiff.

This was an action on a promissory note, made by the defendant, for 200 dollars, dated September 29th, 1828. The cause was first tried, in September, 1830 ; and a new trial having been granted, (8 Conn. Rep. 469 — 472.) it was tried again, at Danbury, September term, 1831, before Peters, J. The first ground of defence was. that the note was obtained by fraud.

This was a petition, brought to the county court, February term, 1831, by John Waterbury and others, against the town of Darien, for a highway in that town. The petition, after setting forth the convenience and necessity of the proposed rorul, averred, that the select-men of Darien had ever neglected and refused to lay out said road, though often requested so to do, especially at Darien, on the 3rd of January, 183Í.

This was an information for an assault, with actual violence, on the body of Edmund Fanton, with an intention, without malice aforethought, him to kill, — contra formam statuti.

This was an action of assumpsit, brought by Couch, as surviving partner-of the firm of Stebbins Couch, against the defendant Waring, as indorser of a promissory note, for 3084 dollars, 5 cents, dated August, 4th, 1821, made by William Waterbury jun., payable to the defendant, or his order, four months after date, and by him indorsed to Stebbins The cause was tried at Fairfield, December term, 1831, before Bissell, J. On the trial, the defendant gave in evidence a judgment…

This was an action of debt on certain judgments of the superior court, brought by Isaac Spencer, Esq., describing himself as treasurer of the state of Connecticut, against Clark Bis-sell, Esq., executor of the last will of Isaac Bishop, deceased.

This was an action brought by the defendants in error against the plaintiff in error, on a promissory note in the following terms: “ Greenwich, May 1st, 1822. On demand, for value received, I promise to pay unto the heirs of Jonathan Jesup one hundred dollars, with interest till paid; as witness my hand.

This was an action on the case. The declaration embraced two counts.

This was a bill in chancery to foreclose the defendants of their right and title to certain real estate, mortgaged to the plaintiffs, by Philo Beers, on the 18th of July, 1831.

This was an action on the case for an infringement of the plaintiffs’ right to the use of water. The action was commenced on the 28th of June, 1830. The declaration contained two counts.

T/ns was an action on the case for a vexarious suit, commenced, by the present defendant against the present plaintiffs JLttaChment, without reasonable or probable cause.

This was an action on a promissory note, dated the 23rd bf September 1832, brought by John Cook, the payee, against Simeon Norton, the maker.

This was an action of assumpsit to recover the expense of relief and maintenance, furnished, by the plaintiffs, to Rhoda Bryan and her infant child, alleged to be paupers, having a legal settlement… Held: that the right of the husband in his wife’s chases in action, was extinguished, by the divorce. In Starr v. Pease & al. 8 Conn. Rep. 541. and Barber v. Root, 10 Mass. Rep. 2G0. it was held, that the right of the husband in the wife’s land, was terminated, by the divorce.

This was an action of assumpsit on a promissory note. Plea, non-assumpsit. The cause was tried at, Nao-Ilaven, January term 1832, before Daggett, 3. The defence was, that when the note was made, the defen-' dant was an infant under the age of twenty-one years. This fact was admitted by the plaintiff; but, he insisted, that after the defendant became of fuil age, he ratified the contract, by a new promise.

This was an action of assumpsit for the use and occupation of a store in New-Huven, with the appurtenances. The plaintiff claimed to recover for two quarter’s rent, from the 20th of June, 1830, to the 20th of December in the same year, at the rate of 200 dollars per annum, deducting therefrom for the use of the cellar of the store, 18 dollars, 75 cents.

This was an information against Joseph B. Stalker, charging him with having passed a counterfeit coin, purporting to be a half dollar, knowing it to be counterfeit. t)n the trial before the county court, it became material to prove, that the prisoner passed the pretended coin, knowing it to be counterfeit.

This was an action of book debt; to which the genera! issue was pleaded. On the trial before the county court, the account exhibited by the plaintiff, consisted of sundry articles of clothing cash to the amount of 42 dollars, 53 cents.

The original action was debt on a recognizance, brought by Joseph Darling, Esq. treasurer of the county of New-Haven, against Charlotte Hubbell, as principal, and Owen Reynolds, as surety. The recognizance was taken under the following circumstances.

was an action of assnmpsit, brought by George Nic7z.~ ols, surviving partner of the late firm of Bull & Nichols, against Richard Alsap. Held: that the defendant cannot set up a distinct claim, to an equal ora greater amount, as a defence to plaintiff’s claim. Me Lean v. Me Lean, 1 Coran. Rep. 397. Gunn v. Scovil, 1 Conn. Rep. 399. in nolis. This has made it necessary, in certain cases, to resort to equity ; and that court has interfered, and compelled a set-off.

This was an action on the case, brought by Samuel M. Hayden, Ezra S. Mather and others, against Clark Nott and Harvey C. Sañford. The declaration contained two counts.

This was an action of assumpsit, brought by the Middle-sex Turnpike Company against William A. Wentworth, before a justice of the peace, to recover certain tolls for travelling on the plaintiffs’ road between Middletown and Saybrook. The defendant pleaded the general issue.

This was a writ of partition, demanding that the defendants set out to the plaintiff, the one undivided half part of a certain dwelling-house, barn and other buildings, standing on a lot of land in Colchester, particularly described. The defendants pleaded, that they did not own and possess the premises, as tenants in common with the plaintiff.

This was an action on the case against Simeon Smith Esq. sheriff of the county of New-London, for the default of Lodo-wick Bill, a deputy of the defendant, in not returning a writ of attachment in favour of the plaintiff against one Joseph Crandall.

This was an appeal from two decrees of the court of probate for the district of Lebanon ; one rejecting a distribution of the estate of Samuel Bailey, deceased ; the other, accepting a subsequent distribution of the same estate.

This was an action of ejectment; to which the general issue was pleaded. The demanded premises were formerly the property of Samuel Davenport. The present plaintiff having obtained a judgment against him and, Seth Clark jr., took out execution, and had it levied on this property; but owing to some irregularities in the proceedings, no title was transferred.

This was an action of ejectment, brought by Calvin Marcy against Eleazer Kinney and hisjwo sons, Paul and Elijah Kinney. The cause was tried, on the general issue, at Tolland, Oc-⅛ tober term, 1831, before Hosmer, Ch. J. The plaintiff claimed title by the levy of an execution in his favour against Eleazer Kinney, one of the defendants ; and offered in evidence the judgment and execution, with the officer’s return thereon.

This was an action of assumpsit, on a written agreement recited in the declaration.

This was a scire-facias in a process of foreign attachment, in favour of The President, Directors and Company of the Hartford Bank against Bulhley .P. Barber, founded Upon a judgment against Walter E. Heyer and Jacob Burdett, late merchants in company under the firm of Heyer Burdettt in which they were described as absent and absconding debtors, and Barber was cited as their debtor.

This was a bill in chancery, tried at Hartford, September term 1833, before Hosmer, Ch. J. On the 8th of June, 1829, Philo Dickinson was indebted to Solomon Porter, the plaintiff, in the sum of 700 dollars. He was indebted, at the same time, to Charles Sigourney, and also to William W. Tudor and Henry S. Tudor, the defendants, in other sums ; and was then, and continues to be, insolvent.

' This wás an action of trover, tried at Hartford, February term, 1833, before Bissell, J. The defendant, as sheriff of the county of Hartford, took the goods in question, by virtue of four writs of attachment in favour of different creditors, against George Inness & Co., of the city of New-York.

t This was an action on the statute against selling pretench ed titles, (tit. 56. c. 1. s. 12. p. 303.) to recover the forfeit* ure given by that statute, for a violation thereof by the defendant.

This Was & seif e-facias, in a process of foreign attachment, to compel the payment of a sum of money, alleged to be au To this declaration, the defendants demurred ; and thereupon the case was reserved for the consideration and advice of this Court. 1. That an unadjusted claim, under a policy of insurance, is not a debt, within the statute of foreign attachment.

This was an action on the case, brought by Hollister agains? The Union Company, for a consequential injury to the plaintiff’s land. Held: that the user, to ripen into a title, must be tortious; but in this particular, he differed from the other Judges. The argument of counsel in that case, was, that an exclusive or entire appropriation of a common element, with an acquiescence on the part of others, for fifteen years, creates a right, upon principles of policy.

This was an action of trespass de bonis asportatis; tried at Hartford, February term, 1833, before Bissell, J. The defendants were select-men of the town of Canton* The property in question was taken under a warrant for the collection of town taxes, made out by the defendants, including a tax on land owned by the plaintiff, which, he claimed, was exempt from taxation, by the statute of 1719. Stat. 66. rea. 1702.

Tuts was an action of ejectment; tried at Litchfield, August term, 1832, before Bissell, J. The plaintiff claimed title to the demanded premises, by the levy thereon of two executions in his favour… Held: that the omission could not be supplied, by intendment or construction. There, the omission was the fault of neither party ; no doubt existed but that the deed was in fact acknowledged ; none as to the intention of the parties or of the magistrate.

Tins was an action of assumpsit, brought by Eli Somers, Erastus Minor and Harvey J. Lindsley, committee of the Presbyterian or First Ecclesiastical Society in Woodbury, to recover tire sum of 500 dollars and the interest thereon from the 1st of January 1829 ; the principal sum being the amount subscribed, by the defendant, for the support of the gospel ministry in that society.

This was an action brought on the penal part of a bond* given to the plaintiff, as judge of the court of probate, for the faithful performance of the duty of administrator on the estate of Herman Couch deceased, by John Morehouse, one of the defendants. The defendants having prayed oyer of the bond and condition, the latter being in the form prescribed by statute, and having set them forth, pleaded performance generally.

This was an action brought by Theron Beach against Birds-eu Baldwin, in which the plaintiff declared as executor of the last will of Birdsey Norton, deceased, upon a promissory note, dated the 25th of April 1816, payable to him as executor,, and in that capacity demanding damages.

This was an action of ejectment, tried at Litchfield, February, term, 1833, before Williams, J. On the 21st of March, 1831, the demanded premises were the undisputed property of Chauncey Seymour, jun. The plaintiff claimed, that he, being the creditor of Seymour, acquired title thereto, by the levy thereon of certain executions in his favour.

These were bills of interpleader. The bill of the Rich-mondville Manufacturing Company, stated, that one, hundred and ninety-eight shares of the stock of that company, now stand in the name of Cornelius Harsen, of the city and state of New-York, who now claims them as his property, by virtue of a transfer from Jeromus Johnson, to whom they were transferred, by Ichahod Frail and Abraham A. Frail, of the city of New-York, by virtue of a deed of assignment, executed on the 1st…

This was an action of book debt, against Charles Bostwick and Israel Gilbert, late merchants in company under the firm. of Charles Bostwick & Co., commenced on the 24th of August, 1831. The defendant Gilbert pleaded the statute of limitations. Replication, that the cause of action accrued within six years; on which issue was joined to the court. The cause was tried, on this issue, at New-Haven, adjourned term in October, 1832, before Daggett, 3.

⅛ This was an appeal from a decree of the court of probate for the district of New-Haven, passed on the 10th of October, . 1831, appointing Leman Chatfield and John White commissioners on the estate of Seba Moulthrop, deceased, and also from a decree of the same court, accepting the report of said commissioners, passed pn the 10th of April, 1832.

This was an action of assumpsit, commenced in June, 1832. There were three counts in the declaration ; the first being for money had and received, and the others special, i In the second count, the plaintiff averred, That on the 28th of February, 180?, the plaintiff, with several other persons, t associated, for the purpose of raising, by subscription, a fund ,■ to support the preaching of the gospel; that the plaintiff, together with several other persons, subscribed the…

This was an action of trover for goods; tried at New-Haven, January term, 1833, before Peters, J, Originally, the goods in question were the property of Benjamin Stiles, On the 8th of February, 1832, they were attached, by two of the defendants, as officers, on suits in favour of sundry creditors of Stiles against him.

This was an information against Nelson Weston 'and An-son Weston, for theft, charging them with having stolen various bills of the City Bank of New-Haven, amounting to the sum of 09 dollars, the property of Hiram Upson.

This was an action on the case. The declaration comprised two counts; the first being special, the second in tro-ver. The cause was tried at Haddam, August term, 1832, before Williams, J. The plaintiff' claimed to have proved the following facts.

This was an action of ejectment, which came on for trial, at Haddam, August term, 1832, before Williams, J., when the following case was agreed to, by the parties. The demanded premises were formerly owned, by the Smith Manufacturing Company ; and the plaintiff claimed title, by virtue of the levy of two executions in his favour against that company.

This was an action of assumpsit, brought by Tompkins against Henry L. Camp. The declaration comprised four counts, the three first being special, and the last general, for money had and received to the plaintiff’s use.

This was a bill in chancery. The bill stated the following case. On the 20th of December 1820, the defendant was appointed, by the court of probate, guardian to the plaintiff, then a minor ; and gave bond, with surety, according to law.

This was a complaint or information against Jonathan Kil-hourn, jun., presented, by a grand-juror of the town of Mid-dletown, to Abiel A, Loomis Esq., described as of said Middle-town, a justice of the peace within and for the county of Mid-dlesex. There were two counts.

This was an action of trespass quare clausum fregit; tried at Middletown, February term, 1833, before Daggett, J. The defendant, having pleaded the general issue, gave notice, that under this issue, he should give' in evidence a contract, entered into between him and the plaintiff, under the hands of the parties, but not under seal, on the 14th of November 1831, by which the defendant stipulated to perform the various duties (specified in detail) of a superintendent of the…