was direct or circumstantial, or made up of both.
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.
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
was a matter wholly within the discretion
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
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.
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.
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.
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,
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.
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.
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.
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
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.
See APPEAL, 1; EQUITY, 1; INTOXICATING LIQUORS, 1; PARTIES TO ACTIONS, 1, 2; PLEADING, 5.
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
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
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.
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.
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.
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.
See CITY IMPROVEMENT, 2. PROBATE COURT, (APPEAL FROM).
See APPEAL FROM PROBATE.
1. The statute (Gen. Statutes, p. 371, sec. 12,) which provides that on the refusal of an executor to accept the trust the court
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.
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.
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-
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.
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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