Connecticut. Supreme Court of Errors.

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6. The conrt also charged that an original neclisence in relation to it. ib.
dedication of land for a highway may be 12. Wnere the court below found the facts in
inferred as matter of law, and that where detail with regard to the dangerous condition
land has been thrown open to the public for of a city sidewalk by reason of ice and snow
a time beyond memory, and the puolic have upon it and upon such ^cts found that the
during all the time used it as a public high* highway was defective, it was held that inas-
way. the presumption of an oriipnal dedica- much as the evidence was relevant to show a
tion is almost irresistible ; and that if the defective condition of the sidewalk, this court
jury were satisfied that the land hod been could not review the conclusion of the conrt
clearly and intentionally dedicated by the below. ti.
owner as a public hiehway, the use of it as 13. Where it appeared that the plaintiff knew
a highway ^y the public for a period of six of the condition of the sidewalk, which was
or eight years would be a sufficient accept- steep and covered with snow and ice, and
ance. Held — that in the lan^a^ used there that ho might to some extent have avoided
was a lack of clear discrimination between thedan^rbylcaving the sidewalk and taking
the question of dedication as one of fact and the carnage path, and the court below found
the question as one of law, and that great care that unless the law imputed n^ligence to him
should be taken to avoid the use of language upon these facts his own negHgcnce did not
open to possible misconstruction in such contribute to the injury, it was neld that the
cases, but that, taking the whole charge to- court could not as a matter of law hold the
gether, the jury could not be supposed to pla[intiff chargeable with negligence. i6.
have been misled in the matter. ^ ib, 14. How far a city is liable for ice on a side-

7. The town had voted, at a town meeting in walk, and what is reasonable care in remov-
the year 1677, that the land over which the* ing it. LandoU v. City of Norwich. 615
wav in question ran should " lie common and g^e Deed of Land, .3, 4 ; Public Dutt, 4, 5.
not be uHed for anj other purpose without

the consent of every individual proprietor." HUSBAND AND WIFE.
Held— I. That if the land belonged to the

original proprietors and not to the town, the 1. The law is well settled in this state that a

vote was inoperative. 2. That if the land married woman may contract debts, and

b2longed to the town the vote could not estop where such is her intention may render her

tha town from afterwards claiming the land separate property liable in equity for their

and dedicating it to public use as a highway. payment. Wells v. Thorman, 31 8

3 That the use of the land as a common S. A husband who was bankrupt, with the

could not be regarded as excluding all infer- consent of his wife, who had separate prop-

encc of a dedication of the land to the public erty, carried on business in her name, and

for a highway arising from the public use of represented himself as trustee for her. As

the same as a highway. ib, such trustee he took a lease of a store and

8. The question whether a road is defective or contracted with the plaintiffs to make certam
not depends on a great variety of circnm- alterations in it The work was done with
stances which cannot be embraced in a legal the knowledge and consent of the wife and
proposition, and the question must therefore for the benefit of the leased property, and
generally be one of fact and not of law. part payment was made in checks signed in
Congdon v. Citu of Norwich, 414 ner name. Held, in a suit in equity to charge

9. Queations of'^law may however arise as to the separate property of the wife with pay-
alleged defects, as whether a sidewalk is a ment, that the wife must be regarded as nav-
part of the road which a city is bound to ing intended so to charge her separate estate,
Keep in repair, or whether a duty devolves and had so charged it. ib,
upon towns in respect to snow and ice upon 3. And held that the decree should be that
roads. ^ ib, payment be made from the personal property

10. The condition in which a town is bound to of the wife, and not from her real estate, ib,
keep a road must depend in a measure upon 4. The defendant, a married woman living
the sea^n of the year, the extent of the pub- with her husband upon a farm of which the
lie use, the means at command for making husband took the general management, hav-
the repairs, and other varying circumstances. ing separate property of her own, ordered

ib, provisions for the use of the family to be

11. Accumulationi of snow and ice may pro- charged to her solely on her separate account,
dnce such a condition of a road as to cause the husband having nothing to do with the
it to be dangerous and defective, and in each matter beyond assenting thereto. The plain-
particular case of alleged defect from such tiffii upon her order so given furnished provis-
cause the question will depend upon an in- ions from time to time to the family wholly
quiry of fact, whether under all the drcum- upon her credit and charging the same sole'y

80



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634 INDEX

to her. Held that the proTisions were to he as matter of law, that the conrejance was

regarded as parcbased by the wife upon her made to prefer the plaintiff as a creditor. S.

own responsibility and upon the credit of her That as it was found that the conTejance was

separate estate, and that the plaintifib had no not made in view of insolvency it could not

claim against her husband therefor. Craft, r. be invalidated by the statute. Hall y. Gay-

Rolland. 491 hr. bbO

6. The defendant was afterwards abandoned

by her husl>and, and while so abandoned she INSOLVENT ESTATE.

promised the plaintiffs to pay the amount due gee Estate in Settlbmbmt, 1, 2,3; Pbobatb

them b^ their account. Held that her original Coubt, 1, 2, 4.

obligation to pay the claim, which could have

been enforced in equity agfainst her separate INSURANCE.

estate, was a sufficient consideration for this g^ Eopitt IS 14

pi:omise. • t6. m > » •

6. Under the statute (Gen. Statntes tit. 13, INTOXICATING UQUORS.
sec. 25,) a married woman abandoned by her xv^i\.x»Axxivr *^vt^«o.
husband is as to legal rights and responsi- ^' ^ complaint charged the defendant in one
bUities a feme sole. Jleld that the defendant, co^mt with keepinij for sale intoxicating Kq.
having been abandoned by her husband when nors adulterated with poisonous ingredients,
she made the promise, was bound by it in law *nd in another with keeping for sale a spirit-
as if she were a feme sole, and that im action ^9^* liquor compounded in imitation of Port
could be maintained against her as a feme wine and adulterated with poisonous ingre-
gole. ib, dients, in violation of the 46th section of the

statute concerning spirituous liquors (Gen.

INFANT. Stat., tit. 68.) Held — I. That the testimony

See Minor of a witness that he had asked the defendaot

' to give up the sale of liquor and that he had

TVTTT\rr"T*Trki^ refused to do so, was admissible as going to

^^ UiNl. ilUiN. g^^^ ^^^^ ^jj^ J. ^ j^^ . ^y ^j^ defendant

See Town, 1. were kept for safe. 2. That evidence that

TXTcnr TT-r-xTF A nT ™®'* ^ ^^ ^^^ frequently been seen^oing

INSOLVENT ACT. into the ddfendant's store and coming out

The insolvent act (Gen. Stat., tit. 20, sec. 87,) intoxicated, also that there were decanters

provides that all conveyances made by any upon the shelves of the store, also that per-

per)»on in failing ei re urn stances, with a view sons had been seen standing at the counter

to insolvcncv, shall as against creditors he as if drinking, was in each case admissible

deemed fraudulent and void, unless made for as tending to prove that liquors were kept

the benefit of all the creditors. A manufac- and sold there. iState v. St€mt<m. 421

turing corporation was in fact insolvent, and 2. The defendant requested the court to charge

in this condition sold a quantity of cloths the juiy that unless they found that he kept

manufactured and in proi-ess of manufacture a pure intoxicating liquor which had been

to the plaintiff. At the time neither the adulterated with poisonous inj^redients he

plaintiff, nor the preaident of the corporation, must be acquitted. Held not entitled to con-

who acted as its agent in the sale, supposed sideration, because it asked for the entire ac*

it to be insolvent. They knew it to oe em- quittal of the defendant upon a failure to sus-

barrassed and that an extension of credit tain the first count merely. 3>.

must be obtained to prevent a failure ; but 3. The section referred to was intended to

they believed that the necessary accommoda- reach spirituous liquors containing delete-

tion could be obtained and the corporation rious and poisonous ingredieflts and prevent

' enabled to go on. The principal object of the sale or them, whether 'those ingredients

the plaintiff was to furnish the corporation were added to pure liquor, or were used in

with means to pay a note then maturing on compounding an imitation, or were added to

which he was endorser, and to assist the prcs- the imitation. ^ if*.

ident, who was his brother, in his financial 4. It is not necessary to a conviction that it

management of the corporation. The court should be proved that the defendant knew

below found that the conveyance was not that the liquors were adulterated. Where

made in view of insolvency, nor with intent a person is knowingly engaged in a criminal

to prefer the plaintiff as a creditor. It also act and commits a greater oflense than die

found that it was made in good faith and in one intended, proof of an intent to commit

the regular course df business, unless the mo- the greater offense is not essential to a convic-

tives above stated had the effect in law to do- tion for that effuse; and this rule applies

stroy the good faith of the transaction and not merely to crimes which are mala fa se, but

make it a conveyance with an intent to prefer to those which are only mala prohibita, ift.

creditors within the meaning of the statute. 5. The proceeding under the 22d section of the

Held— 1. That it was not to be inferred, statute relating to spirituous liquor (Gen.



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685



Stat., tit. 63,) for the seizure and condemna-
tion of liquors kept for sale in violation of
the act, is a proceeding in rem, and charges
no personal offence against the owner or
keeper. StaU v. Barrowg's Luiuors, 425

6. If the person named in the complaint as
the owner or keeper of the ^ liquors, or any
other person claiming an interest, appear
before the justice to show cause why the liq-
uors shduld not be forfeited, the persons so
appearing bi«orae severally parties defendant,
(unless claiming a joint mterest,) and are
treated as such m all the subsequent proceed-
ings, and each party defendant has a separate
right of appeal. **•

7. Where in such a proceeding several parties
appear and are entered as defendants before
the justice, and one of the defendants appeals
to the Superior Court from the judgment of
forfeiture by the justice and another defendant
doea not appeal, the defendant not appealing
haa no right to appear and make defense in
the Superior Court. t&.

JAIL.
See Escape, 1,2.

JUDGMENT.
See Attachment, 4.

JURISDICTION.
SecNuiSAKCB, 1.

LABOR.
See Day's Wobk.

LANDLORD AND TENANT.
See Lease.

LEASE.

1 , Whether a letting of land on shares amounts
to a lease depenctj much on the particular
terms of the agreement. Herskell v. Bushnell.

36

2. A let his farm to B on shares, the stock
being o>vned in common, each furnishing half
the seed, and receiving half the crops, and
both linng in the house on the form. Held
that the occupation of B as tenant did not ex-
clude the occupation of A, and that A could
seize and take into his custody cattle tres-

fassing upon the farm, under the statute
Gen. Stat., tit. 7, sec. 193,) which provides
that any person may seize and take mto his
custody any animal trespassing upon prem-
ises owned or occupied by him if such animal
enters from Uie hignway. t&.

8. And held that he was not bound to act
jointly with B in seizing the cattle. ib.

4. There can be no implied contract to nay
rent for use and occupation where there is a
written lease. North v. Nichols, V 875

5. Assumpsit will not lie to recover rent dno



by a contract of lease executed by the lessee
under seaL if>-

6. By an indenture of lease made a few days
before May 1st, the plaintiff let and the de^
fendant hired a dwelling house at a stipulated-
rent for one year from that date. The plain-
tiff's wife being in child-bed and not in a a)n-
dition to be moved, it was agreed at the time
the lease was made that the plaintiff ^ould
romain with her in the house for a few days
after Mav 1st, the plaintiff stating the time
as probably a week or ten days ; the house
to DC occupied by both families during that
time under certain arrangements for their
mutual accommodation. On May 1st the
defendant moved in, taking possession of cer-
tain rooms agreed on, but the plaintiff's wife
not recovering so soon as expected the defend-
ant on the 12th of Mav asked the plaintiff
when he would leave the premises, to which
the plaintiff replied that he should not go out .
until his wife got well enough.to go if he losi
a year's rent, and would fix no time for leav-
ing. The defendant thereupon told the
plaintiff that he should quit- the premises,
and did quit them the same day, and after-
wards on the same day the plaintiff removed
his family and effects. In a suit brought by
the plaintiff for the rent it was held— 1.
That the defendant was entitled under the
lease to the full possession of the entire prem-
ises leased. 2. That so far as he consente<l
tQ a continued occupation of a part of the
premises by the plaintiff, he could not make
such occupation a ground of defense. 3.
That when the license had expired by its
limitation or by revocation the defendant be-
came entitled to full possession on reasonable
demand. 4. That when the plaintiff, upon
the defendant's asking him when he would
leave, made the reply which he did and re-
fused to fix a time for leaving, the defendant
had a right to regard it as a refusal to deliver

/ to him the premises, and was justified in
abandoning tne lease and quitting the prem-
ises. Reed y. Reifnolds. [J 469

LEGAL TENDER ACT.

1. The petitioner was the owner of certain
seven year bonds, with coupons attached,
dated m 1860, executed by the respondents,
and secured with other like bonds by a mor^
gage to .the treasurer of tlie ^ state and an
assignment to trustees of certain stocks. The
bonds after due were presented for payment,
and payment tendered by the respondents in
legal tender notes, which were refused. Held
— I. That th^ petitioner was entitled to
payment of the bonds and coupons in coin,
the court so holding upon the authority of the
decision of the Supreme Court of the United
States as to the unconstitutionality of the
Legal Tender Act, and without any consid-



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686



INDEX.



enttion of the merits of the qneition. 2.
That the petitioner was entitled to hare such
proportion of the stock held in trust as the
amount of his honds bore to the whole amount
secured, sold, and the net arails converted
into coin and paid over to him, to be applied
upon the conpKans and bonds. 9. That for
any balance remaining unsatisfied a decree
should be passed foredoeiufi: the mortgage
unless such balance should be paid in coin.
4. That interest should be allowed on the
bonds after due, but not on the coupons. 5.
That the costs taxed by the court snould be
made payable in currency. Johnaon v. Nor-
wich ^ ^orceMer R. H Co, 433
9. And held that there was no principle upon
which the payment of the bondu and coupons
could be decreed to be made in currency to
an amount equal to the currency Talue of
the gold on the day when the bonds fell due,
but that payment must be decreed in coin
itself. ib,

LETTING ON SHARES.
See Lbabb, 1.

MALICE.

See CONTBACT lilLATIOir.

MANDAMUS.

1. Mandamus from the Superior Court lies
to compel an inferior tribunal to perform an
official duty to which a party is clearly enti-
tled, and which is refiisea to him, wbere no
other remedy is appropriate and effectual, and
also to compel a judicial or ministerial officer
to perform an act which it is the imperative
duty of such officer to perform, and with re-
gard to the manner of the performance of
which he has no reasonable discretion. Sejf-
mour V. Ely. 103

2. Where a party has a right to the exercise
by such an officer of his discretion, and such
exercise is refused, such officer may be com-
pelled by mandamus to discharge his duty,
out he cannot be controlled in the exercise of
liisjndgment. ib.

3. iST entered into a contract with the selectmen
of the town of ^ to ** maintain and keep
in a good, sufficient and improved state of
repair** certain highways dejjcribed, the con-
tract containing the following provision:
" And for the purpose of determining whether
said roads are kept in repair as aforesaid, it
is agreed that they shall at all times be sub-
ject to the inspection of the superintendent of
highways ; and if he shall at any time decide
that either of the roads is not in a proper
state of repair, it shall be the duty of the con-
tractor, u}}on notification by him thereof, to
put such road in rcnair; and if he shall
neglect to do so for four days after such no-
tice, then the superintendent shall cause the
same to be repaired at the expense of the
contractor ; and the selectmen shall, upon the



eertificftle of the su per in tendent to the eflM
that the roads have oeen kept in an improved
state of repair, draw an ordf»- for the payment
of the above sum." Held that the superin-
tendent of highways could not be compelled
by mandamus to issue a certificate that the
roads had been kept in repair according to
the contract, the question whether they had
been so kept in repair being one of jndgpmcnt,
and resting vrhoUy with the superintendent.

ib.

4. And the judgment of the Superior Court
issuing a peremptory mandamus against the
superintendent was reversed as erroneous,
although the court found as a fisct that the
roads had been kept in a proper state of
repair under the contract. ib.

See Bailboad, 2.

MANURK
See Abahdonbd Pbopebtt, 1.

MINOR.

1 . A minor was tried, convicted and sentenced
upon a criminal complaint without the ap-
pointment of a guardian ad litem. Held that
the proceedings were not void but only erro-
neous. tSt€tU V. James. 855

2. It appoired however that the prisoner, be-
fore being put to plead, wzs asked by the
iudge in me presence of his counsel whether
he was of age, to which he replied that he
was supposed to be, and that in consequence
of this answer a guardian vras not appointed.
Held that upon these fiMts the proceedings

iil^were not even erroneous. ut.

MITTIMUS.
Where a mittimus required the jailer to receive
the prisoner and keep him until he diouM
pay a certain sum as costs or be otherwise
dischaiged by order of law, it was held that
the mittimus was irregular so far as it related
to the payment of costs, but Aat that clause
could be rejected as surplusage. Stale r.
James, 355

MORTGAGE.
1. A savings bank held a first mortgage on
certain real estate in Connecticut for $12,000 ;
the petitioners, a bank located in the s^ite of
Massachusetts, a second mortgage for $25,-
000 ; the value of the property was $75,000.
The savings bank brought a hill for a fore-
closure against the present petitioners and
the mortgagor, the only service made upon
the present petitioners being bv notice sent by
mail by order or the court, lliis notice wai
never received, and they had no actual notice
of the suit until after a decree had betsi
passed and the time limited fbr redemption
had expired. Held that upon these ftK^ts
alone tney were cleariy entitled to a decree



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INDEX.



657



opening^ the foreclosure and limiting a further
time for redemption. Bank of Nam America
T. Norwich Savings Society. 444

2 It further appeared that one F, one of the
managers of a manufacturing company which
was the mortgagor, and who was individually
a guarantor of the mortgage debt due the
savings bank, had shortly before the expira-
tion of the time for redemption entered into
a written agreement with the savings bank,
that if the present netitioners did not redeem,
the premises should be conveyed to him on
his payment of the debt due the savings bank,
and on the expiration of the time limited
without redemption he had paid the savings
b-ink $>00 toward the debt, which was to be
forfeited if he did not pay the entire debt
within a time agreed. Held that, supposing
Kto have acted in ppood faith, he took only
the rights of the sannp^ bank, and that he
could suffer no injury masmuch as he could
recover back the $500 as money paid under
a mistake and upon a consideration that had
failed. ib.

3. It further appeared that Fhad assigned to
S his contract with the savings bank and that
6' had loaned him $15,000 thereon; that a
certificate of the foreclosure had been filed
with the town clerk by the savings bank and
had baen recorded according to law, and that
the town clerk had made a certificate that
the record title was complete in the savings
bank, which was delivered by F to /S, and
that upon the fiuth of this certificate S had.
taken the assignment of Fs contract and paid
him the mone^ . It did not appear that Fwas
insolvent. Held that S bad acquired only
the rights of V and of the savings bank, and
had no equity that could prevail over that of
the petitioners. ib.

See Equity, 16 ; Friudulent Comvbtancb,
4, 5; LsojLL Tbndeb Act, 1, 2.

MOTHER.
See Fabent and Child.



MOTION IN EBROR.
Rule of Court de
See Nbw Tbial, 4.



619



NEGLIGENCE.
See High WAT, 1, 2, 14. WABEnousEMAir, 1,
2.

NEW TRIAL.
1 Under sec 2, chap. 16, of Rules of Practice,
(18 Conn.. 574,) which requires that in all
motions for a new trial the precise points
made by counsel must clearly appear and that
questions not raised distinctly below will not
be heard, it is not necessary that the precise
object for which an inquiry is made should
be stated where it sufficiently appears from ihe



question itself what the object was. Qfunn y.
koatk. 16

2. The plaintiff in his motion for a new trial
complained that the court below charged the
jury that the statute provided that any dog
should be presumed to be owned by the per-
son on whose premises it was kept. The
motion stated that this chaige was given
"among other things,'' but did not sho^ what
those other things were, nor what application
the court made of the statute, nor m what
connection it was alluded to, nor for what
purpose. Held that the objection was not
presented in such a way that the court was
Dound to consider it Bums v. Fredericks. 87 '

3. Where the language of the court in chain-
ing the jur^ upon a certain point is not suffi-
ciently specific, no new trial will be granted
if the language used, when consider^ with
refer I'uce to the facts of the case and in con-
nection with a subsequent part of the charge,
can not reasonably be supposed to have mis-
led the jury. Mitnaony.Toum of Derby, 298

4. The bringing of cases before the Supreme
Court by a motion in error and motion for a
new trial combined, is irregular, and the mo-
i' m will not be treated as a motion for a new
trial. Gregory v. Brooks, 365

5. Rule of Court de motion for new trial. 619
See Petition fob Nbw Tbial, 1, 2, 3, 4, 5.

NOTE.
See Pbomissobt Note.

NOTICE.
See Sheep CStatutb deJ.

NUISANCE.
Whether, where noxious odors, generated by the
defendant in a manufactory carried on by him
outside of the jurisdiction of the court, are
transmitted through the air to the residence
of the plaintiff situated within such jurisdic-
tion, and there inflict injury, the court has
jurisdiction to arrest the evil, theparties being
properly before it : Quetre. Keyset v. Coe,

597
OCCUPANCY, CTITLE BY.;
See Abandoned Pbopebtt, 1.

OFFICER.

1. An officer sued in trespass for property at
tached which had been carried away by a
third person. Held that he could recover
only on the ground of his liability for it to
either the pmiutiff or the defendant in the
attachment suit, and that as the plaintiff had
lost his lien the officer could not be liable to



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