Connecticut. Supreme Court of Errors.

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pany under the contract to take possession of the machinery and use it
until default and the right to acquire the legal title by the payment of
the note, constituted a good consideration for the contract. 3. That
there was no option left to the company to return the machinery and
have the note surrendered; the option in the matter resting with C
alone. Beaches Appeal from CommisHoners, 404.
2. Whether C, having elected to enforce his claim upon the note, couid
at the same time retain his right to retake the machinery if the note
was not paid: QiKBre. lb.

1. Mud flats on the seashore between high and low water mark may be
conveyed separately from the adjoining upland. Ladiet^ 8eamen*8
Friend Society v. HcUstectdy 144.

2. And they may be used by the owner for any purpose which does not
interfere with navigation. Ih,

3. And where a portion adjoining the upland is reclaimed, it becomes up-
land for most if not all purposes. lb,

4. An adverse occupancy of a portion of the flats belonging to the own-
ers of the adjacent upland, is a disseizin of the owner as much as if it
were upland, id.

o. Where land upon a highway that ran close along the shore and parallel
with it, was conveyed, eight rods in depth and extending into the mud
flats, but with the sides not at right angles to the highway, it was held
that the lines beyond the eight rods and extending to low water mark,
ran at right angles to the highway. lb.
See Town, 2.

See Sbashobb.

See City (Negliobnck of), 1.
L A contract ^*- to purchase of H his place in 8, containing abont fifteen
acres," held to be suflQciently explicit, and to need no more extrinsic
evidence than is admitted to apply the description in a deed to the land
intended. Hodges v. Kowing, 12.

2. The term *' place " used in snc^ a connection is well miderstood as
meaning the partjr's place of residence. lb.

3. It is a general rule in equity that where a contract for the sale of real
estate has been fairly entered into, each party is entitled to have it spe-
cifically performed. lb.

4. Courts of equity, however, sometimes refuse to apply the nile in cases
where it would work special hardship or inconvenience. lb.

6. A remedy at law, to exclude equity jurisdiction, must be as complete
and beneficial as the relief in equity. lb.


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INDEX. 638


1. Courls of equity will not undertake to enforce a specific performance
of a contract for ordinary personal services. Wm, Rogers 3ffg, Co. v.
RogerSf 856.

2. But where the services are special or extraordinary or purely intellect-
ual, or peculiar and individual in their character, the court will grant
an injunction in aid of a specific performance. 16.

8. The defendant agreed that he would serve the plain tilTs for twenty-five
years under the direction of their general manager, traveling for them
as directed, and rendering such services as secretai^ or other officer as
they might desire; and that he would not be engaged, or allow hib
name to be used, in any other hardware or cutlery business, either as
manufacturer or seller, but would give his entire time and services to
the interests of the plaintiffs. In a suit for an injunction against the
defendant's leaving the employment of the plaintiffs and engaging in
any other hardware or cutlery business, or allowing his name to be used
in any such other business, in which the plaintiffs set out the defend-
ant's contract and averred that his services had, by his familiarity with
their business and customersi become of special value to them, that he
was negotiating with certain rival manufacturers to go into their ser-
vice and to allow his name to be used as a stamp upon their wares, and
intended to use for their advantage his knowledge of the plaintiffs'
business, and that his doing so would cause irreparable damage to the
business of the plaintiffs, it was held on demurrer to the complaint —
1. That it did not appear that the services were of such a special and
individual character that a court of equity ought to grant the injunc-
tion prayed for. 2. That it did not appear that the plaintiffs had a
right to the defendant's name as a trade-mark; and that if they had,
they could have no difficulty in protecting their ownership of it. 8. Th at
it did not appear that the use of the defendant's name by other manu-
facturers would do the plaintiffs any injury beyond what might grow
out of a lawful business rivalry ; and that if, by reason of extraneous
facts, such use would be wrongful or specially injurious, such facts
ought to have been set out, so that the court might pass upon them.
4. That no facts were alleged which would bring the case within the
rule Ihat an employee should be enjoined from disclosing business se-
crets which he has learned in the course of his employment and has
contracted not to divulge.
1. The act of 1889 (Session Laws, ch. 249,) which created the office of
state^referee, provides that it shall be the duty of the referee to hear
and report to the Superior Court the facts in such cases, pending in
that court, as shall be referred to him, but does not provide for any
action upon the report by the court. Held that, as the duties to be
performed by the referee are similar to those performed by auditors
and committees, it must be taken to be the intention of the legislature
that the court should proceed with a report from him in the same way
that it would do with a report from an auditor or committee. Stebbim
V. Waterhouae, 870.


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684 INDEX.

2. Whether the state referee has power tinder the statute to fitid the issue
upon the facts found by him: Qu(Bre. lb,

3. Where he did so, and the court, assuming that he had not power to do
it, itself found the issue upon the facts reported, it was held tliat the
error, if there was one, had become harmless. lb.

L A proviso in a statute is to be construed strictly, and takes no case out
of the enacting clause which is not fairly within its terms. Claries
Appeal from Probate, 207.
2. The statute which provides that the burden of proof of the actual
value shall be upon the defendant in a suit on a bond given in substi-
tution for an attachment was passed in 1886, (Session Laws, 1886, ch.
135J and contained a provision that it should apply ** to any action now
pending." This provision was omitted in the statute as it appears in
the revision of 1888, § 937. The present action was pending in 1886,
but the revision of 1888 was in force when it was tried. Held that the
right to the benefit of the statute had attached before the revision took
effect and was not taken away by the revision. BirdaaU v. WTieeler,

Gen. Statutes, § 878. Contracts beyond appropriations, . 451

** '* § 497. Foreign trustee of estate in probate, 223

" •* § 632. Ancestral estate, 207

*' '< §§ 929,937. Bond substituted for attached property, 429

** " § 1072. Depositions, 492

" " 5§ 1125, 1129, Petitions for new trials, ... 55

** " § 1206. Bastardy, 286

" § 1688. Fraud by pubUc agent, ... 98

" ** § 1637. Appeals by state In criminal cases, . 98

** ** § 1748. Agreement for forfeiture of wages, . 104

" " § 2655. Cemetery, 91

** " § 2673. Notice to town of injury from defective

highway, 43

" " § 2807. Alimony 326

** " § 3010. Foreclosure barring debt, ... 257
*< '< § 3016. Sale of chattels on foreclosure, . . 257
" " § 3018, Builders' lien, . . . . . 445
" " § 3311. State paupers, 277

Acts of 1889, ch. 220. Removal of grade crossings, . . 5.32
" " ch. 249. State referee, 870

The statute of frauds is satisfied by the signature to the written memo-
randum of the party to be chained by It, whether the suit be brought at
law or In equity, and whether the contract relates to real or personal
estate. Hodges v. Kotoing, 12.

1. A trust fund, consisting of railroad stocks and other securities, was
held by a testamentary trustee for the benefit of 2r, a daughter of the
testator, the Income to be paid to her and the remainder to go to her
heirs; the will providing that she might, If she deemed it necessary,
from time to time receive portions of the principal, not to exceed $1000


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INDEX. 685

a year, nor to exceed in all half of the principal. The trustee and N
used the trust fund in stock speculations, the defendants acting as their
brokers in the matter, and receiving stocks from them for the purpose,
charging a commission which they shared with a New York firm of
brokers, who were members of the stock exchange, and through whom
the purchases and sales were made. The result was a loss of the trust
estate. In a suit brought by a trustee for the children of N, to re-
cover of the defendants the value of the trust property which they had
received and disposed of, it was held — 1. That so far as the defendants
sold the stock as mere agents, in good faith, without knowledge, actual
or constructive, that other persons interested in the trust were being
injured, or that the sale was not for a legitimate object, and had fully
accounted, they were not liable. Otherwise if they knew, or were in
the circumstances chargeable with knowledge, that the stocks were
being sold in violation of the trust. 2. That if the trustee sold the
stocks for the purpose of using the proceeds in stock speculations or of
permitting ^ so to use them, and the defendants purchased them
knowing the purpose, they participated in the breach of trust, and
were liable for the stodLs received by them. And in the same way were
liable if they received the stocks or security and subsequently sold
them, using the avails to make good losses on other stocks held by them
on margins for the trustee and N. 8. That the defendants were bound
to inquire as to the ownership of the property, and as the will, which
gave to N her interest in it, also gave the remainder to her heirs, and
could have been found on the records of the probate court, they were
chargeable with knowledge of the rights of the heirs. 4. That it was
of no consequence, upon the question of notice to the defendants, that
there was a doubt as to who would take the remainder, and as to
whether the gift over was valid; it being enough that there was a re-
mainder, and that there were possible parties besides N who had an
Interest in the property. 5. That it did not affect the case that the
court of probate had distributed the property to " trustees for N,** such
distribution being in terms made under the will, which gave N only a
life estate, and the court making no distribution of the remainder.
6. That any property which had been bought and added to the trust
fund by a former trustee in the place of trust property sold, and which
came into the defendants' hands, stood upon the same grounds with
original trust property. Leake v. WaUon, 382.

2. The defendants, stockbrokers, agreed with the plaintiff to buy certain
stocks for him on a margin and hold them subject to his demand, he to
advance, as required, sufficient money to protect them from loss. Held
that the defendants were not bound to make an actual purchase of the
stocks, but that it was enough if they were ready and able at any time
to procure them in the market and deliver them on demand at the price
of the day of the contract. Ingrdham v. Taylor, 508.

8. And the stocks having declined in the market, it was held that no
damage could have resulted to the plaintiff by the neglect of the de-
fendants to make an actual purchase of them. lb,



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686 INDEX,


See Abbitbation.
NegotUtions between the parties which resulted in an agreement to give
a guaranty toolc place on Sunday, but the written guaranty was not
executed until a secular day. Held not to be invalidated by the fact
that the negotiations were on Sunday. Tyler v. Waddingham, 376.

1. A signed the note of B as his surety. The note fell due and was
protested for non-payment. Soon after B was carried into insolvency
by his creditors and afterwards A was compelled to pay the note. In
a suit against A by B*9 trustee in insolvency upon an account of B, it
was held that A had a right to set off the amount of the note against
the claim. Mervoin v. Austin, 22.

2. When the note fell due and was not paid, A^ being the sole solvent
debtor upon it, was at once entitled to a credit by B of the amount
upon his claim. 16.

3. And it made no difference that the note was not paid until after B had
been carried into insolvency, lb.

4. Nor that ^ up to the time that B was adjudicated an insolvent, had
supposed him to be solvent, lb.

5. Where a surety has knowledge of and assents to the giving of time to
the principal debtor or the making of a new contract with him, he is
not discharged. Rocknille Bank v. Holt, 520.

See GuABANTY, 8.

1. The defendant having neglected to return a sworn list of her taxable
property in H, the assessors were by law authorized to make a list foi
her. The list made by them contained the following item — ** insur-
ance stocks, $81,768." Held not to be insufficient by reason of its not
specifying the different insurance stocks. City qf Hartford v. Cham-
pion, 268.

2. A statute passed in 1888 provided that ten per cent might be added by
the assessors to the lists made by them for persons neglecting to make
and return a sworn list, and for the second year's neglect twenty per
cent, and thirty per cent for the third year. This statute was repealed
in 1885, and the addition to be made to the lists in such cases limited
to ten per cent. Held not to affect additions of twenty and thirty per
cent made by the assessors to lists in 1888 and 1884, for the taxes upon
which suit was brought after the repeal of the statute. 76.


See Husband and Wife, 6.

A town has power to appear before the General Assembly and oppose
the granting of a petition for a division of its territory, and may em-
ploy legal counsel and incur other reasonable expenses for the purpose.
Farrel v. Town of Derby, 284.

2. And the selectmen have power to act In the matter where the town
has not otherwise taken action. 16.

8. A resolution of the General Assembly passed in 1888 empowered the
town of New Haven to issue its bonds to an amount not exceeding


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INDEX. 687

$200,000, to be used ezdoslyely for the extension and improvement of
the public park system of the town; the act to talce efPect wlien accepted
at a special town meeting to be caUed by the selectmen ; and the meet-
ing to have power to take action with respect to the issuing of the bonds,
and their form and terms. A later section proTided that the park com-
mission, created by the act, should not make any expenditure, or con-
tract for any, '* exceeding the amount which shall have been previously
appropriated by the town for its use." At a meeting warned and held
for the purpose the town accepted the resolution of the General Assem-
bly and voted **' that the selectmen and treasurer are hereby directed
to prepare suitable bonds as authorized by said act, not exceeding
$200,000, of the tenor, character and terms hereinafter provided, and
are authorized to dispose of them in such amounts and at such times as
shall be required by the park commission, to provide the sums made
necessary by said commission in its proceedings under said act.'' Held
that this vote constituted an ** appropriation " within the meaning of
the resolution. Woodward v. Retftiolda, 486.

4. And held, upon the suit of partiei of whom the park commission had
purchased lands for a public park, that it was the duty of the select-
men and treasurer of the town to issue bonds within the limit prescribed,
to an amount sufficient for payment for the lands. lb.

See Highway (Defective), 1 to 4.

Where property is given to a trustee for a certain person for life, with
remainder over, the trustee is charged with the duty of safely keep-
ing the property until it is delivered to the remainder-men. But the
remainder-men in such a case would not be strictly beneficiaries under
the trust. Leake v. Watson, 83.

See Stockbroker, 1.

A trustee in insolvency, while he has a right in behalf of creditors to set
aside preferences and fraudulent conveyances, yet, as a general rule,
takes the estate subject to such biudens as the debtor has put upon it
and to such equities as would have been good against him. Merwin v.
Austin, 23.

1. Whether a vendor's lien exists in this state: Queers, Soule v. Hurl-

bUty 511.

2. If it does, yet if the vendor Is not the party claiming the lien, the prin-
ciple would have no application. lb,

3. And it is generally held that a vendor's lien is not assignable. lb.

4. And where the vendor does not rely upon the credit of the vendee, but
takes security for either the whole or a part of the'purchase money, it
is generally considered as a waiver of the vendor's lien. lb,


See Deed of Land, 1.
1. A testatrix gave her estate to a trustee to hold and manage during the
lives of her husband and son and the minority of the children of tlie
latter, and directed that he should from time to time pay to her hus-
band ** so much of the income and principal as he might require for


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638 INDEX.

Ills personal use, upon his written request; " and that after his death
so much of the income as was necessary should be expended for the
maintenance of her son and his children, the property upon the termi-
nation of the trust to be divided among her heirs at law according to
the statute with regard to intestate estates. Held — 1. That the life es-
tate given the husband was not enlarged to a fee by the provision for
the payment to him of *' so much of the income and principal as he
might require for his personal use." 2. That It was not intended by
this provision to give the husband whatever he might demand, but only
what was needed for his support, after he had used whatever other
means of support he might have. S. That the trustee was to use his
judgment as to what should be paid to the husband, and the payment
was to be made only on a concurrence of his judgment with that of
the husband. If they differed as to the necessity, or the property
should be wrongfully applied to the husband's use, the court would on
application protect the rights of all parties interested. 4. That it was
the duty of the tnistee to allow the fund, so far as not needed for the
support of the husband, to accumulate during the life of the latter.
5. That after the death of the husband the trustee was to apply so much
of the income as was necessary for the support of the son and his chil-
dren during the life of the son and the minority of the children, at the
end of which time it was to be distributed according to the will. Bull
v. Holloway, 210.
2. A testator gave the use of all his real and personal estate to M for life
and after her death to two nephews for their lives. By a prior clause
he had given pecuniary legacies to two women, one an aged family ser-
vant, and by later clauses he gave his dwelling house and furniture to
two female relatives and a pecuniary r^acy to the children of one of
the legatees. Certain charitable bequests were then made, which were
in terms made payable after the death of the survivor of the two
nephews. Held that, taking the whole will together, it must be re-
garded as the intention of the testator that all the legacies not in
terms postponed till the termination of the life estates should vest
upon his death, and that the life use given to if and the nephews was
only of the property left after those legacies were paid. Lepard v. Skin-
ner, 829.
See Probate Court, 1.

1. It is the proper way, in examining an expert, to state all the particu-
lars upon which his opinion is sought RoraJbaek v. Penntyhania Co.,

2. But the direction of the matter lies within the discretion of the pre-
siding judge. lb.

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Abom V. Rathbone, 64 Ck>nn.,
444 318

Adair r! Lott,' 8 HUli l&i ..!!!. 182
Adams v. Gay, 19 Verm., 858,. . 395
Adams o. Logan, 6 Monr., 175,. . 183
Adams o. Way, 82 Conn., 160,.. 582
Alford V. Miller, 82 Conn., 548, 445
Allen V. Bundle, 50 Ck)nn., 9. ... 117
Anacosta Tribe v, Murback, 15

Md., 91, 557

Appleton V, Norwalk Library

Corp., 58 Conn., 8, 475

Ardesco Oil Co. v. Nor. Am. Oil

& Mining Co., 66 Penn. St., 881, 84
Atwood V. Vincent, 17 Conn.,

575,... 521

Austin V. Wigbt, 88 Conn., 405,. 208
Ayer r. Ashmead, 81 Conn., 447, 818

Bailey v. Henrey. 185 Mass., 172, 480
Baldwin V. Hayden, 6 Conn., 453. 445
Baldwin o. Soc for Diffusion of

Knowledge, 9 Simons, 893, ... 864

Banttl «. Leigh, 8 T. R., 571, 172

Bank v. Lineberger, 88 N. C,

454, 531

Barton's Trust, L. R., 5 Eq. Cas.,

288, 187

Bassett o. Mason, 18 Conn., 186, 258
Beam o. Bamum, 21 Conn., 200, 818
Beers o. Botsford, 13 Conn., 153, 82
Beetem*s Admrs. v. Burkhold-

er, 69 Penn. St., 249, 88

Benedicts Lynch, 1 Johns. Ch.,

870, 18

Berteman's Appeal., 55 Penn.

St., 183, 895

Beverley v. Borke, 4 GratU, 208, 254
Bingham's Trustees v, Guthrie,

19 Penn. St., 418, 172

Bishop V. Day, 13 Verm., 88, . . . 84
Blexsome v. Williams, 8 Bam.

<ft Cress., 232, 895

Boaler v. Mayer, 10 C. B., N.

S..76, 531

Booth V. Hart, 48 Conn., 480^. . . 279
Booth V. Starr, 1 Conn., 244, .... 116
Borland v. Marshall, 2 Ohio St.,

808, 188

Brady v. Calhoun, 1 Pen. A

Watts, 140, 864

Brant v. Virginia Coal A Lron

Co., 98 U. S. R., 826, 216

Breed o. Hillhouse, 7 Conn., 523, 396
Brewster v> Cowen, 55 Conn.,

152, 100

Brooks V. Everett, 13 Allen, 457, 183
Brown o. Fales, 139 Mass., 21,.. 117
Brown v. Pierce, 97 Mass., 46, . . 87
Brown r. Town of Soutlibury,

68 Conn., 212, 58

Brunei v. Brunei, L. R., 12 Eq.,

298 275

Buckingham v. Burgess, 3 Mc-
Lean, 364, 426

Buckley v. Morgan, 46 Coim.,

393 38

BueU i. Flower, 39 Conn., 462^ . 318
BuUen o. Sharp, L. R., 1 C. P., 86, 422
Burnes v, Scott, 1 17 U. S. R., 682, 117
Burton v, Marshall, 4 Gill, 487,. 864

Bush 0. Bradley, 4 Day, 209, 183

Butler V. Lee, 11 Ala., 885, 395

California Bank v. Fresno Canal

Co.,53Cal., 201, 364

Calont V. Aldrich, 99 Mass., 74.. 424
Canfield v. Eleventh School Dist,

19Conn.,529, 318

Carpenter ». Scott, 13 R. L, 477, 473
Carringtonv.Holabird, 17 Conn.,

530,.. 67

Catlin V. Baldwin, 47 Conn., 17^3, 497
ChalkerD. Chalker. I Conn., 87, 187
Chambers v. Bobbins, 28 Conn.,

652, 818

Champion v.Bo6twick,18 Wend.,

185, 384

Chaplin v. Hartshome, 6 Conn.,

44, 289

Chapman V. Beardsley,81 Conn.,

115, .521

Chase v. Barrett, 4 Paige, 148,.. 424
Chasec. Cheney, 58 III., 509,.... 558
Chase v. Ingalls, 122 Mass., i«3, 473
Chicago Building So. v. Crowell,

65 III., 453 222

Church c. Meeker,34 Conn., 421, 150
Citizens Bank c. Hine, 19 Conn.,

286, 423

City Bank o. Hopson, 53 Conn.,

454, 396



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Clason 0. Bailey, 14 Johns., 484, 18 East Haven v. Hemingway, 7

Clayr.White. IMunf., 162,.... 182 Conn., 186, 150

Clinton v. Westbrook, 38 Conn., Eastman v. Clark, 53 N. Hamp.,

12, 275 276, 422

Close V. Close, 4 De G. M. <fe 6., Elkhart Mat. Aid Ass. t^ Hough-

176, 581 ton, 103 Ind., 286 315

Clough V. Davis, N. Hamp., Ellsworth v. Cook, 8 Paige, 646, 182

500, 395 Ensign v. Hands, 1 Johns. Cas.,

Colet. Knight, 3 Mod., 278,.... 233 171, 385

Colvot?. Davies, 73 N. York, 211, 531 Estabrook c. Smith, 6 Gray, 572, 118

Com. V. Donahue, 148 Mass., 520, 445 Everett o. Chapman, 6 Conn.,

Com. V. Lynn, 123 Mass., 218,.. 445 347, 423

Com. V. Pike Beneficial So., 8 Evera^reen Cemetery Association

Watto A Serg., 250, 557 v, Beecher, 53 Conn., 551,. ... 04

Com. 0. Ricker, 131 Mass., 581,. 293

Coolidge 0. Brookline, 114 Mass., Farmers Bank v. Blair, 44 Barb.,

592, 249 641, 531

Corey v. Long, 43 How. Prac, Farmers A Mech. Bank t. Brew-

504, 255 er, 27 Conn., 601, 238

Corlies o. Estes, 31 Verm., 653, 532 Fellowesv.NewHaven,44Conn^

Covenant Mut. Ben. Ass. v.Hoff- 240, 458

manjllO 111., 606, 316 Ferguson «. Tweedy, 43 N. York,

Cox D.Hickman, 8 H.L. Cas., 311, 422 543, 188

Crompton v. Pratt, 105 Mass., First Nat. Bank v. Barlow, 35

255, 478 Conn., 357, 275

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