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APPRAISERS ON LEVY OF EXECU-
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.
ASSESSMENT BY CITY.
See CITY IMPROVEMENT, 1; RAILROAD
ASSIGNEE OF CLAIM.
An assignee of a claim, who has paid no
consideration for it but seeks to recover
for the benefit of the assignor, can not
maintain a suit upon it in his own name
under the statute, Gen. Statutes, p. 417,
sec. 6. Bixby v. Parsons.
ASSUMPTION OF MORTGAGE DEBT
See FOREIGN ATTACHMENT, 2.
ATTORNEY AT LAW.
An attorney-at-law, who places a writ in the
hands of an officer for service, is person-
ally responsible to the officer for his fees,
unless he expressly informs him at the
time that he will not be so responsible, or
there are circumstances which make it
clear that that was the understanding of
the parties. Heath v. Bates.
1. The United States bankrupt act of 1867
provided that no creditor whose debt was
provable should be allowed to prosecute
to final judgment any suit therefor
against the bankrupt until the question
of his discharge should have been deter-
mined; and that any such suit should,
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 tion 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.
2. 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
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.
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.
BINDING OUT OF APPRENTICE.
1. The statute, Rev. of 1866, p. 318, sec.
98, (somewhat changed in Rev. of 1875,
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
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.
3. Nor where bound out by the selectmen
of another town.
BOUNDARY LINE THROUGH LONG
The object of the joint commission for the
settlement of the boundary line through
Long Island Sound between this state and
New York, was not to change the line,
but to determine where it was.
sumption is that the line has always been
as thus determined, unless the contrary
appears. Elphick v. Hoffman.
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.
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.
CHARGE OF JUDGE.
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.
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
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.
2. And it does not alter the case that the
creditor endorsed the composition notes
given by the debtor to the other creditors.
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
COMMITTEE IN CHANCERY,
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-
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
5. A contract made by such a person in
another state, being valid and binding in
the state where made, is equally so in
And it makes no difference that the
person contracting with him in another
state knew that he had a conservator in
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.
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.
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 R at a
still lower point, the deed describing the
2. It seems however that a recital in a
bond given on such an appointment, that
privilege conveyed and stating a covenant 6.
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.
See PRESUMPTION OF CONTINUANCE.
CONTRACT, (CONSTRUCTION OF).
See CONSTRUCTION OF CONTRACT.
1. A penalty implies a prohibition though
there are no prohibitory words in the
statute. Funk v. Gallivan.
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
2. Every contract made for the doing of
anything that is prohibited by statute is
void, though not made so in terms by the
3. Courts will not lend their aid to enforce
such contracts while executory, nor for
the recovery back of property where exe-
cuted, but if both parties are in pari
delicto it leaves them where it finds them.
4. In the application of this rule it is
necessary to give to either party the right
to plead or prove the true nature of the
transaction in bar to an action founded
5. It follows that possession acquired from
an unlawful transaction or by an unlaw-
ful contract fully executed, will often
avail the party holding it as a sufficient
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.
2. And having this discretion the exercise
of their judgment in the matter can not
be controlled by a mandamus.
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.
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.
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.
DEED, (REFORMATION OF).
Where the language of a deed fails, by
mistake of the draftsman, to properly
describe the property intended to be con-
veyed, a court of equity can reform it.
Cake v. Peet.
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 8
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
Whether that interest would have
passed under the deed as it was: Quære.
he intended to give his title to M, was
decisive as to that act being a delivery of
the deed, and that the question whether
upon all the facts it had been legally
delivered was not open to this court. ib.
See CONSTRUCTION OF DEEDS AND CON-
TRACTS; DEED, (REFORMATION OF,) 2, 3;
HUSBAND AND WIFE, 5; INSOLVENT
See IMPRISONED DEBTOR.
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.
3. The law presumes an acceptance by the
grantee, where he is benefited by the
deed, though his refusal to accept may be
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 See DEED, 2, 3, 4.
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
Where in a civil suit under the Practice
Act a plaintiff seeks equitable relief, it is
no ground of objection that he ought to
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.
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.
DISCHARGE IN BANKRUPTCY.
See BANKRUPT Discharge.