APPRAISERS ON LEVY OF EXECU- TION.
An officer's return of a levy of execution upon real estate, certified with regard to the appointment of the appraisers, who by statute were to be three disinterested freeholders of the town, as follows:- "And thereupon, the creditor having appointed A. B., and the debtor neglect- ing and refusing to appoint or to agree on one or more appraisers, I applied to C. D., a justice of the peace, who desig- nated E. F. and G. H., all indifferent freeholders of said town, appraisers," &c. Held to be a sufficient return that A. B. was an indifferent freeholder of the town, as well as E. F. and G. H. Donahue v. Coleman.
upon the application of the bankrupt, be stayed to await such determination, pro- vided there was no unreasonable delay in endeavoring to obtain the discharge. A creditor whose claim accrued before the debtor went into bankruptcy brought a suit against him on the claim two years after the bankruptcy proceedings com- menced, and while they were pending and before a discharge had been obtained. The debtor did not ask that the suit be stayed, but only for leave to plead his dis- charge when it should be granted. Six months later the defendant without objec- tion went to trial on another issue. Judg- ment having been rendered against him he filed a motion in error. Held-1. That the bankrupt act did not require a stay of the suit except upon the debtor's applica- tion, and that his application for leave to plead his discharge when obtained could not be regarded as an application for a stay of the suit. 2. That if it was to be so regarded, yet it did not follow that it was error to proceed with the trial six months afterwards by consent of both parties. 3. That as it did not appear upon the record that the bankruptcy proceed- ings were still pending at the time of the trial, the court could not assume that they were so pending, and predicate error upon such assumption. Rood v. Stevens. 45
Whether, as at the time of the trial two years had elapsed after the bankrupt had a right to apply for a discharge, and the delay was not explained by him, there had not been unreasonable delay in the matter: Quære.
BILL OF PARTICULARS.
1. A bill of particulars under a general count or counts in a declaration, limits the proof to the items named in the bill. Zacarino v. Pallotti. 36
2. A declaration in general assumpsit con- tained among other statements of in- debtedness a demand upon an account stated and one for goods sold and deliv- ered. A bill of particulars was filed stating only items of indebtedness for money lent, for money paid out for goods, and for work and labor. Held that a demand for goods sold at an agreed price could not be proved, either as an account stated, as there had been no previous account, or under the allegation as to goods sold, as the bill of particulars con- tained no item of that kind. ib.
p. 193, sec. 7.) provided that the parents and guardians of apprentices, and the selectmen where the apprentices were bound by them, should inquire into their treatment by their masters, and if they should find the latter guilty of any per- sonal abuse or neglect, they might make complaint to a justice of the peace, who should cause such masters and appren- tices to come before him, and should reconcile them if able, and if not might at his discretion bind both to appear before the Superior Court, which, if it found the master guilty, might discharge the apprentice from his service. Held that the proceeding authorized by this act was a civil and not a criminal one. Fenn v. Bancroft. 216 2. And held that the selectmen of a town had no power to institute such proceed- ings in cases where the apprentice had been bound out by the parent or guardian. ib.
3. Nor where bound out by the selectmen of another town.
1. The statute (Gen. Statutes, tit. 20, ch. 13, part 5, sec. 5,) provides that a person arraigned for any offence punishable by imprisonment for life, may challenge per- emptorily ten jurors, and for any offence the punishment of which may be in the state prison for less than life, four jurors. Held that a crime which might in the discretion of the court be punished by imprisonment for life or for a term less than life, was to be regarded as punish- able by imprisonment for life, and that a person arraigned for such a crime was entitled to a peremptory challenge of ten jurors. State v. Neuner. 232 2. Where a prisoner has failed to exhaust his right of peremptory challenge, it is no ground for granting him a new trial that a challenge for cause was improperly overruled. State v. Smith.
The statute (Gen. Statutes, p. 442, sec. 2,) provides that the charge of the court on questions of law shall, in certain cases, be in writing, and after the verdict shall be filed with the clerk. The judge charged in such a case in writing, and the court immediately after the rendition of the verdict adjourned for the day. The next morning the judge, intending to file the charge with the clerk, was unable to find it. Held not a sufficient reason for granting a new trial, in the absence of any claim in the motion that any injury or inconvenience to the party had resulted. Kingsley v. Johnson. 462
1. A statute was in force from January 1st, 1875, to June 24th of the same year, when it was repealed, which provided that when any owner of land adjoining a highway should sustain damage to his property by a change of grade by the town, city or borough, the corporation should be liable to pay him the amount of the damage, the same to be ascertained in the same manner as upon the laying out of high- ways. Shortly before the act came into force the common council of a city ordered a change of grade on a street on which the plaintiff owned property. Before the work was commenced he peti- tioned the council to annul the order; the petition was referred to the road commis- sioners, and the case opened for a re-hear- ing before them; after a hearing the commissioners recommended that the order be affirmed, and it was afterwards affirmed by the council and the work commenced. The petition was made, the case re-heard, and the final action of the council had, while the statute was in force. The plaintiff had under the city charter a right of appeal from the order of the council to the Superior Court, but did not avail himself of it because of the provision of the statute for his compensa- tion. After the repeal, the city refusing to take any steps for ascertaining his damage under the statute, he brought an action at law for damages. Held-1. That the rights of the parties were determined by the law as it existed when the change of grade was undertaken or entered upon, it being the presumption that they acted in view of the law, respectively accepting the privileges which it conferred and the liabilities which it imposed. 2. That the work was to be regarded as undertaken when the final order of the common council was made. 3. That the ascertain- ment of the damages in the mode provi-
ded by the statute, was a proceeding for the city to take advantage of if it desired, and that, having taken no steps for the purpose, it could not be heard to claim that the plaintiff could recover compensa- tion only through such a proceeding. 4. That the plaintiff could recover his damages in an action at law. Healey v. City of New Haven. 394 2. The plaintiff claimed that the city offi- cials at the time when he could have appealed from the final order, stated to him that he was entitled to damages under the statute and promised that they should be paid by the city. Held that they were not agents of the city for the purpose of making any representations or promises on the subject, and that the city could not be affected by their acts in that respect.
the principal had been appointed con- servator, would estop the obligors from denying the legality of the appointment.
But where the bond given was an ordi- nary administrator's bond, with the name of the ward inserted in the place of that of the intestate, but with no other altera- tions to adapt it to the case of a conser- vator, describing the ward as the deceased, and stating, as the duties to be performed, all those of an administrator, and none of those of a conservator except so far as they happened in part to be the same as those of an administrator, it was held that the bond was void as being insensible and uncertain.
The disability of a person over whom a conservator is appointed in this state, - does not follow him when he removes to another state. Gates v. Bingham. 275 A contract made by such a person in another state, being valid and binding in the state where made, is equally so in this state.
And it makes no difference that the person contracting with him in another state knew that he had a conservator in this state. ib.
Where a committee has left undecided certain questions of fact on which evi- dence has been received by them, it is not the proper course for the court to hear evidence and decide the questions, but the report should be re-committed for a further finding by the committee upon the evidence already received. McArthur CONSTRUCTION OF DEED AND CON- v. Morgan.
1. Any private agreement with a debtor under which a creditor signing a compro- mise agreement is to have an advantage over other creditors, is void. Baldwin v. Rosenman. 105 2. And it does not alter the case that the creditor endorsed the composition notes given by the debtor to the other creditors. ib.
See SALE, (CONDITIONAL), 3.
1. The statute (Gen. Statutes, tit. 18, ch. 4, part 1, sec. 1,) provides that courts of probate may appoint a conservator over the person and estate of any person inca- pable of managing his own affairs, on the written application of the selectmen of the town or of any relative. Held that such an application was necessary to give the court jurisdiction, and that an ap- pointment made on the application of a private person not a relative was void. Hayden v. Smith.
83 2. It seems however that a recital in a bond given on such an appointment, that
C, who owned a tract of land, agreed with B that he would hold it for one year subject to B's order and at any time within the year give him a deed of it on his paying him $17,403 with interest. In consideration of this B agreed that if he did not take the land and it should not be sold by C for enough to pay that sum and interest, he would pay C such sum as, with what he should get for the land, would make up the amount of $15,000 and $2,403, with interest on the latter sum; but that he was not to pay more than the $2,403 and interest unless he should elect to take the land and pay the full price. Held that the obligation assumed by B was not to pay the $2,403 in case he did not take the land, but only, in case of a sale by C, to make up to him the differ- ence between the price for which he sold and the full price, but not exceeding the $2,403 and interest; and that therefore C could not maintain a suit against him on the contract until he had made a sale of
the property. Cowles v. Buckingham.
2. D, owning a large mill pond and the land below on both sides of the stream, and two mills which were supplied by a canal with water which returned to the stream below, sold a mill site to Rat a still lower point, the deed describing the
privilege conveyed and stating a covenant of the grantor as follows:-Which privil- ege shall consist of the right to pond back the water of the river to a point [describ- ing it; with the right to use all the water now used or which may hereafter be used at the two privileges owned by the grantor. And the grantor doth hereby covenant that the grantee and his assigns shall at all times have as much water to use as will be required, with a properly con- structed breast-wheel, to run six com- plete sets of woolen machinery during twelve hours in each working day; pro- vided the dam of the grantee be properly graveled and kept in repair, and provided there be water enough in the pond to furnish this quantity without reducing the head at the grantor's mills. Held that the description of the right granted as a right to use "all the water" &c., was to be taken in connection with, and was qualified by, the covenant of the grantor, and that the grant was of only sufficient water to run six sets of machin- ery for twelve hours each day. Fitch v. Belding.
See PRESUMPTION OF CONTINUANCE.
Upon a sale of a chattel by a lottery the chattel came into the defendant's hands, he claiming to hold the successful ticket. The plaintiff claimed to be the owner of the ticket and to strengthen his title pro- cured a bill of sale of the chattel from the person who had put it up for sale. In an action of trover brought by the plain- tiff to recover of the defendant the value of the chattel, it was held that the law would not aid the plaintiff to enforce a title growing out of such a transaction, and that his position was not aided by the bill of sale, since the former owner himself could not have recovered back the property. ib.
The act of 1881, (Session Laws, 1881, ch. 61,) provides that the county commis- sioners in each county shall, upon the recommendation of the selectmen of the town where the business is to be carried on, license suitable persons to sell intoxi- cating liquors in suitable places in said county. Held that under the act the commissioners have a discretion to grant or refuse licenses to persons recommended by the selectmen. Batters v. Dunning. 479 2. And having this discretion the exercise of their judgment in the matter can not be controlled by a mandamus. ib. 3. The act of 1881 provides that the county commissioners in each county shall con- stitute a court for the trial of causes for the revocation of licenses granted in the county for the sale of intoxicating liquors, and shall have sole and final jurisdiction of such causes; that accused persons shall be cited to appear before them by complaint of any informing officer, ac- companied by a summons signed by com- petent authority; that upon proof of violation of the law with regard to the sale of such liquors they may revoke the license; and that the chairman of the board, while it is in session, shall have all the powers of justices of the peace holding court to compel the attendance and secure the testimony of witnesses. Held that this statute does not constitute the county commissioners a court within the meaning of the constitution of the state, and that it is not therefore uncon- stitutional in not providing for a trial by jury in the first instance or on appeal. La Croix v. County Commissioners. 4. The county commissioners being only a board and not a court, a writ of prohibi- tion can not be issued against them by the Superior Court, for such a writ lies only against an inferior judicial tribunal. ib.
A statute passed in 1881 provided that the August term of the Superior Court in Windham County should be held in Windham, provided that a convenient place for holding the court there should be furnished without expense to the county. Before this all the terms were by law held at Brooklyn. Held that until a place for holding the court had been furnished at Windham, and estab- lished by the actual holding of the court there, Brooklyn remained the proper place for the return of writs for the August term. Edwards v. Ide. 507
2. A deed, after describing particularly certain lands in S, proceeded as follows:- "Also all such other lands as I own or have any interest in in said S, refer- ence being had to the land and probate records." Held that, upon proof that the grantor agreed and intended to convey by the deed an interest in an ore bed in S wholly disconnected from the lands de- scribed, and that both parties supposed the language used sufficient for that purpose, a court of equity would so re- form the deed as to make it include that interest. ib. Whether that interest would have passed under the deed as it was: Quære. ib. 563 4. And held that proof of the grantor's declaration at the time, that he intended to convey his interest in the ore bed and desired the deed to be so drawn as to con- vey it, was admissible in support of an application for a reformation of the deed.
1. A deed of land was left by a grantor at his death undelivered. Held that no effect could be given to it by proof of declarations of the grantor, made while making his will, that he regarded the deed as a testamentary disposition of that part of his property. Goodwin v. Keney.
2. The placing a deed on record with the intent that it should pass the title to the grantee constitutes a legal delivery. Moore v. Giles. 570 3. The law presumes an acceptance by the grantee, where he is benefited by the deed, though his refusal to accept may be
And held that the relief could be granted, under the Practice Act, in an action brought against the grantee to recover possession of the interest in the ore bed, with mesne profits, upon his answer alleging the necessary facts and praying for the relief. ib.
shown. 4. The plaintiff, apprehensive of an attach- ment of his property, made a deed of a piece of land to M, a granddaughter of his wife, then living in his family and twelve years of age, and after keeping it a month had it recorded, and afterwards kept it for several months in a package with other papers, until his wife, with his consent, delivered the package to her son for safe keeping, stating to him in the presence of the plaintiff that it contained papers belonging to the plaintiff and her- self and a deed belonging to M. The court found that he executed the deed and caused it to be recorded with the intent to place the property beyond the See STATE HOUSE, 1. reach of attachment and also to give his title to M, but that he expected that she would continue to live in his family and that he should be permitted to remain in possession during his life. Held that the finding that in putting the deed on record
DISCHARGE IN BANKRUPTCY. See BANKRUPT DISCHARGE.
1. Where in a civil suit under the Practice Act a plaintiff seeks equitable relief, it is no ground of objection that he ought to
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