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was direct or circumstantial, or made up
of both.

ib.

10. Declarations as to facts attending a
murder, made by the victim in the expec-
tation of death, are admissible upon the
trial for the murder.
ib.

1.

2.

NEW TRIAL.

3. It is wholly a question of fact for the
jury whether intoxication existed to such
a degree as to incapacitate the prisoner
for conceiving and executing a wilful,
deliberate and premeditated intent to kill.
ib.
4. And held to be no error for the court,
having instructed the jury that intoxica-
tion might destroy the mental capacity to
form a specific intent to kill, to refuse to
instruct them that if the prisoner was so
intoxicated that his drunken condition
was observable, it was a matter of "ex-
treme importance" on the question of
his capacity to form such an intent. ib.
5. It is no error for the court to refuse to
charge that threats made by an intoxicated
person are entitled to very little considera-
tion in determining the question of his in-
tent. It is wholly a matter for the jury,
and the court is not bound to say anything
about it.
6. In murder in the first degree, the ques-
tion of the time that may have passed be-
tween the conception of the intent to kill
and the execution of the intent, is impor-
tant only as there must have been time
enough for the prisoner to form the wilful,
deliberate and premeditated intent to kill.
If there was enough for this it is all that
is needed; and this is wholly a question
for the jury.
ib.
7. It being a question whether the fatal
shot was fired from the prisoner's pistol
or from one in the hands of the deceased,
both of which were before the court as
exhibits, it was held to be no error for the
judge to refuse to allow an expert to take See ANIMALS AT LARGE, 1.
away the pistols for the purpose of experi-
menting with them with a view to ascer-
taining from which the bullet came.

Where in trespass a verdict was rendered
for $40 damages, and the defendant
moved for a new trial for error in the
charge of the court, and it was manifest
that a new trial could legally result only
in another verdict against him, but proba-
bly for smaller damages, it was held that
a new trial ought not to be granted even
if the charge was erroneous.
Hull v.
Bartlett.
64

ib.

It

was a matter wholly within the discretion

ib.

of the court.
8. The statute (Gen. Statutes, p. 538, sec.
6,) provides that "no person shall be con-
victed of any crime punishable by death,
without the testimony of at least two
witnesses, or that which is equivalent
thereto." Held not necessary that each
important fact be proved by the testimony
of two witnesses or its equivalent. It is
enough if the evidence as a whole is
equivalent to that of two witnesses. ib.
9. And held that it was no error for the
judge to refuse to instruct the jury that
the evidence must be that, or equivalent
to that, of two "reliable" witnesses. It
was proper for the judge, having called
their attention to the statute, to leave
them to judge entirely for themselves as
to how far they were to accept the testi-
mony, whatever might be the character
of the witnesses, and as to what con-
stituted the equivalent of the testimony
of two witnesses, whether the evidence

3.

As a rule, to entitle a party to a new
trial for the refusal of the court to charge
as requested, the request should be so
framed that the court can properly com-
ply with it. Seeley v. The Town of Litch-
field.

134.

But there should be an exception where
the request relates to an important feature
of the case, concerning which it is clearly
the duty of the court to instruct the jury
irrespective of the request. If in such a
case the court not only refuses to instruct
as requested, but entirely omits to give
any instruction whatever on the subject,
the party is entitled to a new trial.

NUISANCE.

OFFICER.

ib.

See ATTORNEY, 1; FOREIGN ATTACHMENT,
1, 2; SERVICE OF PROCESS, 1.
ORDER OF SALE, (PROBATE).
See PROBATE PROCEEDINGS, 14.
OUSTER.

See TENANT IN COMMON, 2.

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PARTITION.

1. The statute (General Statutes, p. 480,
sec. 1), provides that courts of equity may
order a partition of real estate held in
common, and (sec. 4,) may order a sale
"when, in the opinion of the court, it
can not be conveniently used by the par-
ties in interest together and a sale will
better promote the interests of the own-
ers."
Held to mean-when a sale will
better promote the interests of the owners
than a partition. Johnson v. Olmsted,

509

2. Every tenant in common is entitled to a
partition, if practicable; if it is not, to a
sale.
ib.

3. It is no legal objection to a sale that it
will result in a reduced income from the
property.
ib.
4. It is no objection to a sale that one of
the interests is owned by a wife in fee
with a tenancy by the curtesy in the hus-
band. The right of both can be protected
by the court in the money which will take
the place of their share of the real es-
tate.
ib.

PARTNERSHIP.

1. A copartnership of which B had for sev-
eral years been the senior member and his
son and son-in-law the other members,
was reorganized for the prosecution of
the same business under partnership arti-
cles in which it was provided that the
partnership should not be dissolved by
the death of B, but that his executor
should act in his stead in the performance
of his stipulations; that each partner
should be credited by the new firm with
the amount of capital he had already put
in, with interest at seven per cent. in B's
favor and at six per cent. in favor of the
others; that the profits should be taken by
the other partners, and that as fast as
capital could be spared it should be used
to reduce by payments the amount B had
in the concern. B died soon after, leaving
a will in which he disposed of his prop-
erty, but in which he made no further
provision with regard to the partnership.
The remaining members of the firm, one
of whom was his executor, continued the
business as before, and the firm finally
failed. Held—1. That B's estate was
liable for debts of the partnership con-
tracted after his death. 2. That
this liability was not limited to the
amount that he had put into the partner-
ship, but extended to his whole estate.
3. That B's executor had power, while
the firm was carrying on its business, to
pledge the assets of the estate for the
purpose of raising necessary funds for the

use of the firm. Blodgett v. American
National Bank.

9
2. H and L, who had for several years
been carrying on manufacturing as a firm
in this state, entered into a contract with
A and B under which a joint stock corpo-
ration was to be formed for the prosecu-
tion of the business, the capital of which
should be taken equally by the four; and,
in consideration of A and B having
advanced money for immediate use, they
were to share equally in the profits from
that date. The joint stock corporation
was not organized until about nine
months after, the business in the mean-
time being carried on by H and L in their
name as a firm. A and B lived in other
states and had nothing to do personally
with the business. Held, that they were
liable, as partners of the firm, for debts
incurred in the business after the date of
the contract. Citizens' National Bunk v.
Hine.
236

3. But held that they were not liable for
notes given by H and L after the date of
the contract, in renewal of notes given by
the firm before.

4.

1.

ib.

The contract was executed in the
state of Massachusetts, but the business
to which it related was then carried on
in this state. Held that the question
whether A and B had become liable as
partners was to be determined by the law
of this state.
ib.

PLEADING.

A declaration alleged that the defen-
dants, a railroad company, were bound to
keep in repair a certain highway at a
point where it crossed their road, and
that the plaintiff in travelling upon the
highway was injured by its defective con-
dition at that point. The defendants
pleaded specially-1, that the highway
was not a legally laid out one; 2, that if
it was it was yet laid out many years after
their road was constructed. The court
below, on motion of the plaintiff, ordered
the defendants to plead the general issue
instead of the special pleas, on the ground
that they amounted to the general issue.
The defendants, instead of thus pleading,
afterwards filed a demurrer to the declara-
tion, which the court heard and overruled.
Held on error-1. That the first special
plea amounted to the general issue, and
was properly rejected. 2. That the sec-
ond plea contained matter of avoidance,
and should have been allowed to stand.
3. That its disallowance was not a matter
of discretion, but was error. 4. That if
the defendants were to be regarded as
having been in contempt, by reason of
their not obeying the order of the court

243

282

5.

A respondent in a foreclosure suit was
a married woman. Held that the objec-
tion that her husband should have been
joined as a defendant was in the nature
of a plea in abatement, and could not be
heard after a trial on the merits. Good-
win v. Keney.

564

See APPEAL, 1; EQUITY, 1; INTOXICATING
LIQUORS, 1; PARTIES TO ACTIONS, 1, 2;
PLEADING, 5.

PRACTICE ACT.

PRESENTATION OF CLAIM.

to plead the general issue, the acceptance
of the demurrer by the court was a waiver
of the order and healed the contempt.
Allen v. New Haven and Northampton
Company.
2. The plaintiff held a judgment lien upon
certain real estate of which a trust mort-
gage had been made which, if valid, had
priority, and brought a suit for the setting
aside or postponing of the mortgage as
void against him, for a foreclosure of the
judgment lien, and for possession, making
the mortgagors and the trust mortgagee
defendants. Held that the bill was not
multifarious. De Wolf v. Sprague Man- See DEED (REFORMATION OF,) 5; EQUITY, 1.
ufacturing Company.
3. And held no objection that the trustee
under the mortgage claimed adversely to
the plaintiff, inasmuch as it was a part of
the plaintiff's case that the mortgage
should be postponed to the judgment lien,
thus making the trustee a party to be
foreclosed.
ib.
4. And the Practice Act (sec. 12,) expressly
authorizes the making of any person a
defendant who claims an interest adverse
to the plaintiff or whom it is necessary
to bring in for a complete determination
of any matters involved in the suit.
5. Where matters are alleged in a declara-
tion and traversed, evidence is admissible
to prove them, even though the allega-
tions would have been held insufficient
on demurrer. Healey v. City of New

Haven.

See RIGHT OF WAY, 2.

PRACTICE.

ib.

394

1. The defendant in a criminal prosecu-
tion pleaded in writing, not guilty, and a
further plea that the prosecution was
barred by the statute of limitations. Held
that he could not plead both pleas. State
v. Ward.
2. The court below having refused to re-
ceive the pleas, and the defendant not
offering to amend, the court ordered him
to plead orally, guilty or not guilty. Held

to be no error.

429

ib.

ib.
3. Under the plea of not guilty the de-
fendant was allowed to prove the same
matter that he had set up in his plea in
bar. Held that if the court had erred in
refusing to receive his plea in bar he had
not been injured by the ruling.
4. After the court had charged the jury,
counsel for the first time requested the
judge to charge further upon a certain
point in a certain manner. Held that
under the General Rules of Practice (Rule
17, sec. 1,) his client had no right to have
the instructions then given reviewed upon
a motion for a new trial. Donahue v.
Coleman.

464

The statute (General Statutes, tit. 18, ch.
11, part 3, sec. 5,) provides that "when a
right of action shall accrue after the
death of the deceased, it shall be ex-
hibited within twelve months after such
right of action shall accrue." The court

made an order, after the death of B, for
the payment to a receiver of subscrip-
tions to stock on a future day named, and
the receiver enclosed a certified copy of
the order to the executors, with a written
demand for payment at the time fixed by
the order. Held that it was no objection
to the presentation that the right of action
had not then accrued. A presentation
before a claim matures is sufficient.
cott v. Bristol.

Tal-

252

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counted by the defendant bank and the
avails placed to his credit as treasurer of
the town. Funds properly in his hands
as treasurer were from time to time de-
posited in the same account and finally
the notes made by him were, after sundry
renewals, paid by checks drawn by
him as treasurer. He afterwards be-
came a defaulter and fled. The
money drawn out by him as treasurer
and used to pay the notes, would have
made good his defalcation. The bank
discounted the notes in good faith, sup-
posing that he had authority to make
them and that the proceeds were used for
the benefit of the town, but in fact a large
amount of the money drawn out on his
checks as treasurer was used for his own
purposes. He was at the time in good
repute for integrity. Held-1. That the
bank must be held to have known that P
had no power as treasurer to make the
notes in the name of the town, and no
power without special authority from the
town, as to which it was its duty to in-
quire. 2. That the notes must therefore
be treated as the private notes of P, and
the loans as made to him individually.
3.

That when P as treasurer drew out
the town money to pay the notes, he was
doing what the bank must be taken to
have known that he had no right to do,
and that the bank could not retain the
money against the demand of the town.
Town of East Hartford v. American Nat.
Bank.

539

2. The defendant was negotiating with L
as the agent of the owners for the pur-
chase of a fruit store and business, and
informed him that if he purchased he
should need a clerk who understood the
business. I told him of the plaintiff and
that he could be hired for $11 a week,
and the defendant, having made the pur-
chase, authorized L to hire the plaintiff
at that price. Nothing was said as to the
time for which he was to be hired, but L
agreed with him for six months. Held
that in this he exceeded his authority,
and that the defendant, having dis-
charged him at the end of two months,
was not liable for a breach of contract.
Pasco v. Smith.

576

See CITY IMPROVEMENT, 2.
PROBATE COURT, (APPEAL FROM).

See APPEAL FROM PROBATE.

PROBATE PROCEEDINGS.

1. The statute (Gen. Statutes, p. 371, sec.
12,) which provides that on the refusal of
an executor to accept the trust the court

2.

of probate shall commit the administra-
tion with the will annexed to the widow
or next of kin, does not apply to the case
of a non-resident testator having estate
in this state. Lawrence's Appeal from
Probate.
411

The court would, as a matter of course,
concede to the executor of the will the
right to prove the will in this state and
would appoint an administrator with the
will annexed only in case of his inten-
tional refusal to act.
ib.
3. But this intentional refusal need not be
express or formal, but the court may find
it in his silence and inaction.

ib.
4. Where a testator domiciled in the state
of New York at the time of his death,
left real estate in this state and creditors
here, and the executors upon due pre-
sentment in that state refused to pay
the claims of the creditors here, and
paid all other claims and divided the
remaining estate among heirs, taking
there for that purpose the rents of the
estate here, and omitted for eight years
to prove the will in this state or give the
creditors here any opportunity through
them to reach the estate here, it was
held that the probate court might prop-
erly find that the executors had refused
to prove the will here.

ib.

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The

6. The statute (Gen. Statutes, p. 372, sec.
3.) which provides that administration
shall not be granted after seven years,
applies only to intestate estates.
appointment of an administrator with a
will annexed is governed by the statute
(Gen. Statutes, p. 371, sec. 11,) which
allows ten years for the proof of wills. ib.
7. Under the statute (Gen. Statutes, p.
375, sec. 1,) which provides that "the
estate of any deceased person may be
settled as an insolvent estate, if the court
of probate deem it expedient," it is not
necessary that there should be a special
finding by the court that it is expedient,
but the judgment of the court that it is
so is implied in its orders.
ib.
8. Held to be no objection to an order for
the sale of real estate here to pay debts,
that there was personal property in the
state of principal administration suffi-
cient for their payment.

9.

ib.

And that a court of probate had no right,
as a matter of discretion, to refuse to order

a sale of real estate here in view of the
personal property there.
ib.
10. And that the long delay of the credi-
tors in taking proceedings in this state
was no objection to such an order of sale,
so long as the time had not expired for
proving the will.
ib.
11. And held that it was not necessary for
the court to set out dower to the widow
in the real estate here, under the statute
(Gen. Statutes, p. 375, sec. 4,) because
the widow had accepted in the courts of
New York the provision made for her by
the will in lieu of dower; and although
that provision was the use of one third of
the entire estate for life, it did not appear
that the land here was any part of the
third set to her or that she had any inter-
est in it.
ib.
12. Where an administrator credits himself
in his administration account in the pro-
bate court with the entire amount of the
claims allowed by the commissioners, and
asks for an order to sell land to pay the
balance in his favor, it is to be taken as a
method of informing the court of the
amount to be raised by the sale and not as
an assertion of actual payment.
ib.
13. The statute (Gen. Statutes, p. 395, sec.
42.) directs that all probate notices re-
quired to be advertised in a newspaper
shall be "published in a daily newspaper,
or, if there be none, in a weekly news-
paper, published in the county where the
court ordering the notice is held, and
having a circulation in the probate dis-
trict." Held that where the court ordered
such a notice to be published "in a news-
paper published in the county," but it
was in fact inserted in a daily newspaper
published in a city in the probate district
and circulating in the district, the actual
compliance with the law in the mode of
publishing the notice rendered a sale of
real estate under it valid, in spite of the
defect in the order.

ib.
14. The statute (Gen. Statutes, p. 394, sec.
36,) provides for an order for the sale of
real estate to pay debts "in such manner
as shall appear to said court to be most
for the benefit of the estate." An order
was made to sell "either at public or
private sale as should be deemed to the
best advantage." The sale was made at
public auction. Held that this being the
mode of sale favored by the law, the sale
was good, without regard to the alterna-
tive character of the order, the question
of the regularity of which was not con-

sidered.

ib.

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2.

3.

1.

RAILROAD COMPANY.

Land owned by a railroad company in
fee and with no restriction upon its use,
and which is occupied only as a place for
running off and leaving freight cars, but
which is well situated for mechanical and
manufacturing purposes, is liable to a
city assessment for a public sewer by
which it is benefited. N. Y., N. H. & H.
R. R. Co. v. City of New Britain.

40

It was found by a committee that the
land would "in all probability" continue
to be held and used for railroad freight
purposes. Held that a mere probability
was not sufficient to affect the case, and
that if a degree of probability which
amounted to a practical certainty was in-
tended, the facts on which the conclusion
was based should have been found, that
the court might see on what it rested. ib.

The act of 1873 required railroad com-
panies to make fences along their roads
when ordered by the railroad commission-
ers. The commissioners under it made
an order that the defendant railroad com-
pany should make a fence. The act was
repealed in 1874, and was re-enacted in
1875. Held that the duty of the defen-
dants to make the fence under the order
of the commissioners terminated with
the repeal of the act in 1874, and was not
revived with the re-enactment of the act
in 1875. Kane v. N. Y. & N. E. R. R.
Co.
139

RECEIVER OF STOLEN GOODS.

Under the statute (Gen. Statutes, p. 503,
sec. 15,) which provides that the receiver
of stolen goods shall be "proceeded
against as a principal" and punished in
the same manner the information may
charge merely the theft. State v. Ward.
429
520 2. And where under an information charg-

15. A probate court in a final settlement of
an administration account may correct
errors in any former and partial settle-
ments. Clement's Appeal from Probate.

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