Connecticut. Supreme Court of Errors.

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. Af owning an equity of redemption of only nominal value in a tract
of land subject to several mortgages, agreed with B to sell him a part
of the tract for a price agreed, the proceeds to be applied in part pay-
ment of the mortgages. The mortgagees consented to release the por-
tion for the payment proposed, which B was to mortgage to a savings
bank to raise the money to make the payment. The mcntgagees there-
upon executed a release to ^ of the portion in question, and A made a
warranty deed to B, the papers all being deposited with the savings
bank until the transaction was completed. One of the mortgagees
however was an administrator and another a guardian, and the treas-
urer of the savings bank was of opinion that they could not, under the
statute, release a part of the mortgaged property, and declined to make
a loan on the part tmless the whole tract was released. B therefore
advised A to get this done, but A was not able to accomplish it and so
informed B, B soon after procured elsewhere the money needed to
purchase the part and informed A that he had it ready whenever he
should make him a perfect title. Thus matters stood until B put upon
record a caveat, claiming an equitable title to the portion in question
and describing the release of a part, as at first proposed, as insiufflcient.
Afterwards C purchased the equity in the whole tract at a sale of it by
A^a assignee in bankruptcy. Upon a suit in equity brought by C
against B to remove the cloud from the title, it was held that the title
expected by B under the agreement and demanded by the caveat Delng
one which required a release of the whole tract by the mortgagees,
which they were not bound to give and which they had not authorized
A to stipulate for, B had not acquired an equitable title to the portion
of the land in question. Treadwell v. Brooks, 262.

An equitable remedy that existed against a party in his life-time, exists
equally against his legal representatives after his death. Meed v. Cope-
land, 472.

1. A party is not estopped by an admission made in ignorance of his
rights, induced by an innocent mistake of material fact& Tovon qf
Clinton V. Town of Haddam, 84.

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680 ]!Nt>EX.

% The Beiectanen of the town of H recoived notice fhnn Hie aelecttnen of
Ihe town at C thai a pauper belonging to the former toWn was on
expense in the latter town. The selectmen of H, betteTlng that the
pauper In fact belonged to their town, wrote the selectmen of C,
requesting them to be as economical as possible in the matter and
promising to pay for the supplies. The supplies were howcYer paid for
by a relative. Four years later, the pauper again needing aid from the
town, the selectmen of H were duly notified of the fact and the supplies
were furnished by the town of C. While they were being furnished
the selectmen of H still believed that the pauper belonged to H, and
conceded this to the selectmen of C, who by reason of it took no steps
to investigate the matter or to hold any other town responsible. The
means of knowledge were however equally open to both parties. In a
suit brought by the town of C against the town of H for the supplies
last furnished, it was held that the defendants were not estopped from
showing that the pauper was not settled In H, lb.

See also Bvidbhce, 8; Title bt Estoppel,* 1.

1. B executed to the plaintiffs his note on demand, on the back of which
the defendants signed the following guaranty: — *' For value received,
we jointly and severally guarantee the within note good and coUectiUe
until paid." In a suit brought on the guaranty several years later, and
without having brought suit against the maker, whom the pfauntiils
claimed to have been insolvent, the plaintiffs offered evidence that it
was understood between the maker, the guarantors and Oiemselves at
the time the note was made, that the maker had signed it without con-
sideration, at the request and for the accommodation of the guaranton,
and upon their promise that they would take care of it and pay it within
a short time. Held that this evidence was inadmissible as going to
establish at the very making of the note an oral agreement in direct
conflict with the written guaranty. Allen v. Bundle j 9.

8. And held that it was not admissible for the purpose of establishing a
waiver by the guarantors of the institution of proceedings against the
maker for the collection of the note, as it would produce the same effect
with a material change of the written contract, lb.

8. Nor admissible to estop the guarantors. Promissory representations
as to future action dependent upon a contract to be entered tntb, do
not create an estoppel. lb,

4 It is admissible to prove the time when a certain occurrence, foreign to
the case, took place, for the purpose of fixing by It the time when a
certain act, within the case, was done. Quintard v. Corcoran, 34.

5. An engineer who has had exx>erience In making plans and estimates
for the building of bridges and has superintended their construction,
can properly testify as an expert with regard to the probable cost of a
bridge, although he has had no experience as a practical bridge builder.
Bryan v. Town qf Bradford, 246.

0. And it does not affect the case that he has obtained the prices of the
materiah for the bridge from persons who deal in such articles, id.

7. Upon the question whether certain iron bought of 3f. <fc Co,, who were
iron brokers, was sold as their own or for some dther party, the Cottft
charged the jury that if they should find that M, A Co. were brokers
and as brokers selling sudi iron at the time and that the purchaser

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knew this, it would of itself be evidence of notice to the pnrohAser tlAt
they were not the owners but were selling for some one else. HeM to
be erroneous. Elwell v. Mersicky 272.

8. The question whether the loss of a document has been satisfaotorlly
^ proved, so that secondary evidence of its contents can be admitted, is

wholly one of discretion with the judge trying the case, and caa not be
reviewed on error. lb.

9. It is enough if the preliminary proof establishes a reasonable presump-
tion of the loss of the document. lb.

10. Where the original paper is in the hands of a third person, out of the
jurisdiction of the court, secondary evidence of its contents Is
sible. lb.

11. This rule applied to a letter-press copy of a telegraphic dispatch, i
. panied by proof that the dispatch was sent. lb.

yz. Also to invoices of goods, when the originals were on file In die cus-
tom house in another state. lb.
See also Intoxicatiito Liquobs, 18, 19, 20; Tbadx Mask, 7.

1. An administrator, carrying on a farm that belonged to the estate cH
the intestate, purchased on credit a yoke of oxen to be used on the
farm. Held that the administratcur personally was liable to the seller
for the price, and that the estate was not liable. HaUoek r. SmUk, 127.

2. And held that the estate was not rendered liable in equity by reason of
the fact that the oxen had been sold by the administrator and the pro-
ceeds used in paying for labor hired in carrying on the farm. lb.

3. The carrying on of a farm belonging to the estate is no part of an ad-
ministrator's proper duties; but the administrator would alone have
been liable, even if the debt had been incurred in the ordinary adminis-
tration of the estate. lb.

See also Mobtoagb, 3.

1. A tax warrant directed the keeper of the jail, in case any person was
committed upon it, to keep such person safely untU he should pay the
tax and the fees of the officer for service. The plaintiff datooed tiiat
the defendant's fees were excessive and illegal, and that if Uiey were
so he was liable to the plaintiff for false imprisonment. The judge
charged that, if the fees were excessive, the defendant yet was not lia-
ble as a trespasser unless the jury should find that he made them so in
bad faith and for the purpose of keeping the plaintiff in jail, field to
be erroneous. Wilcox v. GUidvoin, 78.

2. The defendant had no right to hold the plaintiff in jail until he paid
fees which were illegal. lb.


See Mabteb and Sebvant, 3, 6.
Where an officer, receiving for service an execHtion in a foreign attach-
ment suit, neglects to make personal demand on the garnishee within
sixty days after the rendition of the judgment, the cause of action
against him for the default accrues at the expiration of the sixty days,
and not upon the rendering of judgment against the plaintiff in a
scire /acios afterwards brought against the garnishee. Smith ▼. WaU^
See also Tbade Mabk, 1.

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,1. Under our statute with regard to fraudulent conveyances (Gen. Stat-
utes, p. 345 J it is not necessary to prove a specific design to defraud the
particular creditor who assails the conveyance; the intent to defraud
one creditor renders the conveyance void as to all. Allen v. Bundle, 10^
SL The language of the statute differs somewhat from that of 13 Eliz.,
c 5, but it is essentially copied from it and must receive a similar con-
Btruction. lb,
See Statute of Fbauds.

See Notes and Bills, 1, 2, 3, 4, 10, 18, 19.

1. A highway laid out by the original proprietors of a town ceased to be
used by the public in 1812, but had never been legaUy discontinued.
At that time the selectmen of the town imdertook to convey to fi by
deed the interest of the town in it. 8 fenced the land, and he and his
grantees held exclusive and adverse possession for over sixty years.
Held— 1. That the fact that the land was legally highway (if it was
still so to be regarded,) did not prevent the adverse possession running
against tbe private right of an adjoining owner. 2. Tliat the deed of •
the selectmen was admissible, although passing no title, as giving char-

, acter to the possession under it. Cody v. Fitzsimmona,, 209.

2. Whether the facts were sufficient to warrant the inference of an aban-
donment of the highway as such by the public: Queer e. The court
inclined to so regard them. id.

3. Under the statute authorizing the laying out of highways, a highway
with a draw-bridge can be laid out over a navigable river. Bryan v.
Tow7i qf Branford, 246.

4. The statute (Gen. Statutes, p. 239, sec; 47,) which allows a committee
to receive and regard as evidence on the question of the cost of a new

s . highway, a bond for the construction of the highway for a stated price,
applies to a highway so laid out. lb.

5. The act of 1875 (Session Laws of 1875, p. 57,) which provides that
such a bond shall stipulate that the work shall be done to the accept-
ance of the county commissioners, does not repeal, but is to be taken
in connection with, the former act (Gren. Statutes, p. 2S9, sec 47,)
which provides that such a bond shall be conditioned for the doing of
the work ^Mn a specified time and manner." lb.

6. It is no objection to the laying out of a highway on the ground of
public convenience and necessity, that a considerable part of the public
travel will be for the purpose of recreation and pleasure. The accom-
modation of that class of travellers is to be considered with that of the
rest of the public lb.

7. Travel which is limited to the summer months is entitled to less weight
in determining whether there is a public necessity, than that whieh is
constant. lb.

,. 8. The owner of a mill-dam built a wall of stone twenty-three feet above
the dam and filled the intervening space with earth, leaving a culvert
for the water to pass through, not intending at that time to make any
further use of the dam for mill purposes. He then dedicated the em-
bankment for a highway across the river, and it was accepted by the

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INDEX. 638

public, and used for several years until it was carried away by a flood.
Held that the town in repairing was not bound to restore the embank-
ment, but might construct a bridge for crossing at that place. Welton
V. Toion of Wolcott, 259.
9. A town has no power to agree, for a valuable consideration, to discon-
tinue a highway. The mode of discontinuing highways is fixed by
statute, with a provision for an appeal by any party aggrieved, and a
town can not, at its mere pleasure, discontinue them. Tovon of Crom-
well V. ConnectictU Brown Stone Quarry Co., 470.

10. And a town can not enforce a promise of the other party of which its
own promise to destroy a public right was the consideration. lb.

11. The statute (Gen. Statutes, p. 282, sec. 10,) provides that any person,
injured in person or property by means of a defective road or bridge,
may recover damages from the party bound to keep it in repair; but
that no action shall be niaintalned '' unless written notice of such
injury, and of the time and place of its occurrence, shall within sixty
days thereafter be given." A notice was given to the selectmen of tlie
defendant town as follows: "You are hereby notified that V. T. of
the town of B. was injured in his person and property by reason of a
defective highway and -want of railing on its sides, located in said town
of W., and that this injury occurred on the 11th of September, 1879,
on this highway, leading from the East Street Park, so called, in W.,
past the old G, H. place to N,, and near the house of P. Jf. in said IT."
Held to be sufficient both as to the place where the injury was received,
and as to the character of the injury. Tuttle v. Town qf Winchester ,

12. The negligence of a town or city, to make it liable for an injury from
a dangerous condition of a highway, must be such as would have made
it liable to an indictment. Beardsley v. City qf Uartfordy 530.

18. In some of the states a distinction is made as to the rule of liability,
between municipal corporations, or corporations proper, and quasi cor-
porations, such as towns or counties, imposing a greater liability on
the former. But this distinction is not made by the courts of the New
England states, and it is holden by them that a municipal corpora-
tion is liable only by force of the statute. lb.

14. The absence of a railing, where the public travel is endangered by
the want of it, constitutes a defect in the highway, as rendering it
unsafe for public travel, independently of any statutory provision as to
a railing. lb.

15. Where a highway prayed for would If laid out make it necessary that
an existing highway with which it would connect should be put into
better condition in consequence of the new travel that would be brought
upon it, which expenditure would otherwise be unnecessary, the com-
mittee are to consider this expense in determining whether to lay out
the highway prayed for. Howe v. Town qf Ridg^eldf 592.

16. The question as, to the condition in which a highway ought to be
kept, depends in a great degree upon the amount of travel upon It. P),

See also City, 2, 3, 4.

See Railroad Company, 8.

See Stock Dividund, 1.

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See Constitutional Pbohibition of, Ao.

See MuBDEB, 1.

1. A father has the right to dispose of the seryices of his minor son dur-
ing his minority; but this right is not absolute. His own right to his
services being limited and qualified he can convey only a limited and
qualified right. Barnes v. BameSf 572.

2. One qualification of this right is, that it dies with the death of the
father. The son being emancipated by the death of the father, his
obligation to perform the contract made for him by the father Is at an
end; certainly after he has arrived at years of discretion. lb,

3. A father made an agreement with B that his son, then four months
old, should live with and serve him till he was twenty-one years old,
and that B during that time should provide him with food, clothing
and schooling as if he were his own child. The boy's mother was then
dead and his father died four years later. When the boy was nineteen
years of age he made an agreement with B that the latter should relin-
quish his Hghts under the contract with the father, and should be
released from the duty of further supporting him, and that he would
thereafter pay B three dollars a week for his board while he remained
with him. Held — 1. That this agreement was a repudiation by the
minor of the contract made between the father and B. — 2. That the
board furnished the minor by B being a necessary, he could recover
reasonable compensation for it. lb,


1. A person licensed by the county commissioners to sell intoxicating
liquors in a certain town, gave a bond to the treasurer of the town with
sureties, as required by law, in the sum of $1,000, the condition of
which was that if he *' should duly observe all laws relating to Intoxi-
cating liquors" it should be void. Held — 1. That the keeping open a
place on Sunday where intoxicating liquors were exposed for sale was a
breach of the bond, although the act was forbidden by a statute with
regard to Sunday and not by that relating to intoxicating liquors.
2. That it was not necessary that the bond should provide in terms
that its amount was to be forfeited upon a breach, that being necessarily
implied. 3. That it was not necessary that the act constituting a
breach of the bond should be merely an abuse of a privilege granted by
the license. 4. That it was not necessary that the plaintiff ^ouM have
sustained any damage by reason of the breach of the bond. 5. That
the $1,000 was the measure of damages. Quiwtard v. Coreorany 84.

2. A count in an information for selling intoxicating liquors coBtrary to
law, that cliarges the defendant with "selling and exchanging*' such
liquors, is not bad for duplicity. State v. Teahan, 92.

8. A count charging the keeping of '^ intoxicating liquors" with intent to

sell contrary to law, is not bad for uncertainty in not stating the kind

and quantity of the liquors more definitely. lb,
4. The jury having found the defendant guilty on both coimts, the court

imposed a separate fine on each count. Held to be no error. lb,
6. The purchaser of liquor knowing it to be sold contrary to law is not to

be regarded as aiding and abetting the crime and is not therefore dim-

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INDEX. 635

Inating himself in testifying to snch saie, and his testimony is not to be
regarded as that of an accomplice. lb,

6. The statute (Gen. Statutes, p. 645, sec 3,) which provides that "every
person who shall assist, abet, counsel, cause, hire or command another
to c<immit any offence, may be prosecuted and punished as if he were
the princiiAl oflPender," does not apply to the case of the purchaser of
liquor sold contrary to law. lb,

7. A written return made by the defendant to the United States internal
revenue collector, declaring an intention to carry on the business of a
retail liquor dealer for the ensuing year, with the payment of a tax
thereon, is admissible on a trial for selling liquor ccmtrary to law within
that time, for the purpose of showing an intention to sell, both under
a count for an actual sale and under one for keeping liquors with intent
to sell. lb,

8. Proof of a sale of intoxicating liquors will support a conviction for
keeping the same liquors with intent to sell, where it satisfies the jury
of such keeping and intent. lb,

9; Licenses granted for the sale of intoxicating liquors, upon fees paid
therefor, are not a contract between the st^te and the persons licensed,
and are not property in any constitutional sense. La Croix v. County
Commi89ioner8f 321.

10. They form a part of the internal police system of the state, are granted
in the exercise of the police power of the state, and may at any time
be revoked by legislative authority. lb,

11. The commissioners could take cognizance of an application for the
revocation of a license on the ground of a violation of law by the
licensee, while a criminal prosecution was pending against the licensee
for the same violation of the law. lb,

12. Under the statute (Gen. SUtutes, p. 522, sec 60,) which forbids the
keeping open on Sunday of any place in which it is reputed that intoxi-
cating liquors are kept for sale, an entire hotel may come within the
statute as having such a reputation, although liquor may not have been
sold in every room in it. State v. By an, 411.

13. Whether the reputation applies to the whole hotel or to a certain part
of it is wholly a question of fact for the jury. lb,

14. If it applies to the whole house, the occupant may yet keep it open on
Sundays for the admission of boarders and travellers. lb.

15. Under the statute (G^en. Statutes, p. 520, sec 43,) which makes it an
offense to keep a place in which it is reputed that intoxicating liquors
are kept for sale, such reputation is not conclusive evidence of the
guilt of the accused, but he may show by proper evidence that he did
not in fact keep liquors for sale, and that the reputation is not well
founded. State v. Moriarty, 415.

16. The statute in one section forbids the keeping of intoxicating liquors
for sale, and in another the keeping a place in which it is reputed that
intoxicating liquors are kept for sale. These two offenses are so far
distinct that an acquittal of the former is not a bar to a conviction of
the latter, although the times at which the offenses are charged to have
been committed are the same. lb,

17. In a prosecution for the former offense the whole burden of uproot is
on the state, while in one for the latter the burden of proof, after repu-
tation is shown, is shifted upon the accused. An acquittal in the

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6d6 INDEX.

former case may result from an insnfficiency of proof on the part of
the state, while upon the same facts a conviction in the latter case may
result from an insufficiency of proof on the part of the accused. lb,

18. Where the accused had kept the same place continuously for a year,
and was charged with keeping a place in which it was reputed that
intoxicating liquors were kept for sale on a certain day, it was held
that evidence was admissible that liquors were actually kept by him
exposed for sale at a time three months later, but within his continued
occupancy of the place. lb,

19. Such evidence would be of constantly diminishing weight with the
lapse of time, but would be admissible, under instructions of the court
as to the considerations affecting its weight. lb.

20. It being a question of the intent with which the liquors were kept,
, and intent being generally a piatter of continuance, the existence of

the intent at the former time might be inferred, more or less strongly,
from its existence later. lb.
See also County Commissioners, 1, 2; Search Warrant, 1 to 4-

1. The fifth section of the insolvent act (Gen. Statutes, p. 379,) provides
that **when a writ of attachment shall have been issued upon a
claim founded on contract of one hundred dollars or more, upon
which writ shall have been indorsed the affidavit of the plaintiff or
his attorney that he believes such claim to be justly due, if the officer
serving the same, after making demand of all such debtors as are found
within his precincts, cannot find sufficient property to satisfy such
attachment, * * the plaintiff may petition the court of probate for
the appointment of a trustee to take possession of the property of such
defendant for the benefit of his creditors." Held that the officer serv-
ing the writ was bound to attach real estate, if he could find sufficient
to satisfy the claim. Rawest 8 Appeal from Probate^ 317.

2. Also that it made no difference If the real estate was incumbered, so
long as the equity of redemption was of sufficient value. lb

1. The charter of a life insurance company authorized the trustees of the
company at any time at their discretion to establish a guaranty capital,
not to exceed $100,000, to be paid in cash, notes, or approved securi-
ties, to be applied, if necessary, to the payment of its debts; if not
used, to be returned, and If used, to be refunded with interest from
its first surplus receipts. The company was afterwards declared by the
insurance commissioner to be insolvent to the extent of $48,000, and
forbidden to issue policies unless the deficiency was made good. The
trustees thereupon procured from the stockholders a subscription of

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 57 of 61)