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ib.

ib.

3. It is wholly a question of fact for the was direct or circumstantial, or made up

jury whether intoxication existed to such of both.
a degree as to incapacitate the prisoner 10. Declarations as to facts attending a
for conceiving and executing a wilful, murder, made by the victim in the expec-
deliberate and premeditated intent to kill. tation of death, are admissible upon the

trial for the murder,

ib.
4. And held to be no error for the court,
having instructed the jury that intoxica-

NEW TRIAL.
tion might destroy the mental capacity to
form a specific intent to kill, to refuse to 1. Where in trespass a verdict was rendered
instruct them that if the prisoner was so for $40 damages, and the defendant
intoxicated that his drunken condition moved for a new trial for error in the
was observable, it was a matter of "ex- charge of the court, and it was manifest
treme importance on the question of that a new trial could legally result only

his capacity to form such an intent. ib. in another verdict against him, but proba-
5. It is no error for the court to refuse to bly for smaller damages, it was held that

charge that threats made by an intoxicated a new trial ought not to be granted even
person are entitled to very little considera- if the charge was erroneous. Hull v.
tion in determining the question of his in- Bartlett.

64
tent. It is wholly a matter for the jury, 2. As a rule, to entitle a party to a new
and the court is not bound to say anything trial for the refusal of the court to charge
about it.

ib. as requested, the request should be so
6. In murder in the first degree, the ques- framed that the court can properly com-

tion of the time that may have passed be- ply with it. Seeley v. The Town of Litch-
tween the conception of the intent to kill field.

134.
and the execution of the intent, is impor- 3. But there should be an exception where
tant only as there must have been time the request relates to an important feature
enough for the prisoner to form the wilful, of the case, concerning which it is clearly
deliberate and premeditated intent to kill. the duty of the court to instruct the jury
If there was enough for this it is all that irrespective of the request. If in such a
is needed; and this is wholly a question case the court not only refuses to instruct
for the jury.

ib. as requested, but entirely omits to give
7. It being a question whether the fatal any instruction whatever on the subject,

shot was fired from the prisoner's pistol the party is entitled to a new trial. ib.
or from one in the hands of the deceased,
both of which were before the court as

NUISANCE.
exhibits, it was held to be no error for the See ANIMALS AT LARGE, 1.
judge to refuse to allow an expert to take
away the pistols for the purpose of experi-

OFFICER.
menting with them with a view to ascer-
taining from which the bullet came. It
was a matter wholly within the discretion See ATTORNEY, 1; FOREIGN ATTACHMENT,
of the court.

ib.

1, 2; SERVICE OF PROCESS, 1.
8. The statute (Gen. Statutes, p. 538, sec.
6,) provides that “no person shall be con-

ORDER OF SALE, (PROBATE).
victed of any crime punishable by death, See PROBATE PROCEEDINGS, 14.
without the testimony of at least two
witnesses, or that which is equivalent

OUSTER.
thereto." Held not necessary that each
important fact be proved by the testimony See TENANT IN Common, 2.
of two witnesses or its equivalent. It is
enough if the evidence as a whole is

PARTIES TO ACTIONS.
equivalent to that of two witnesses.
9. And held that it was no error for the 1. The act of 1875 provides that additional
judge to refuse to instruct the jury that

parties may be made plaintiffs and addi-
the evidence must be that, or equivalent

tionał defendants may be cited in, upon
to that, of two “reliable" witnesses. It

such notice and such payment of costs as
was proper for the judge, having called

the court may order. Held that under
their attention to the statute, to leave

this statute new defendants might be cited
them to judge entirely for themselves as

in although there was no cause of action
to how far they were to accept the testi-

against the original defendants. Hilton

110.

v. Osgood.
mony, whatever might be the character
of the witnesses, and as to what con- 2. And that this could be done after the

ib.
stituted the equivalent of the testimony

writ had been abated.
of two witnesses, whether the evidence See AssIGNEE OF CLAIM, 1.

ib.

was

PARTITION.

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

9
1. The statute (General Statutes, p. 480, 2. H and L, who had for several years

sec. 1), provides that courts of equity may been carrying on manufacturing as a firm
order a partition of real estate held in in this state, entered into a contract with
common, and (sec. 4,) may order a sale A and B under which a joint stock corpo-
“when, in the opinion of the court, it ration was to be formed for the prosecu-
can not be conveniently used by the par- tion of the business, the capital of which
ties in interest together and a sale will should be taken equally by the four; and,
better promote the interests of the own- in consideration of A and B having
ers." Held to mean-when a sale will advanced money for immediate use, they
better promote the interests of the owners were to share equally in the profits from
than a partition. Johnson v. Olmsted, that date. The joint stock corporation

509

not organized until about nine
2. Every tenant in common is entitled to a months after, the business in the mean-
ib,

partition, if practicable; if it is not, to a time being carried on by II and L in their
sale.

ib. name as a firm. A and B lived in other
3. It is no legal objection to a sale that it states and had nothing to do personally

will result in a reduced income from the with the business. Held, that they were
property.

ib. liable, as partners of the firm, for debts
4. It is no objection to a sale that one of incurred in the business after the date of

the interests is owned by a wife in fee the contract. Citizens' National Bunk v.
with a tenancy by the curtesy in the hus- Hine.

236
band. The right of both can be protected 3. But held that they were not liable for
by the court in the money which will take notes given by H and L after the date of
the place of their share of the real es- the contract, in renewal of notes given by
tate.
ib. the firm before,

ib.
4. The contract was executed in the
PARTNERSHIP.

state of Massachusetts, but the business

to which it related was then carried on
1. A copartnership of which B had for ser- in this state. Held that the question

eral years been the senior member and his whether A and B had become liable as
son and son-in-law the other members, partners was to be deterinined by the law
was reorganized for the prosecution of of this state.

ib.
the same business under partnership arti-
cles in which it was provided that the

PLEADING,
partnership should not be dissolved by
the death of B, but that his executor 1. A declaration alleged that the defen-
should act in his stead in the performance dants, a railroad company, were bound to
of his stipulations; that each partner keep in repair a certain highway at a
should be credited by the new firm with point where it crossed their road, and
the amount of capital he had already put that the plaintiff in travelling upon the
in, with interest at seven per cent. in B’s highway was injured by its defective con-
favor and at six per cent. in favor of the dition at that point. The defendants
others; that the profits should be taken by pleaded specially-1, that the highway
the other partners, and that as fast as was not a legally laid out one; 2, that if
capital could be spared it should be used it was it was yet laid out many years after
to reduce by payments the amount B had their road was constructed. The court
in the concern. B died soon after, leaving below, on motion of the plaintiff, ordered
a will in which he disposed of his prop- the defendants to plead the general issue
erty, but in which he made no further instead of the special pleas, on the ground
provision with regard to the partnership. that they amounted to the general issue.
The remaining members of the firm, one The defendants, instead of thus pleading,
of whom was his executor, continued the afterwards filed a demurrer to the declara-
business as before, and the firm finally tion, which the court heard and overruled.
failed. Held-1. That B's estate was Held on error-1. That the first special
liable for debts of the partnership con- plea amounted to the general issue, and
tracted after his death. 2. That was properly rejected. 2. "That the sec-
this liability was not limited to the ond plea contained matter of avoidance,
amount that he had put into the partner- and should have been allowed to stand.
ship, but extended to his whole estate. 3. That its disallowance was not a matter
3. That B's executor had power, while of discretion, but was error. 4. That if
the firm was carrying on its business, to the defendants were to be regarded as
pledge the assets of the estate for the having been in contempt, by reason of
purpose of raising necessary funds for the their not obeying the order of the court

to plead the general issue, the acceptance 5. A respondent in a foreclosure suit was
of the demurrer by the court was a waiver a married woman. Held that the objec-
of the order and healed the contempt. tion that her husband should have been
Allen v. New Haven and Northampton joined as a defendant was in the nature
Company.

243 of a plea in abatement, and could not be
2. The plaintiff held a judgment lien upon heard after a trial on the merits. Good-
certain real estate of which a trust mort- win v. Keney.

564
gage had been made which, if valid, had
priority, and brought a suit for the setting See APPEAL, 1; EQUITY, 1; INTOXICATING
aside or postponing of the mortgage as LIQUORS, 1; PARTIES TO ACTIONS, 1, 2;
void against him, for a foreclosure of the PLEADING, 5.
juilgment lien, and for possession, making
the mortgagors and the trust mortgagee

PRACTICE ACT.
defendants. Held that the bill was not
multifarious. De Wolf v. Sprague Man- See DEED (REFORMATION OF,)5; EQUITY, 1.
ufacturing Company.

282
3. And held no objection that the trustee PRESENTATION OF CLAIM.

under the mortgage claimed adversely to
the plaintiff, inasmuch as it was a part of The statute (General Statutes, tit. 18, ch.
the plaintiff's case that the mortgage 11, part 3, sec. 5,) provides that “when a
should be postponed to the judgment lien, right of action shall accrue after the
thus making the trustee a party to be death of the deceased, it shall be ex-
foreclosed.

ib. hibited within twelve months after such
4. And the Practice Act (sec. 12,) expressly right of action shall accrue.” The court

authorizes the making of any person a made an order, after the death of B, for
defendant who claims an interest adverse the payment to a receiver of subscrip-
to the plaintiff or whom it is necessary tions to stock on a future day named, and
to bring in for a complete determination the receiver enclosed a certified copy of
of any matters involved in the suit.

the order to the executors, with a written
5. Where inatters are alleged in a declara- demand for payment at the time fixed by

tion and traversed, evidence is admissible the order. Held that it was no objection
to prove them, even though the allega- to the presentation that the right of action
tions would have been held insufficient had not then accrued. A presentation
on demurrer. Healey y. City of New before a claim matures is sufficient. Tal-
Haven.
394 cott v. Bristol.

252
See RIGHT OF WAY, 2.

PRESUMPTION OF CONTINUANCE.
PRACTICE.

1. It is a general rule that personal rela-
1. The defendant in a criminal prosecu- tion or an existing state of things, when

tion pleaded in writing, not guilty, and a once established by proof, is presiumed to
further plea that the prosecution was continue till the contrary appears. Don-
barred by the statute of limitations. Held ahue v. Coleman.

464
that he could not plead both pleas. State 2. But the presumption is merely one of
v. Ward.

429 fact, and its effect depends upon the ex.
2. The court below having refused to re- tent to which the quality of permanency

ceive the pleas, and the defendant not enters into the nature of the matter in
offering to amend, the court ordered him question. For this reason such a pre-
to plead orally, guilty or not guilty. Held sumption must in some cases be confined
to be no error.
ib. to a limited period.

ib.
3. Under the plea of not guilty the de- 3. Thus where a debtor went into bank-

fendaut was allowed to prove the same ruptcy at a certain date, the inference of
matter that he had set up in his plea in continued bankruptcy five months after-
bar. Held that if the court had erred in wards would be slight; but it would be
refusing to receive his plea in bar he had legitimate evidence to be weighed by the

not been injured by the ruling. ib. jury.
4. After the court had charged the jury, 4. And in the absence of all evidence on

counsel for the first time requested the the subject this presumption, though
judge to charge further upon a certain slight, would be controlling.

ib.
point in a certain manner. Held that
under the General Rules of Practice (Rule PRINCIPAL AND AGENT.
17, sec. 1,) his client had no right to have
the instructions then given reviewed upon 1. P, as treasurer of the plaintiff town,
a motion for a new trial. Donahue v. made suudry notes as treasurer without
Coleman.

464 authority from the town, which were dis-

ib.

came

а

counted by the defendant bank and the of probate shall commit the administra-
avails placed to his credit as treasurer of tion with the will annexed to the widow
the town. Funds properly in his hands or next of kin, does not apply to the case
as treasurer were from time to time de- of a non-resident testator having estate
posited in the same account and finally in this state. Lawrence's Appeal from
ihe notes made by him were, after sundry Probate.

411
renewals, paid by checks drawn by 2. The court would, as a matter of course,
him as treasurer. He afterwards be- concede to the executor of the will the

defaulter and fied. The right to prove the will in this state and
money drawn out by him as treasurer would appoint an administrator with the
and used to pay the notes, would have will annexed only in case of his inten-
made good his defalcation. The bank tional refusal to act.

ib.
discounted the notes in good faith, sup- 3. But this intentional refusal need not be
posing that he had authority to make express or formal, but the court may find
them and that the proceeds were used for it in his silence and inaction.

ib.
the benefit of the town, but in fact a large 4. Where a testator domiciled in the state
amount of the money drawn out on his of New York at the time of his death,
checks as treasurer was used for his own left real estate in this state and creditors
purposes. He was at_the time in good here, and the executors upon due pre-
repute for integrity. Held-1. That the sentment in that state refused to pay
bank must be held to have known that P the claims of the creditors here, and
had no power as treasurer to make the paid all other claims and divided the
notes in the name of the town, and no remaining estate among heirs, taking
power without special authority from the there for that purpose the rents of the
town, as to which it was its duty to in- estate here, and omitted for eight years
quire. 2. That the notes must therefore to prove the will in this state or give the
be treated as the private notes of P, and creditors here any opportunity through
the loans as made to him individually, them to reach the estate here, it was
3. That when P as treasurer drew out held that the probate court might prop-
the town money to pay the notes, he was erly find that the executors had refused
doing what the bank must be taken to to prove the will here.

ib.
have known that he had no right to do, 5. The presentation by 'creditors here of
and that the bank could not retain the their claims to the executors in another
money against the demand of the town.

state, and their neglect upon refusal to
Town of East Hartford v. American Nat. take proceedings in the courts of that
Bank.

539 state, do not impair their right to the in-
2. The defendant was negotiating with L terposition of our courts in their behalf.

as the agent of the owners for the pur- Failing there, they had the right to en-
chase of a fruit store and business, and force their claims through the more con-
informed him that if he purchased he venient process of auxiliary adininistra-
should need a clerk who understood the tion here.

ib.
business. I told him of the plaintiff and 6. The statute (Gen. Statutes, p. 372. sec.
that he could be hired for $11 a week, 3.) which provides that administration
and the defendant, having made the pur- shall not be granted after seven years,
chase, authorized L to hire the plaintiff applies only to intestate estates. The
at that price. Nothing was said as to the appointment of an administrator with a
time for which he was to be hired, but L will annexed is governed by the statute
agreed with him for six months. Held (Gen. Statutes, p. 371, sec. 11,) which
that in this he exceeded his authority, allows ten years for the proof of wills. ib.
and that the defendant, having dis- 7. Under the statute (Gen. Statutes, p.
charged him at the end of two months, 375, sec. 1,) which provides that “the
was not liable for a breach of contract. estate of any deceased person may be
Pasco v. Smith.

576 settled as an insolvent estate, if the court

of probate deem it expedient," it is not
See City IMPROVEMENT, 2.

necessary that there should be a special

finding by the court that it is expedient,
PROBATE COURT, (APPEAL FROM). but the judgment of the court that it is

so is implied in its orders.

ib.
See APPEAL FROM PROBATE.

8. Held to be no objection to an order for

the sale of real estate here to pay debts,
PROBATE PROCEEDINGS.

that there was personal property in the

state of principal administration suffi-
1. The statute (Gen. Statutes, p. 371, sec. cient for their payment.

ib.
12,) which provides that on the refusal of 9. And that a court of probate had no right,
an executor to accept the trust the court as a matter of discretion, to refuse to order

a sale of real estate here in view of the 16. And held to be no ground for not cor-
personal property there.

ib. recting such an error in a former and
10. And that the long delay of the credi- partial settlement, that that settlement

tors in taking proceedings in this state was at the time appealed from by a party
was no objection to such an order of sale, interested in other items the account
so long as the time had not expired for but not in the one now corrected, and
proving the will.

ib. that the settlement of the account, while
11. And held that it was not necessary for reversed as to some other items, was
the court to set out dower to the widow affirmed as to this.

ib.
in the real estate here, under the statute 17. A party appealing generally from the
(Gen. Statutes, p. 375, sec. 4,) because allowance of an administration account is
the widow had accepted in the courts of bound to make all objections to the ac-
New York the provision made for her by count as it then stands. Failing to object
the will in lieu of dower; and although to an item he waives his objection to it.
that provision was the use of one third of

ib.
the entire estate for life, it did not appear See ACCEPTANCE OF COMMISSIONERS' RE-
that the land here was any part of the PORT, 1, 2; APPEAL FROM PROBATE,
third set to her or that she had any inter- 1, 2.
est in it.

ib.
12. Where an administrator credits himself

RAILROAD COMPANY.
in his administration account in the pro-
bate court with the entire amount of the 1. Land owned by a railroad company in
claims allowed by the commissioners, and fee and with no restriction upon its use,
asks for an order to sell land to pay the and which is occupied only as a place for
balance in his favor, it is to be taken as a running off and leaving freight cars, but
method of informing the court of the which is well situated for mechanical and
amount to be raised by the sale and not as

manufacturing purposes, is liable to a
an assertion of actual payment. ib. city assessment for a public sewer by
13. The statute (Gen. Statutes, p. 395, sec. which it is benefited. N. Y., N. H. & H.

42.) directs that all probate notices re- R. R. Co. v. City of New Britain. 40
quired to be advertised in a newspaper 2. It was found by a committee that the
shall be "published in a daily newspaper, land would " in all probability" continue
or, if there be none, in a weekly news- to be held and used for railroad freight
paper, published in the county where the purposes. Held that a mere probability
court ordering the notice is held, and was not sufficient to affect the case, and
having a circulation in the probate dis- that if a degree of probability which
trict." Held that where the court ordered amounted to a practical certainty was in-
such a notice to be published “in a news- tended, the facts on which the conclusion
paper published in the county,” but it was based should have been found, that
was in fact inserted in a daily newspaper the court might see on what it rested. ib.
published in a city in the probate district 3. The act of 1873 required railroad com-
and circulating in the district, the actual panies to make fences along their roads
compliance with the law in the mode of when ordered by the railroad commission-
publishing the notice rendered a sale of ers. The commissioners under it made
real estate under it valid, in spite of the an order that the defendant railroad com-
defect in the order.

ib. pany should make a fence. The act was
14. The statute (Gen. Statutes, p. 394, sec. repealed in 1874, and was re-enacted in

36,) provides for an order for the sale of 1875. Held that the duty of the defen-
real estate to pay debts “in such manner dants to make the fence under the order
as shall appear to said court to be most of the commissioners terminated with
for the benefit of the estate." An order the repeal of the act in 1874, and was not
was made to sell “either at public or revived with the re-enactment of the act
private sale as should be deemed to the in 1875. Kane v. N. Y. & N. E. R. R.
best advantage.” The sale was made at Co.

139
public auction. Held that this being the
mode of sale favored by the law, the sale RECEIVER OF STOLEN GOODS.
was good, without regard to the alterna-
tive character of the order, the question 1. Under the statute (Gen. Statutes, p. 503,
of the regularity of which was not con- sec. 15,) which provides that the receiver
sidered.

ib.

of stolen goods shall be proceeded
15. A probate court in a final settlement of against as a principal” and punished in

an administration account may correct the same manner the information may
errors in any former and partial settle- cbarge merely the theft. State v. Ward.
ments, Clement's Appeal from Probate.

429
520 2. And where under an information charg-

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