Volume 67 — Connecticut Reports

AgtioíT to recover the possession of certain real .estate, together with damages, brought to the Superior Court in Windham County and tried to the court, Thayer, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings of the court. The land in question had been owned and occupied by George W. Palmer up to the time of his death, and both parties to the action claimed under him.

Suit to determine the construction of the will of Henry Wright of England, deceased, brought to the Superior Court in Hartford County, and tried to the court, Thayer, J.; facts found and judgment rendered in favor of the next of kin, and appeal by the respondents Edward and Sarah Bradshaw, for alleged errors in the rulings of court. The testator was an Englishman, who had formerly lived in this country, and died possessed of personal estate in this State.

Action to recover damages for negligence in causing the death of the plaintiff’s intestate; brought to the Superior Court in Hartford Count}' and heard in damages to the court, Thayer, J.; facts found and judgment rendered for the plaintiffs for $10 damages only, and appeal by the plaintiffs for alleged errors in the rulings of the court.

<p>Personal property, so far as any question of testamentary succession is concerned, has its situs, in the eye of the law, at the testator’s domicil; and to the courts of such domicil the executors are obliged to account for its management and disposition. o</p> <p>A resident of this State, claiming payment of a legacy under the will of a New York testator whose estate is in due course of settlement in the Surrogate’s Court of that State, must resort to the New York courts for the determination and enforcement of' his rights as legatee.</p> <p>That the testator owned real estate here and that ancillary administration was, for that reason, granted in this State, to one of the executors, does not aid the plaintiff; nor does the fact that the legacy consisted of shares of stock in a Connecticut corporation* upon which he served process of foreign attachment at a time when it had in its possession a dividend on the stock left by the testator and still standing in his name upon its books, which had been declared and become payable since his death. Both shares and dividend are equally assets of the estate to be accounted for before the Surrogate’s Court in New York.</p>

<p>The common council of the city of New London, which was authorized by charter to regulate, license, or prohibit the peddling or vending of any merchandise in or through the streets of the city, passed an ordinance providing that no person should, under penalty of a fine, peddle or sell in any street, or from house to house, in said city, any merchandise, without a license from the mayor or the common council, and requiring for such license a fee of not more than $50. Held that such ordinance was void, since it did not determine with reasonable certainty the duration of the license; and also because the fee of $50 required therefor, was so greatly in excess of the cost of issuing the license as to amount in reality to an irregular and unauthorized revenue tax.</p> <p>The power given by charter to the common council of a city to license the peddling or vending of goods in its streets, involves the necessity of determining with reasonable certainty the extent and duration of the license and the sum to be paid therefor. Such power must be exercised by the common council itself, and cannot be delegated by it in whole or in part to any person or authority.</p>

<p>Under the common counts, supplemented by a bill of particulars, the plaintiff sought to recover, among other items, for the reasonable worth of several months’ board furnished the defendant, and the sum of $50 for money paid on his behalf for legal expenses. The defendant, having pleaded a general denial and payment, testified that it was expressly agreed that the price of the board should be $S per month, and that his share of the legal expenses should not exceed $25; and that for these items he had fully paid the plaintiff. He also offered in evidence two receipts, one for “ one month’s board, $8,” and one “ in full in regard to $25. K. M. Douglass bill,” as applicable to these items respectively, and requested the court to charge the jury that if they should find the said sums were paid by the defendant in full of the plaintiff’s claim, they might then treat them as payments in full, under the pleadings. The court did not so charge, but instructed the jury that the receipt for $8 was not in terms a receipt in full, but might be considered as evidence tending to show the agreed price of board as claimed by the defendant, and thus indirectly to prove payment in full as to this item, as claimed by him; and that .the receipt for $25 was not in itself a receipt in full, but that said sum if found to have been paid and received in full for the defendant’s share of the legal expenses, either as agreed upon, or in the absence of any agreement, would establish the defendant’s claim of payment, as respects that item. Held that the defendant had no just cause of complaint.</p> <p>In order to make a receipt admissible to prove not only payment of the sum therein indicated, but also an accord and satisfaction, or to have it operate as a release or discharge, such accord and satisfaction, or such release and discharge, must be specially pleaded.</p> <p>Where an instruction to the jury, once correctly and fully given, is equally applicable to another and similar claim in the case, the failure of the trial court to repeat it in full with reference to such other claim, cannot avail the losing party, if it is apparent from the whole charge that the jury could not have failed to understand their right and duty in the premises.</p>

<p>A driver of a team who is about to stop on his left hand side of the road, for the purpose of entering a building there situated, has the right to shape his course in that direction; and in so doing he is bound simply to exercise ordinary and reasonable care with reference to such teams as he may encounter.</p> <p>Sections 26S9, 2690 of the General Statutes do not prescribe any rule at variance with these principles. The manner of passing upon the highway, as there laid down, is limited to the meeting of vehicles, each one of which must be for the conveyance of persons. The statute does not oblige the driver of a truck to turn to the right when meeting a vehicle for the conveyance of persons; although he may be negligent, if he does not do so.</p> <p>Negligence is a question of law when the case turns upon the standard to be applied to measure the care due from the party whose conduct is under consideration; but seldom, if ever, when it turns upon what his conduct in fact was, and there is no uncertainty as to the rule of law by which it is to be governed.</p> <p>The Act of 1893 (Chap. 174) in regard to appeals, did not authorize appeals from findings as to matters of fact, upon which no error of law was assignable.</p>

<p>The plaintiff leased the upper floors of a business block owned by the defendants, for the term of ten years at an annual rent of $3,000, with an option to purchase the entire property during, or at the end of the term, for $120,000 (of which $100,000 might remain on mortgage upon the property), less such sum as he might then have paid by way of rent. The contract further required the plaintiff to pay all taxes and insurance upon the property, to heat the building and furnish fuel therefor, to maintain the elevator, and generally to do all things necessary to make the premises desirable for tenants, and prevent depreciation in the value of the property. The defendants, upon their part, covenanted that if the net receipts of the plaintiff by way of rents, should not equal the rent paid by him, they would repay him the loss, provided he should make a written statement qf such deficit each year, and give them notice of his intention to claim reimbursement therefor. The agreement also provided that the defendants, upon receipt of such a notice, might cancel the lease. The plaintiff entered into and continued in possession, under the contract, performing all his covenants, until the upper stories of the building were rendered untenantable by fire. The defendants adjusted the loss, and received from the insurance companies as compensation therefor, about $24,000, of which they expended about $15,000 only, in rebuilding; but whether the building was fully restored to its former value and usefulness or not, did not appear. Shortly thereafter the plaintiff notified the defendants of his election to buy the property, demanded of them a deed, offering to give back a mortgage pursuant to the contract, and at the same time insisted that the unexpended insurance money belonged to him, and should be credited to him as part of the cash payment of $20,000 called for by the agreement. This sum if credited to the plaintiff would, together with the amount of rent then paid by him, have equaled or exceeded the stipulated cash payment of $20,000. The defendants refused to comply with these demands, and the plaintiff brought suit for the specific performance of the agreement. Held:—</p> <p>1. That the intent of the parties, as evidenced by the peculiar and exceptional features of the agreement, was to treat the plaintiff’s election to purchase the property, whenever in fact made, as relating back to the date of the execution of the agreement,'thus constituting in legal effect a present purchase of the property.</p> <p>2. That in absence of controlling precedents to the contrary, the agreement ought to be so construed as to accomplish this intent, which accorded with the principles of equity and good conscience, as well as with the doctrines applicable to the equitable conversion of property.</p> <p>3. That as it did not appear that the building had been in fact fully restored by the expenditure of part only of the insurance money, the plaintiff was equitably entitled to have the unexpended insurance money applied upon the cash portion of the purchase price.</p> <p>Whether the application might not have been made in reduction of the mortgage note instead of the cash payment, had the defendants seasonably insisted upon that course, quaere.</p> <p>The plaintiff alleged in his complaint that the property was not fully restored by the partial expenditure made, which the defendants denied; but upon the trial the plaintiff -was prevented by the objection of the defendants, which the court sustained, from offering evidence in proof of this averment. Held that whether the question of full restoration was immaterial to the rights of the plaintiff, as decided by the trial court, or not, the defendants certainly could not question the correctness of the ruling.</p>

<p>The parties to an action, which had been substantially heard upon the issues raised by the pleadings, in view of pending negotiations for an amicable settlement and to prevent unnecessary increase in the expense “ by the entering up of judgment,” stipulated in writing, by their respective attorneys, that judgment might be rendered on a stated day in the future “ by the clerk, in term time or vacation,” in favor of the plaintiff for a certain sum and costs. This stipulation was duly filed and approved in writing by the trial judge; and on the day mentioned (no amicable settlement having been reached) judgment was rendered pursuant to the agreement, as evidenced by the judgment file in the usual form. Held:—</p> <p>1. That the stipulation, when read as a whole and in the light of the attendant circumstances, did not empower or require the clerk to render judgment, but only to enter it up.</p> <p>2. That the judgment file plainly showed that the court, and not the clerk, rendered the judgment; and that the record was conclusive upon this appeal.</p> <p>3. That the defendants’ allegation, in their reasons of appeal, that the judgment was rendered by the clerk, was not legally assignable as error since it contradicted the record.</p> <p>The defendants also assigned as error certain rulings of the court respecting the pleadings, but did not claim that the judgment rendered was not in accord with the terms of the stipulation, or that it was unjust or inequitable, or, that upon a new trial any other judgment would or ought to be rendered. Held that the defendants could not now avail themselves of these alleged errors, since the stipulation thus solemnly entered into must be regarded, in legal effect, as a judgment by confession, and as such, final and conclusive upon the parties, irrespective of possible errors in earlier stages of the trial.</p>

<p>The statement in a judgment fiie signed only by the clerk, that the court finds the issue for the plaintiff, necessarily imports that all the issues closed to the court were so found. Such form is, however, irregular, and clerks should use the word “ issues, ” where the pleadings raise more than one issue.</p> <p>The general issue and a plea of tender, whether of the whole or of part of the plaintiff’s demand, are repugnant to each other and cannot properly be pleaded together. If, however, they are so pleaded, and the plaintiff prevails on the general issue and the defendant on the issue of tender, the former is entitled to costs but the latter is not.</p> <p>Under the practice in this State, proof of tender entitles the party pleading it to costs; only when it is pleaded as a sole defense.</p> <p>Where the question of law the appellant seeks to have reviewed, is apparent on the face of the pleadings, it is unnecessary, and therefore improper, to seek to raise it by reference to evidence adduced under those pleadings, and certified up to this court under the Act of 1893. Reasons of appeal thus assigned rest on a wrong foundation, and are thei'efore substantially defective.</p>

Action to recover the amount of a savings bank deposit alleged to have been owned by the plaintiff’s intestate at the ■ time of her decease; brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Action of scire facias to recover the amount of a judgment rendered against one Charles R. Alsop, in which suit the defendant was garnishee; brought to the Superior Court in Middlesex County and tried to the court, Shumway, J.; facts found and case reserved for the advice of this court. The case is sufficiently stated in the opinion. I. The bare possibility of receiving a legacy from, or share in the estate of, a living person, is not property.

<p>Unless procured by fraud, a judgment for a pecuniary demand, rendered by a competent court of Great Britain against a Connecticut citizen who was personally served with process within its jurisdiction, is conclusive upon the merits of the cause of action, in a suit brought here for the collection of such judgment. (One judge dissenting.)</p> <p>In an action upon a judgment of a court of a foreign country, it is unnecessary for the plaintiff specifically to allege that such court had jurisdiction of the parties and subject-matter, that the defendant had reasonable notice of the institution of the suit and a fair opportunity to be heard, or that any hearing or trial was had. These facts are the indispensable conditions of the due adjudication of the foreign court, and are necessarily implied in the averment, (authorized by the Practice Book, Form 169,) that the court “duly adjudged” the defendant should pay, etc.</p> <p>The motive which prompts the exercise of a legal right is of no importance. Accordingly it is no defense to an action on such a judgment, that the original action was brought when the defendant was about to leave the foreign country after a brief business visit, for the purpose of embarrassing and impeding him and preventing him from having a fair opportunity to defend the suit.</p> <p>The law and practice determining the form of judicial proceedings in a foreign court may always be shown, and shown by parol.</p> <p>Whenever a judgment on a copartnership demand may lawfully be rendered in its favor without stating the names of the copartners, such judgment is, in legal effect, one in favor of the individual members of the firm, and may properly be declared on as such, in any xn'oeeeding subsequently brought to enforce it. .</p>

<p>Action for contribution, brought to the Superior Court in Hartford County and reserved by that court, Thayer, J upon an agreed statement of facts, for the advice of this court.</p> <p>The case is sufficiently stated in the opinion.</p> <p>I. The death of Augustus Ward and Samuel S. Cowles did not free their estates from liability which might thereafter accrue upon the bond. Brandt on Suretyship, §§ 248, 258, 320; DeColyar on Guaranties, 344; Richardson v. Draper, 87 N. Y., 347; Hecht v. Weaver, 34 Fed. Rep., 111; Knotts v. Butler, 10 Rich. Eq. (S. C.,) 143. This conclusion necessarily results from the position of the signers of this bond to each other. The bond itself provided for a release from this liability by notice, which might be given either by the signer, or by his executors or administrators after his death; and as no such notice was given, it remained in full force notwithstanding the death.</p> <p>This same principle also applies to the claim of the defendants, that the limitation of presenting claims against the estates of deceased persons, is a bar.</p> <p>A point is made that it is necessary to make all the co-sureties parties to this proceeding; but it is held in many cases, and in good sense, that it is not necessary to make those who are insolvent, or are out of the State, parties. Brandt on Sureties, § 256.</p> <p>II. The other important question in the case is as to the direct liability of Mrs. Hardy in this suit. Her claim is that no action will lie against her individually, but the only way of reaching any of the property which came from Samuel S. Cowles, and which she now owns, is by a proceeding against his administrator. No doubt this would be the proper and only course in an action at law for contribution, where each of the guarantors was liable for a specific proportion of the amount guaranteed. If all the signers or their estates were solvent, actions would only lie at law, as each one would be liable only for a specific amount, and there would be no joint liability.</p> <p>By the terms of the Practice Act, as well as by its spirit, a suit is to be brought against the person who is really and directly liable for a claim, and all the old strict rules of law by which one had to sue this, that, or the other person, who were not the real ones who ought to pay, have been done away with.</p> <p>I. The complaint should be dismissed for want of equity. If any right exists, there is an adequate remedy at law. The contract of January 30th, 1872, fixed the amount of contribution which each should pay, making insolvency and non-residence immaterial. Baylies on Sureties and Guaranties, 447; DeColyar on Guarantors, 349; Brandt on Suretyship and Guaranty, § 291; Brace v. North, 30 Conn., 60 ; 1 Parsons on Contracts, 37, and eases cited; 1 Story’s Eq. Jur., § 498; Stone v. Stone, 32 Conn., 143 ; Bulkeley v. Welch, 31 id., 339, 344.</p> <p>II. The death of Samuel S. Cowles, with notice of the same to all parties interested, operated as a revocation of his guaranty to the bank, as to discounts made subsequent to his death.</p> <p>In the guaranty in question the guarantors themselves provided for release from liability thereon, by giving notice; but that was cumulative only, as the law incorporated into the contract a similar provision, as it did also, a provision of revocation in the event of death. The authorities on this point are numerous and conclusive. 2 Parsons on Contracts, 30; Baylies on Sureties and Guarantors, 8, 9,10, 287, 298 and 299, note; 2 Williams on Executors (9th Ed., 1893), 1660; 1 Smith’s Mercantile Law (10th Ed., 1890), 587,588; Jordan v. Bobbins, 122 Mass., 168; Hyland v. Habich, 150 id., 112; Nat. Eagle Bank v. Hunt, Admr., 16 R. I., 148; Kernochan v. Murray, 111 N. Y., 309; Agawam Bk. v. Strever, 18 id., 502, 513, 514; Bunt v. Roberts, 45 id., 691, 696 ; Michigan State Bank v. Estate of Lavenworth, 28 Vt., 210; Rapp v. Phoenix Ins. Co., 113 Ill., 390, 395, 396; Jeudevine v. Rose, 36 Mich., 54; Pleasanton's Appeal, 75 Pa., 344; Slagle v. Forney's Executors, 15 Atl. Rep., 427; The Borne National Bk. of Chicago v. Estate of Waterman, 30 111. App., 535; La Bose v. Bank, 102 Ind., 332; Conduitt v. Ryan, 3 Ind. App., 1; Taussig v. Reid, 145 Ill., 488; Menard v. Seudder, 7 La. An., 385, 391, 392; Cremer v. Higginson, 1 Mason, 323 ; Gelpcke v. Quentell, 74 N. Y., 601; City Nat. Bk. v. Phelps, 86 id., 484, 490; Mason v. Pritchard, 12 East., 226 ; Westhead v. Sproson, 6 H. & N., 728; Harriss v. Fawcett, L. R. 15 Eq. Cas., 311; Offord v. Davies, 31 L. R. C. B., 319, 12 C. B. N. S., 748, 757; Coulthart v. Clementson, L. R. 5 Q. B. D., 42; Lloyds v. Harper, L. R. 16 Ch. Div. 290, 314, 319 ; Brown v. Batchelor, 1 N. & H., 255, 263.</p> <p>III. The plaintiffs are not entitled to contribution from the estate of Samuel S. Cowles. There is no just and equitable ground for it. There was no common burden. The right of contribution is an equity which exists whenever one person has borne a common burden. Where there is no common burden there can be no right of contribution. Bispham’s Equity, §§ 328, 330, 331; Munson v. Drakely, 40 Conn., 560 ; Tobias v. Rogers, 13 N. Y., 59; Wells v. Miller, 66 id., 255 ; Kramph’s Fxrs. v. Hate’s Fxrs., 52 Pa. St., 525; Lowndes v. Pinckney, Í Rich. Eq. (S. C.), 155; 1 Brandt on Sureties, 402, 397, 415; Russell v. Bailor, 1 Ohio St., 327; Stockmeyer v. Oertling, 35 La. An., 467; Ledoux v. Durrive, 10 id., 7; Turner’s Admr. v. Thom, 89 Va., 745; Skrainka v. Rohan, 18 Mo. App., 340, 343; Briggs v. Hinton, 14 Tenn., 233; Cochran v. Walker’s Bxrs., 82 Ky., 220 ; De Colyar on Guarantors and Sureties, 343, 344; Johnson v. Harvey, 84 N. Y. 365; Camp v. Bostwick, 20 Ohio St., 337 ; Adams’ Equity, 267; Aspinwall v. Sacchi, 57 N. Y., 335; Stirling v. Forrester, 3 Bli., 590.</p> <p>IV. No action for contribution can be maintained against Mary C. Hardy, or the administrator of Horace Cowles. There never was any joint relation or obligation between them and the plaintiff to the bank. They were strangers to the guaranty.</p> <p>V. The plaintiff’s right of contribution against the estate of Horace Cowles, if any ever existed, is absolutely barred by failure to ¡exhibit it to the representative of that estate within four months after it accrued. Hence it must be barred as to the estate of Samuel S. Cowles. General Statutes, § 581; Cone v. Dunham, 59 Conn., 161; Cray’s Appeal from Probate, 61 id., 445.</p> <p>VI. There can be no judgment in this case, personal or otherwise, against the representative of Horace Cowles, or-against Mary C. Hardy. The remedy, if the plaintiffs have a right, is a judgment against the personal representative of Samuel S. Cowles only. Hawley v. Botsford, 27 Conn., 80; Bacon v. Thorpe, ibid., 251; Davis v. Weed, 44 id., 569; Davis v. Van Sands, 45 id., 600; Griswold v. Bigelow, 6 id., 258; Seymour v. Seymour, 22 id., 272; Pitkin v. Pitkin, 7 id., 306, 314.</p> <p>VII. There is a misjoinder of plaintiffs. The fact that the plaintiff Wadsworth voluntarily paid to the executors of William Gay one-half of the judgment, does not entitle him, together with William Gay or his representatives, to maintain an action against every joint party for contribution. If Wadsworth paid voluntarily any part of the money due from the estate of Samuel S. Cowles, he cannot recover it. He should have paid his share, but not the share of other persons liable to contribution. Graves v. Smith, 4 Tex. App., 537.</p> <p>I. The estate of Augustus Ward is not liable at all to a claim for contribution. Exchange Bank v. Gay, 57 Conn. 224. It must be evident, then, from the construction given by this court to this transaction, that the fundamental elements of the conditions of contribution are lacking in this case. The fundamental principles of contribution are familiar. The right to contribution is “ based on equality of burdens and benefits.” DeColyar on Guaranties, 339. This is the definition in the leading case of Beering v. Winchelsea, 2 B. & P. “It is enforceable if there is no circumstance rendering the equities between them otherwise than equal.” Bishop on Contracts, § 216. This underlying principle is recognized in all cases.</p> <p>Applying this principle to the case at bar, how can Mr. W ard’s estate be interested in a credit given to a corporation to enable it to carry on its business in which the estate has no interest at all? So far as the notes outstanding at the death of Mr. Ward have been paid, there can be no reasonable claim of equality of burdens and benefits between his estate, no longer a stockholder, and the members of the corporation. Nor can the claim be successfully made that there was equality in reference to the notes that were renewed. A renewal of a debt of a corporation for which a guarantor is liable is a payment, unless it is renewed by his consent.</p> <p>The limitation of time for presenting claims against Ward’s estate, of which Gay, Wadsworth, and the bank had express notice, is obligatory upon these parties, although technically the cause of action in the present case did not arise until the date of contribution. Aside from the immediate force of statutes of limitations, equity will allow the enforcement of no claim which has been marked by laches, and that without any regard to statutory limitations. Halstead v. G-rinnon, 152 U. S., 412, 416, and citations.</p> <p>The death of Mr. Ward terminated his responsibity under the contract. An essential element of this contract is the right of the guarantors at anj7 time to withdraw from its toils, as to indebtedness incurred subsequently to such withdrawal. Offord v. Davies, 12 C. B. N. S., 748; Jordan v. Dobbins, 122 Mass., 168; Ooulthart v. Olementson, L. R. 5 Q. B. Div., 46. The death of the guarantor acts per se as a discharge, and terminates his liability upon the contract for subsequent indebtedness. Ooulthart v. Olemenston, supra; Harriss v. Fawcett, L. R. 15 Eq. 311, L. R. 8 Ch., 866; Jordan v. Dobbins, supra-, Hyland v. Habich, 150 Mass., 112, 6 L. R. A., 383 ; In re Sherry, L. R. 25 Ch. Div., 705 ; Smith Merc. Law, 467; Williams on Executors, 1869 ; 9 Amer. & Eng. Ency. of Law, 83, 84: Bank v. Hunt, 16 R. I., 148 ; Bank v. Waterman, 30 111. App., 535. Notice to the bank of his death was notice of a discontinuance of his guaranty; and with the discontinuance of the guaranty, the giving of new credit by renewals discharged him from all obligation on account of such indebtedness. The well-established principle of law that indulgence to a principal, by extension of time or otherwise, releases the surety, is here applicable ; and even if the notes, whose payment was guaranteed, had remained in the bank as overdue paper, which does not appear to be the case, the Ward estate would have been entitled to their immediate collection against a then solvent corporation, and a fortiori is released by repeated renewals after Ward’s death and until that corporation becomes insolvent. DeColyar on Surety-ship, § 433; 9 Amer. & Eng. Ency. of Law, 83, 84, and citations; Adams v. Way, 32 Conn., 172.</p> <p>II. If Mr. Ward’s estate can be compelled to answer in this cause, it is only to the extent of one-thirtieth part of six-elevenths of the judgment for damages recovered by the bank; that is to say, one-thirtieth of six-elevenths of $11,520.82.</p> <p>That his estate cannot be compelled to contribute to costs and expenses in a suit of which he had no notice, is settled by the case of Chapin v. Smith, 52 Conn., 263-61.</p> <p>It is a familiar principle that, if it be arranged by contract that each surety shall be answerable only for a given portion of one sum of money, there is no right of contribution among the co-sureties beyond that amount. Pendlebury v. Walker, 4 Y. & C., 424, 441; North v. Brace, 30 Conn., 60; Peering v. Earl of Winchelsea, 2 B. & Pul., 270 ; 1 Leading Cases in Equity, H. & W., notes, 96, and cases cited; Craythorne v. Swinburne, 14 Vesey, 164; 1 Parsons on Contracts, 32; Burge on Suretyship. 385 ; Story, Equity Juris., § 498 ; Andrews v. Calender, 13 Pick., 484; DeColyar on Suretyship, 343, 344; Pomeroy’s Equity Juris., § 1418; Armitage v. Pulver, 37 N. Y. 494; Brandt on Suretyship, § 252.</p> <p>The case of Security Ins. Co. v. St. Paul Ins. Co., 50 Conn., 233, stands upon entirely different principles, because the facts are essentially different. The relations of the parties there were common. In this case there is no common relation between the plaintiffs and the defendant Ward.</p>

<p>The law is well settled that an assessment upon property specially benefited by a local improvement, is a tax.</p> <p>Unless imposed by'statute a tax carries no interest directly, nor indirectly by way of penalty for its non-payment.</p> <p>The city of New Haven had no power in 1873, either by charter or by public' statute, nor has it since had the power, to collect interest on an assess- • ment for special benefits on account of a local public improvement; notwithstanding an ordinance of the city, existing in 1873, provided for the payment of interest where liens for such assessment had been duly filed. Such assessment, although a tax, is not an ordinary tax within the meaning of that term as used in the provisions of the General Statutes (Revision of 1866, Title 64, Chap. 2), which authorized the collection of interest on unpaid taxes.</p> <p>Section 2704 of the General Statutes, passed in 1883, concerning municipal assessments of benefits for public improvement, provides that “ neither the principal of such assessment nor any interest thereon shall be collectible” until the work is completed and that fact recorded. Held that while this statute recognized by implication the right to collect interest in certain cases, it did not create such right, but rather lifnited and restrained it in the instances where it already had been conferred and still existed.</p>

<p>The Superior Court has the power, in proper cases, to issue a writ of mandamus to the Court of Common Pleas.</p> <p>A trial judge is under no legal obligation to make a finding of facts for the purpose of an appeal, when the defeated party has, by non-compliance with the orders and rules of court or by neglect and long continued delay, waived or lost his right to a finding; and the determination of that question is a matter within the jurisdiction of the trial judge, whose decision thereon cannot be reversed by writ of mandamus.</p> <p>A writ of mandamus is not issuable as a matter of strict right. If the relief sought is, in the opinion of the trial court, inequitable, the application should be denied.</p>

<p>When a Court of Probate approves of the executor named in a will, and commits to him the administration of his testator’s estate, such executor is entitled to the sole and exclusive administration of such estate. By such action the court has, for the time being and while that condition of things remains unchanged, exhausted its jurisdiction in respect to that subj ect, and cannot appoint an administrator with the will annexed.</p>

<p>An investment by a conservator of his ward’s funds in promissory notes secured by a mortgage of land in another State and guaranteed by a corporation, is not one recognized, either by statute or common law, as belonging to the class of investments generally appropriate for trust funds. To justify such use of the funds the conservator must prove not only good faith, but due diligence on his part in ascertaining by specific inquiries the pecuniary responsibility of the maker of the notes, the value of the land mortgaged to secure them, and the credit and responsibility of the corporation which guaranteed them. In the absence of personal knowledge on his part, it is not due diligence for him to accept and purchase the securities, upon the bald assertion of the broker who had them for sale, that they were perfectly safe.</p> <p>The general rule of equity which warns a trustee not to sell, without sufficient reason, a trust fund received by him and properly secured, applies with peculiar force to a conservator who receives the estate of his ward safely invested in securities expressly authorized by statute. If under such circumstances he makes a change of investment, without an order of the Court of Probate, he assumes, in an action on his bond, the burden of proving a reasonable cause for the change; and failing in such proof he may properly be held liable, irrespective of his good faith in the transaction.</p> <p>Damages in such case, where the ward has exercised his right of rejecting the unauthorized investment, should be the value of the securities at the time of the unlawful sale, together with the amount of dividends which they would have produced if no change had been made, less any interest on the rejected investment received and used for the benefit of the ward; interest will not be compounded when the conservator acted in good faith.</p> <p>Evidence that others in the neighborhood, of ordinary prudence and discretion in financial matters, about the same time, but not in the presence of the conservator, purchased some of the same securities as an investment for themselves, is irrelevant to show due diligence on the part of the conservator.</p>

<p>Under the provisions of the Street Railway Act of 1S93 (Chap. 169), the only “modifications” which the municipal authorities can lawfully make in the plan presented by the street railway company, are such as legitimately affect one or more of the particulars which the statute requires to be specified in the plan. No change can properly he deemed a modal one, which deprives the plan of its essential qualities, or which imposes conditions wholly foreign.</p> <p>Conditions which the municipal authorities have no power to impose, they cannot require a street railway company to accept and perform, as a condition of their approval of the plan presented.</p> <p>A street railway company authorized by the General Assembly to extend its tracks in certain streets of a city, may be required by the municipal authorities to pay annually to the city a just and reasonable compensation for the increased expense of maintaining and repairing such streets, occasioned hy the location and use of such tracks, the amount of which may in certain eases be measured by a fixed percentage of the company’s gross-receipts. But a dichas no right to exact payments which are based on the increased expense to the city occasioned by the operation of the company’s entire railway system, the greater portion of which is already in use, and which has been constructed in compliance with previous orders of the municipal authorities and upon conditions which it had formally accepted. If the payments demanded are computed upon the latter basis, a requirement that the company shall render annual reports of its gross receipts, cannot be justified.</p> <p>The exaction of reasonable compensation by the city is not an exercise of the taxing or licensing power, but rather an equitable method of enabling the municipality to protect itself from a loss which would otherwise ensue from the location of the railway tracks in its streets.</p> <p>Chapter 221 of the Public Acts of 1895, giving to the railroad commissioners the sole and exclusive jurisdiction in respect to fenders upon street railway cars, and repealing all inconsistent Acts, resolutions and bylaws, repealed § 23 of the revised charter of the city of New Britain which vested powers of a similar character in the municipal authorities.</p> <p>The city authorities may properly require a street railway company to agree, as one of the conditions of the city’s approval of its proposed extension, that its location upon a portion of one of the specified streets shall not be the occasion of the abandonment of its tracks already laid down upon another section of that street, and that the residents of that locality shall be given fair and suitable service with regular trips as often as once in twenty minutes.</p> <p>Under § 3 of the Act of 1893, neither the municipal authorities, nor a judge of the Superior Court on appeal, can permit the statutory width of the traveled portion of the highway to be curtailed by the railway location. The jurisdiction of such a judge to grant such permission, is confined to an original proceeding brought before him for that purpose.</p> <p>If the requirements demanded by the municipal authorities are within the range of “ modifications” authorized by the statute, the question whether they are in fact “ equitable ” or not, is one for the determination of the judge, whose decision is “final and conclusive upon the parties.”</p> <p>The State, by its legislative department, can grant the right to a street railway company to lay its tracks in the city streets and use the same for an electric railway, without the consent of the municipality. Whether it could confer such franchise without providing for adequate compensation to the municipality, and to the owners of the fee in the soil, quaere.</p> <p>The appellant, under the Act of 1895 (Chap. 283), appealed from the action of the municipal authorities upon its plan of street railway extension, to a judge of the Superior Court, who confirmed the doings of the city; thereupon the'appellant appealed to this court, where the appellee moved to erase the cause from the docket, on the ground that the Act of 1895 made the decision of such judge “ final and conclusive upon the parties.” Held:—</p> <p>1. That in view of the right of appeal expressly given by § 1137 of the General Statutes to a party aggrieved by any decision or ruling upon questions of law made by a judge in a matter within his jurisdiction, the Act of 1895 must be construed as making the order of the trial judge “final and conclusive” in respect to such matters only as the statute confided to his determination, and upon which the parties were duly heard; but that his action in matters not within his jurisdiction was coram nonjvdice, and properly reviewable on appeal.</p> <p>2. That the statutory power given the trial judge to make such orders as were by him deemed “ equitable in the premises,” did not confer unlimited jurisdiction. The extent of such jurisdiction and whether the orders made fall within it, are questions of law inherent in the judgment of the trial judge.</p> <p>Tobkance and Hamebseey, Js., dissenting.</p>

<p>A testator gave the residue of his estate to trustees, directing them to distribute it in specific proportions and in trust, to certain named corporations which were to apply the income to charitable purposes designated in the will. Among these bequests was one to the State, “ in trust, the income to be applied toward the maintenance of any institution for the V care and relief of idiots, imbeciles or feeble-minded persons.” A subsequent clause provided that if “ any of the trusts should not be accepted, the amount intended therefor shall be proportionately distributed in augmentation of such as may be accepted.” The State refused to accept the trust and the Court of Probate appointed a trustee in its place. Held, that as the intent to confer a direct benefit upon the State was apparent, and as no substitute trustee could possess the sovereign powers of the State in administering the trust, the gift must be regarded as one to the State, rather than one to the inmates of an institution such as the will described; and the refusal of the State to accept the trust left this portion of the residue to be distributed in augmentation of the other charitable trusts, as directed by the testator.</p>

<p>Although the object sought in the construction of wills is the intent of the testator, it is nevertheless the intent as expressed in the language used. If that is not ambiguous, either as to the nature of the estate intended to be devised, or as to the person intended as the devisee, no extrinsic evidence is admissible to show a different and unexpressed meaning or intention upon the part of the testator.</p> <p>A construction plainly required by the terms of a will, cannot be avoided because it leads to intestacy in whole or in part.</p> <p>A testatrix, by the fourth clause of her will, gave to A, whom together with B she named as executors, certain real estate, to hold “ to him and his heirs and assigns forevex-.” By the fifth clause she gave to A and B, and to the survivor of them, the rest and residue of her estate, “having full confidence that they will make sxxch use and disposition thereof ” as would accord with her wishes. B subsequently dying, the testatrix made a codicil giving the x-est and residue to A, “ having full confidence” etc., as above ; but in the event that A should not sux-vive hex, provided that “said rest and residue” should be divided among her lawful heirs according to the laws of this State. A died before the testatrix, and in a suit to construe the will it was held:—</p> <p>1. That the expression “ his heirs and assigns forever, ” following the devise to A in the fourth clause, did not, when x-ead in connection with the codicil, create a substitutional devise in A’s children on his death before the testatrix ; but was used merely as a limitation descriptive of the quality of the estate devised to A.</p> <p>2. That by A’s death before that of the testatrix, the gift to him lapsed and became intestate estate.</p> <p>3. That under the fifth or residuary clause, the legal heirs of the testatrix took per stirpes and not per capita.</p>

Action in the nature of trespass de bonis, brought originally before a justice of the peace, and thence by the defendant’s appeal to the Court of Common Pleas in Hartford County, where the case was tried to the jury, before Walsh, J., and verdict and judgment rendered for the defendant, from which the plaintiff appealed for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action upon the common counts to recover for goods sold and delivered, brought to the City Court of Hartford and tried to the court, Stanton, Acting Judge; facts found and judgment rendered for the plaintiff. At the time of the service of the writ, Timothy E. Steele, Esq., of Hartford, was factorized and cited in to disclose.

<p>Suit for an injunction to restrain the defendant from constructing and maintaining its street railway in the public highways, so as to parallel a certain steam railway, until it should have obtained from the Superior Court or a judge thereof, a finding that public convenience and necessity required such construction; brought to the Superior Court in New London County and reserved by that court, Prentice, J., upon the defendant’s demurrer to the complaint, for the advice of this court.</p> <p>The complaint, after reciting the incorporation of the defendant under a special charter granted by the legislature in 1889, proceeds as follows:—</p> <p>“2. The General Assembly of the State of Connecticut, at its January session, 1895, passed an Act amending the charter of said company, which amendment had been accepted by said company and a certificate of acceptance filed with the Secretary of State, and said amendment is as follows: ‘ Section 2. Said company is hereby authorized to lay down, construct, keep and maintain the tracks of said company with the necessary turnouts, switches and side tracks and run its ears over the same through the street known as the Norwich and New London turnpike road to such a point in a southerly direction in the town of Waterford and to such a point in a northerly direction in the town of Montville as may be determined by the selectmen of the respective towns. . . Section 4. Said company shall have the same right to lay down, construct, keep and maintain its tracks and necessary turnouts and to run its cars over the same in the town of Norwich as far northerly as the city line of the city of Norwich, with the approval of the selectmen of the town of Norwich, that The Norwich Street Railway Company now has; provided, said Norwich Street Railway Company shall release its said rights to said Montville Street Railway Company, and said release shall be recorded in the town of Norwich.’</p> <p>“ 3. The Norwich Street Railway Company at the time of the approval of said amendment to the charter of the Montville Street Railway Company had the right to lay down, construct and maintain its tracks and necessary turnouts and switches and to run its cars over the same from the said city line of said city in said public highway as far southerly as the boundary line between the town of Norwich and the town of Montville.</p> <p>“4. The said Norwich Street Railway Company has released all its rights to the said Montville Street Railway Company, which release has been recorded in the town records of the town of Norwich.”</p> <p>The complaint then alleged compliance with the provisions of the foregoing amendments, and the approval by the selectmen of the plans submitted, and continued as follows:—</p> <p>“ 11. Said street railway will parallel the said New London Northern Railroad Compaq's steam railway the whole distance between the city of Norwich and the city of New London at a distance therefrom varying from one quarter of a mile to a mile and one half.</p> <p>“ 12. The plaintiff Mary E. Skelly, is the owner of a tract of land on the easterly side of said public highway in the town of Norwich and the land covered by said public highway to the center line thereof, subject to the right of the public as a public highway, in which it is proposed by said Montville Street Railway Company to lay down, construct and maintain its tracks as aforesaid from the town of Norwich to and into the town of Montville, and to build a turnout in said street on land owned by her as aforesaid, to the great damage of said plaintiff and for which she has no adequate remedy at law.”</p> <p>The defendant demurred to the complaint, upon the ground that the amendments to its charter were passed and took effect after the passage of the Act of 1893, and that by virtue of such amendments the defendant had the right to construct its track from the city of Norwich to the town of New London in the highway mentioned in the complaint, without making any application to the Superior Court or a judge thereof, to ascertain whether public convenience and necessity required the construction of a street railway which would parallel a steam railway.</p> <p>At the request of the parties, the Superior Court reserved the questions of law arising upon'the pleadings, for the consideration and advice of this court.</p>

Actios: to recover damages for an injury to the plaintiffs’ horse and cart, alleged to have been caused by the negligence of the defendant at a highway crossing; brought to the Court of Common Pleas in Fairfield County, and heard in damages to the court, Curtis, J.; facts found and judgment rendered for the plaintiffs to recover nominal damages only, and appeal by the plaintiffs for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

<p>Section 3844 of the General Statutes provides that the estate of a deceased person, not distributed or finally disposed of by the Court of Probate; may be set for taxation in the name of such estate ; while § 3S45 directs that where one person is entitled to the ultimate enjoyment of land and another to its life use, the land shall be set in the list of the party in the immediate possession or use thereof, except when it is specially provided otherwise. Beld that real estate owned hy and in possession of a tenant hy the curtesy, should be listed in his name for taxation, even though at the time of the assessment the estate of his deceased wife was in process of settlement in the Court of Probate.</p> <p>It is the duty of a tenant by the curtesy to pay all taxes upon the real estate owned by him as such tenant, which are lawfully laid after the death of his wife and during his tenancy ; his interest only, can be taken or subjected to a lien therefor, and he alone is personally liable for such taxes.</p> <p>Under such circumstances, if the real estate is claimed to- have been improperly assessed or assessed in excess of its market value, the tenant by the curtesy alone is interested; and if the remainder-man unites with the life tenant in an appeal from the action of the board of relief, there is a misjoinder of parties which may be taken advantage of on demurrer.</p> <p>Section 888 of the General Statutes provides that no action shall be defeated by the misjoinder of parties, but that parties misjoined may be dropped by order of court at any stage of the cause, as it may deem the interests of justice to require. Held that while the statute gave this power to the court, it was ordinarily to be exercised only on the request of the party and upon proper amendment of the pleadings; that the court could not compel the plaintiffs to drop the party misjoined, amend the complaint and continue the case; and that if they neglected or refused to avail themselves of their right in this respect, the court was justified in dismissing the action as against them both.</p>

Suit for an injunction to restrain the defendant from removing bars and gates across a certain passway; brought to •the Superior Court in Tolland County and tried to the court, ■Shumway, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Criminal prosecution for a second violation by the defendants of the laws relating to the sale of spirituous and intoxicating liquors, brought to the Superior Court in Hartford County and tried to the jury before Prentice, J.; verdict and judgment of guilty, and appeal by the defendants for alleged errors in the rulings and charge of the court.

Information for arson, brought to the Superior Court in Hartford County and tried to the jury before Prentice, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of the court. The defendant was tried for the crime of arson at the June criminal term of the Superior Court in Hartford county, when the jury disagreed. He was again tried at the September criminal term, and was convicted. He then appealed to this court.

Action of replevin, brought to the Court of Common Pleas in Hartford County and tried to the court, Calhoun, J. facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion. The photographic lens was exempt from attachment and execution, as a tool of the debtor’s trade.

Suit to determine the validity and construction of certain clauses in the joint will of Emily Spencer, deceased, and Jane A. Spencer; brought to the Superior Court in Hartford County by the State Bank, as administrator with the will annexed, and reserved by that court, Ralph Wheeler, J., upon the facts found, for the advice of this court.

Application by the receiver of the Waddell-Entz Company for instructions as to his duty in respect to the payment of a dividend upon certain claims presented ; brought to the Superior Court in Fairfield County and reserved by that court, Elmer, J., upon a finding of facts, for the consideration and advice of this court.

Bastardy complaint, brought originally before a justice of the peace in the town of New Haven, by whom the defendant was bound over to the Court of Common Pleas for New Haven County, and tried to the jury, before Hotchkiss, J.; verdict of guilty and judgment for the plaintiff to recover the sum of $171.75, and appeal by the defendant for alleged errors in the rulings and charge of the court. The ease is sufficiently stated in the opinion.

Writ of error brought to the Supreme Court of Errors at its January Term, 1896, at New Haven, to review a judgment of the Superior Court (Ralph Wheeler, J.') rendered in favor of the defendant in error, upon his application to restore and establish, lost and uncertain bounds between the lands of the parties. The action in the Superior Court was brought under § 2975 of the General Statutes. A committee appointed by the court made a report fixing and establishing a lost bound.

Petition for a writ of habeas corpus, brought to the Superior Court at Waterbury in New Haven County, and tried by the court, Greorge W. Wheeler, J., upon the petitioner’s reply to the respondent’s… Held: and the said justice, and the said McClair and said Scott, each went about his usual business. “ 6.

, upon the petitioner’s demurrer to the return; the court sustained the demurrer and thereafter judgment was rendered for the petitioner, and the respondent appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion. The plaintiff, being a non-resident, should have entered into a recognizance to the defendant for costs. General Statutes, § 896. This proceeding is a civil action within the meaning of this section of the statute.

Petition for writ of habeas corpus, brought to the Court of Common Pleas in New Haven County and tried to the court, upon the respondent’s demurrer to the petitioner’s answer to the return ; the court, Hotchkiss, J., sustained the demurrer and rendered judgment for the respondent, and the petitioner appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action to recover damages for the conversion of a stock of merchandise, brought to the District Court of Waterhury and thence by the defendants’ appeal to the Superior Court in New Haven County, and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the defendants, and appeal by the’plaintiff for alleged errors in the rulings of the court.

Beers, deceased, and ordering distribution among them, and accepting the distribution made under said order, taken to the Superior Court in New Haven County and tried to the court, Sail, J.; facts found and judgment rendered for the appellees, and appeal by the appellant for alleged errors in the rulings of the court.

Suit to determine the validity and construction of the will of Charles Shelton, late of the city of New Haven, deceased; brought to the Superior Court in New Haven County and reserved by that court, Shumway, J., for the consideration and advice of this court. The case is sufficiently stated in the opinion.

<p>The defendants having failed to keep their agreement to purchase within a specified time $50,000 worth of goods manufactured by the plaintiff, the xrarties met to examine and adjust their accounts. At this interview the defendants presented an account which was not acceptable to the plaintiff and, in the absence of the latter’s books, a contract was signed whereby the plaintiff, in consideration of $2,400 in cash then paid to it by the defendants, and the latter’s promise to settle any errors that might thereafter be found to exist in two classes of items, released the defendants from all liability incurred by them under the fozmer contract, and ackzzowledged the “receipt of all claims and demands to date ” except those above referred to. Held that in view of this release the plaintiff could not recover damages for a violation of the earlier agreement, but was entitled to a judgment for the aggregate amount of the errors found by the trial court to exist in the two classes of items specified in and excepted from such release. (One judge dissenting.)</p> <p>The trial court erz-oneously included in the judgment damages for the defendants’ breach of the contract to purchase. Held that the judgznent, being for one ezitire sum, was not divisible or severable, azid must therefore be set aside in toto\ but that such reversal did not open up the cause beyond the exigencies of the case.</p>

, upon an agreed statement of facts, for the consideration and advice of this court. The case is sufficiently stated in the opinion. The Act of 1895 prohibits the casting or counting of any ballot contained in an envelope on which the initials only, of the envelope booth-tenders, have been indorsed; and this ballot law should be rigorously upheld. Tdlcott v. PhilbricTc, 59 Conn., 478; Fields v. Osborne, 60 id., 549; Phelan v. Walsh, 62 id., 292; 2 Amer. & Eng.

<p>Action to recover damages for two tranks alleged to have been delivered to the defendant as a common carrier and to have been lost through its negligence; brought to the Superior Court in New Haven County and tried to the Court, Sail, J., upon defendant’s demurrer to the plaintiffs’ reply; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiffs appealed for alleged errors in the rulings of the court.</p> <p>The complaint contained two counts. The first alleged (1) that the defendant was a common carrier between Albany and Springfield ; (2) that pursuant to a contract between it and the Delaware & Hudson River Railroad Co., a common carrier between Saratoga and Albany, and the New York, New Haven & Hartford Railroad Co., a common carrier between Springfield and New Haven, the defendant had long been in the habit of receiving baggage from the Delaware & Hudson River Railroad Co. at Albany, and. transporting it to Springfield, and there delivering it to the New York, New Haven & Hartford Railroad Co., whenever such baggage was so checked as to indicate that it was to be so carried and delivered; (3) that the defendant received at Albany, pursuant to said contracts, two trunks of the plaintiffs with checks, one marked “ New Haven and Saratoga— 1010 — via B. & A. & N. Y., N. H. & H.,” and the other marked in a similar manner, but with another number; which initials meant the Boston & Albany Railroad Co., and the New York, New Haven & Hartford Railroad Co., and indicated that said checks were issued pursuant to said contracts, as in fact they were, and that said trunks were to be transported to Springfield over the defendant’s railroad and delivered to the New York, New Haven & Hartford Railroad Co., to be thence transported by it to New Haven ; (4) that in consideration of the receipt of said trunks, and of said contracts, the defendant assumed control of them and engaged as such common carrier to transport them to Springfield, and there to deliver them to the New York, New Haven & Hartford Railroad Co.; and (5) that the defendant, by its gross negligence, suffered said trunks to be destroyed, and never delivered them to the New York, New Haven & Hartford Railroad Co., or the plaintiffs.</p> <p>The second count, after repeating (1) the first three paragraphs of the first count, added (2) that the defendant as such common carrier received two trunks of the plaintiffs from the Delaware & Hudson River Railroad Company, at Albany, with the direction from it that they were to be safely transported to Springfield, and there delivered to the New York, New Haven & Hartford Railroad Co. for further transportation to New Haven, said trunks being properly checked and marked for such destination, as the defendant well knew, and the defendant deposited them in one of its cars for such transportation over its railroad; (3) that the defendant made up a train containing said car and started it for Springfield, in order to reach which it had to pass over a certain bridge; (4) that said bridge was then, and had long been, being repaired by the defendant, and consequently was, and long had been, in a defective and unsafe condition, so that it could not sustain the weight and force of a train, and when this 'train reached it, was, by the gross negligence of the defendant, in that condition, and wholly deserted by the defendant and its agents and servants, so that there was no one there to warn the conductor or engineer of its condition, or to signal the train to stop, by reason whereof it went on the bridge at full speed, and the bridge broke down, carrying the car with it into a stream below, whereby the trunks and their contents were ruined.</p> <p>The answer set up that the plaintiffs bought tickets from Saratoga to New Haven over a route which was a rival to that of which the defendant’s railroad formed a part, and comprised a steamboat line on the Hudson River between Albany and New York ; that without paying any consideration therefor, they caused their trunks to be checked over the route of which the defendant’s railroad formed a part, to New Haven by way of Albany and Springfield, and received checks indicating that their trunks were to be so transported; that the trunks bearing said checks were delivered to the Delaware & Hudson Canal Co., at Saratoga, and were by it delivered at Albany to the defendant, to be transported to Springfield and there delivered to the New York, New Haven & Hartford Railroad Co., for transportation to New Haven; and the defendant received them, supposing from the checks that they belonged to passengers who had bought tickets over its railroad; that the only contract between it and the Delaware & Hudson Canal Co., was one providing for the transportation of passengers who had bought such tickets ; and that the plaintiffs had neither bought nor held any such tickets, nor did they become passengers on the defendant’s road, or enter into any contract with the defendant for the transportation of said trunks; and that the trunks were destroyed without any willfulness, malice or intentional wrong, or anything equivalent or amounting thereto, on the part of the defendant.</p> <p>The reply stated that, when the plaintiffs checked the trunks, they were informed by the person who had the checks in his possession, that they had the right, by virtue of their tickets, to have the trunks checked in this way, over the defendant’s railroad from Albany to Springfield; and they caused them to be so checked, supposing that he had the authority to make such statement and so to check said trunks, and relying upon and believing such statement ; and were guilty of no fraud or intentional wrong, but acted in good faith.</p> <p>The defendant filed a demurrer to the reply, which was sustained ; and the plaintiffs declining to amend their pleadings, judgment was rendered for the defendant, from which this appeal was prosecuted.</p> <p>The first of several connecting carriers, bound together by a through traffic agreement, is the agent of the others, and the others are bound by the acts of its employees, performed within the general scope of their authority. Hartan v. Pastern R. Co., 114 Mass., 44; Penn. R. Co. v. Swarzenburger, 45 Pa. St., 208. The road actually carrying the baggage at the time of injury is the principal, and is answerable in suit brought directly against it by the owner of the baggage. Harp v. Grand Fra, 1 Woods (U. S.), 184; Chicago & R. I. R. Co. v. Fahey, 52 111., 81; Packard v. Taylor, 35 Ark., 402; Oonkey v. Milwaukee St. P. R. Co., 31 Wis., 619; Halliday v. St. Louis, K. C. K. R. Co., 74 Mo., 159 ; Young v. Penn. R. Co., 115 Pa. St., 112; Penn. R. Co. v. Connell, 112 111., 292. It is immaterial that the Delaware & Hudson Canal Company had express authority to check the baggage of those only, who had purchased tickets. They and their employees were clothed with apparent power, and the defendant cannot expect the public to scrutinize their credentials. Gelvin v. Kansas City, St. J. f C. B. R. Co., 21 Mo. App., 273; Deeming v. Grand Trunk R. Co., 48 N. H., 455 ; Pruitt v. Hannibal & St. J. R. Co., 62 Mo., 527; Harrison v. Missouri Pac. R. Co., 74 Mo., 364; Lake Shore f Mich. So. R. Co. v. Foote, 104 Ind., 293; Jacobs v. Tutt, 33 Fed. Rep., 412; Hannibal & St. J. R. Co. v. Swift, 12 Wall., 262; Ouimit v. Henshaw, 35 Vt., 605; Smith v. Railroad, 27 N. H., 86. An authority to check baggage is to be inferred from the possession of checks. Hlinois Gen. R. Co. v. Copeland, 24 Ill., 332; Isaacson v. K. Y. C. & H. R. Co., 94 N. Y., 278, 285. The defendant is liable as a bailee by virtue of the receipt of the baggage. The liability of a bailee does not necessarily arise out of contract, but is often imposed by law. Schouler on Bailments and Carriers (2d Ed.), §§ 9, 28,668; Eolton v. R. R. Co., 15 N. Y., 444; note to Waterbury v. EY. C. & 3. R. Co., 17 Fed. Rep., 674; Smith v. R. R. Co., 27 N. H., 86; Rumsey y. E. E. Ry. Co., 14 C. B. N. S., 641; Wilson v. Grand Trunk R. Co., 56 Me., 160, 57 Me., 138; 'Graffam v. Boston ‡ Me. R. Co., 67 Me., 234; The Elvira Earbeck, 2 Blatch. (U. S.), 336; Elaherty v. Greenman, 7 Daly (N. Y.), 481; Lemon v. Chansler, 68 Mo., 340, 357; Skelley v. Kahn, 17 111., 170; Flint P. M. R. Co. v. Wier, 37 Mich., Ill; Gray v. Mo. Riv. Packet Co., 64 Mo., 47; McCauley y. Davidson, 10 Minn., 418. The liability of a carrier is imposed by law. It exists although there has been no payment of fare or agreement to pay fare. . Buffet v. Troy Boston R. Co., 40 N. Y., 168 ; Gordon v. Grand Street & Newtown R. Co., 40 Barb. (N. Y.), 546 ; Ross v. War Eagle, 14 Iowa, 363 ; Green v. Milwaukee Sp St. Paul R. Co., 41 Iowa, 410; Woods v. Devin, 13 111., 646. The defendant is liable for at least gross negligence, on the broad, general ground that it had the custody of the property. Schouler on Bailments and Carriers (2d Ed.), § 3; 4 Lawson’s Rights, Remedies and Practice, § 1695; Story on Bailments (9th Ed.), § 59; Phelps v. People, 72 N. Y., 334, 358; Eewhall v. Paige, 10 Gray (Mass.), 366; Wilson v. C. § O. R. R. Co., 21 Gratt. (Va.), 654, 664. The principle was applied in Fairfax v. Railroad, 73 N. Y., 167 ; Austin v. Railroad, L. R. 2 Q. B. 442. Some cases hold that there is liability for gross negligence, even if the owner of baggage has been guilty of fraud. Railroad v. Beggs, 85 Ill., 80; Collins v. Boston Me. R. Co., 10 Cush. (Mass.), 506. The case of Gardner v. N. H. & N. Co., 51 Conn., 143, is clearly distinguishable from the case at bar.</p> <p>The right of action in this case is governed by the law of the place where the accident occurred, viz, Massachusetts. Cooley on Torts, *471; Le Forest v. Tolman, 117 Mass., 109; Story, Confl. of Laws, § 307 d; Mostyn v. Fabrigas, 2 Sm, Lead. Cas. (9th Am. Ed.),964; Addison, Torts, 28, 29; Dennick v. R. R., 108 IT. S., 18; Dunlap y. Internat. Steamboat Co., 98 Mass., 371; Wright v. B. A. R. R., 142 id., 296; Planz v. R. R. Co, 167 id., 377. The mere fact that the man at Saratoga had checks in his possession, does not of itself constitute him the agent of the defendant even to check the baggage of its passengers ; a fortiori it would not make him its agent to check trunks for persons who neither were, nor intended to become, its passengers. Wharton on Evidence, § 1316; Best on Evidence, § 357; Short v. Lee, 2 J. & W., 464; Coon v. Gurley, 49 Ind., 199; First Nat. Bank v. Council Bluffs Water Co., 56 Hun, 412; Morgan v. Farrel, 58 Conn., 426. It does not appear that defendant misled the plaintiffs, or allowed them to be misled in any way. The good faith of the plaintiffs can only affect their remedy against the person who misled them. Talcott v. W. R. Co., 66 Hun, 462. Where no duty is owed there can be no negligence. Cooley on Torts, *660; Shearman & Redfield, Neglig., § 8, and cases; Nolan v. N Y., N. H. $ 3. R. Co., 53 Conn., 461; Farrell v. W 3. R. Co., 60 id., 246 ; O'Neill v. Fast Windsor, 63 id., 153. There is no special force in the allegation of “ gross ” negligence. Railroad Co. v. Lockwood, 17 Wall., 357; Waterbury v. N. Y. C. $ 3. R. R. Co., 17 Fed. Rep. 675, note. In the absence of any duty created by a contractual relation with the plaintiff, the defendant owed only the absolute duty which binds every man to refrain from willful and wanton injury to the property of another. Dunlap v. Internat. Steamboat Co., supra; Wright v. B. f A. R. Co., supra; Planz v. R. R. Co., supra ; Gardner v. Railroad, 51 Conn., 143; Austin’s Juris., 194; T. W. f W. R. R. v. Beggs, 85 111., 80; Lawson on Contracts, § 229; Becherv. G. F. R. Co., 5 Q. B., 241; Fair-fax v. R. R., 5 J. & S. (N. Y.), 516; Talcott v. W. R. Co., supra; Blumenthal v. M. O. R., 79 Me., 550 ; Belfast R. Co. v. Keyes, 9 H. L. Cases, 573. When a person is deceived into taking a thing into his possession, no contract of bailment can arise unless he so elects after knowing the truth. Story on Bailments, §§ 59,155, 372, 381; Lloyd v. W. B. Ins. Bank, 15 Pa. St. 172; Amos, Roman Civil Law, pp. 197, 199, 216. The compensation for carrying baggage, as baggage, is included in the price paid for the ticket by the passenger. Smith v. R. R., 44 N. H., 332, and cases; 3 Wood on Railroads, §§ 400, 403; Hannibal R. R. v. Swift, 12 Wall., 262, 274. It follows that if there is no contract to carry a passenger, there can be no contract to carry his baggage as baggage.</p>

<p>The plaintiff’s horse and carriage were injured during the night, by reason of the failure of the defendants to guard or light certain excavations made in the street by the defendant railway company in the construction of its tracks. The work was beiug done with the knowledge and approval of the selectmen of the defendant town and under their supervision, and one of the excavations which caused the accident was upon that part of the street which was then used and open to public travel. The driver knew that this work was going on and drove sjowly and with due care. There were two other highways safe and equally convenient to his destination, but it did not appear that he was familiar with these streets. The horse and carriage went into the excavations, and in consequence the horse became frightened and unmanageable and ran away, colliding with a hitching post from 1000 to 1500 feet away, where he freed himself from the carriage and continued his flight over fences and through the fields. There was no evidence showing specific injury to the horse or carriage before the collision with the post, and the statutory notice given the plaintiff, described the excavations and piles of earth and stones alongside the tracks, as the place and cause of the injury. In a suit against the street railway company and the town to recover damages for the injury, it was held: —</p> <p>1. That under the circumstances, the question whether the driver was guilty of contributory negligence in not taking one of the other safe and convenient streets leading to his destination, was one of fact for the determination of the trial court, and not subject to review on appeal.</p> <p>2. That inasmuch as it fairly appeared from the finding that both of the excavations which caused the runaway were made in the work of construction authorized by and carried on under the supervision of the selectmen, the town could not escape liability on the ground that it had no express notice of the defective condition of the highway.</p> <p>3. That it was clearly the duty of the town to guard against danger from the excavation in the traveled portion of the highway outside the railway location; and that under Chap. 169 of the Public Acts of 1893, it was the duty of the town, as well as that of the street railway company, to take reasonable precautions to warn travelers against dangers arising from an excavation within the railway lines. ;</p> <p>4. That the proximate cause of the injury was the existence of the two unguarded holes in the highway, and that the injury was received at the place where this cause operated to produce the runaway ; and the statutory notice of the injury was consequently sufficient in describing the “place of its occurrence.”</p> <p>It is not essential in all cases that there should be concert of action between two defendants in causing an injury, or a violation of some common duty resting upon them, in order to render them liable as joint wrong-doers. If the negligence of each in part directly caused the injury, both may be sued and held responsible.</p>

Action to recover damages for the wrongful refusal of the defendant to turn over to the plaintiff a certain sum of money alleged to belong to the estate of the plaintiff’s intestate; brought to the Superior Court in Hartford County and tried to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. The case is suffciently stated in the opinion.

Action to recover damages for personal injuries sustained through the alleged negligence of the defendant, brought to the Superior Court in Hartford County and heard in damages to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff to recover $1,200 damages, and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Suit praying that a conveyance of certain real estate made by the plaintiff’s intestate to the defendants might be adjudged void and set aside, and for other equitable relief; brought to the Superior Court in Hartford County and tried to the court, Thayer, J., upon the defendants’ demurrer to the complaint; the court sustained the demurrer in part and rendered judgment for the defendants, and the plaintiff appealed for alleged errors in the rulings of the court.

<p>The certificate of a public officer under his official seal, as to the contents of a record in his custody, is not admissible as a copy of such record, or of the fact therein recited; even if such certificate is duly sworn to and otherwise properly authenticated.</p> <p>The official registry lists of electors and the original checklists used in the elections, are competent evidence tending to prove the domicil of a person whose name appears thereon, and, if his name is checked on the latter lists, of the fact that he voted on such occasions. The case of New Milford v. Sherman, 21 Conn., 101, in so far as it is inconsistent with this doctrine, is overruled.</p> <p>In determining whether ancient documents offered as and purporting to be original official records, are in fact such, their general appearance, the place where they were found and the length of time during which they were known to have been there, are all matters entitled to weight. The omission of the proper attestation may render it less easy to identify such documents, but does not destroy their character as records, when shown to be such by other proof.</p> <p>The facts upon which the judgment of a trial court is founded cannot be retried in this court on appeal; and therefore the refusal of the trial court to certify, as part of the record, the evidence bearing on claims of fact which the finding states were not proven, and upon which certain questions of law, as alleged in the reasons of appeal, are predicated, is not ground for a new trial. {Two judges dissenting.)</p>

Action to recover damages for personal injury caused by the defendant’s negligence; brought to the City Court of Hartford, and tried to the court, McManus, J.; facts found and judgment rendered for the plaintiff for $3,800 damages, and appeal by the defendant, mainly for alleged errors of fact upon the part of the trial judge. The case is sufficiently stated in the opinion.

<p>In the absence of fraud the interpretation and legal effect of written instruments expressed in clear, unambiguous terms, is a question of law for the court, not one of fact for the jury. Such interpretation is none the less a question of law because it may be aided by the use of intrinsic evidence showing the circumstances under which the instruments were written, and the practical construction placed thereon by the conduct and acts of the parties.</p> <p>The plaintiffs, who had previously bought goods of the defendants, sent them fourteen separate orders for goods of their manufacture, each one specifying the quality and price of the garments ordered, the date on which they were to be delivered, and the time of payment. The defendants replied acknowledging and describing the orders received, expressed their thanks therefor, and subsequently delivered a portion of the garments to the plaintiffs, but thereafter declined and refused to manufacture and deliver the balance ; and for this breach the plaintiffs sued them for damages. Upon the trial the defendants claimed that their letter did not constitute an acceptance of the orders, or at all events was an acceptance of some one only of the fourteen; that each order constituted a separate contract, and that the plaintiffs could recover only on one of the fourteen orders. Held that the trial court erred in not instructing the jury, as matter of law, that the defendants’ letter constituted an acceptance of all the orders named in it.</p> <p>For a breach of the vendor’s agreement to deliver goods, the general rule is that the vendee is entitled to recover as damages the difference, at the time and place of delivery, between the contract price and the market price, if the latter exceeds the former. If there is no market where the vendee could have supplied himself with like goods, he is entitled to yecover the actual damages which he has suffered.</p> <p>If, by reason of special circumstances alleged in the complaint, larger damages are claimed by the vendee, either for profits prevented or losses sustained, they must ordinarily be confined to such as result from circumstances which may reasonably be supposed to have been in the contemplation of the parties when they made the contract. If at that time the vendor knew that the vendee had already contracted to sell a portion of the goods to others at a profit, the damages recoverable may fairly include such profits. If he knew that the vendee had ordered the goods to sell them thereafter at a profit, he is chargeable with knowledge of such profits as the market price, at the time of delivery, would have brought the vendee ; and evidence of sales made by the vendee is admissible as tending to prove such market price. Under such circumstances the vendor is also liable for such damages as the vendee may have sustained by reason of the latter’s inability to deliver the goods pursuant to his contracts of sub-sales ; and the vendee in entitled to prove such damages.</p> <p>Whether the circumstance from which the loss results or the gain is prevented, is or is not one which may be reasonably considered to have been in the contemplation of the parties at the time they made the contract, is, from the necessities of the case, a preliminary question for the decision of the trial judge, before evidence of losses suffered or gains prevented can be laid before the jury. If, however, the evidence is admitted, the jury should be instructed to disregard it if they reach a different conclusion upon the preliminary question.</p> <p>One of the plaintiffs’ traveling salesmen, sent out to sell by sample some of the goods which the defendants had contracted to make, was called to prove the sub-sales, and, among other questions, was asked if he knew by whom the goods were to he manufactured, and replied that he did through the plaintiffs’ buyer. On objection this question and answer were excluded. Held that as the purpose of the inquiry was to show what the witness was to represent to the plaintiffs’ customers as to the manufacture of the goods, the question and answer should have been admitted.</p> <p>The plaintiffs’ buyer was asked, respecting certain of the goods ordered of the defendants, at what price they would have been sold at retail. On objection the court excluded the question. Held that assuming the witness had knowledge of the market price at which such goods would have been sold, the question was proper and his answer would have been relevant.</p>

<p>The plaintiff, a riparian and mill proprietor, alleged that the defendant, without making him any compensation or attempting to acquire any of his rights, was discharging and threatened to continue to discharge in still greater quantity, waste matter, sewage, and other noxious, corrupt and impure substances from its sewers into the stream, so as to pollute it and seriously damage his land and mill privilege ; that such discharge poisoned and corrupted the air of the neighborhood and endangered the health of the plaintiff, his workmen and others, and had already partly filled his dam with filth and prevented him from disposing of his land for building purposes ; and prayed for an injunction against the continuance of the nuisance and to restrain the pollution of the waters of the stream. The trial court found these allegations to be true, that the plaintiff’s injuries could not be adequately compensated in damages, and that the acts complained of constituted a public nuisance, and granted an injunction restraining the defendant, after twenty months from the date of the decree, from discharging any sewage into the stream above the plaintiff’s premises, and from polluting the waters by any such discharge. Meld :—</p> <p>1. That the terms of the injunction decree did not go beyond the prayer for relief, but were fully conformable to the claims stated in the complaint.</p> <p>2. That the term “ sewage ” in the restraining order, must be construed in the sense in which it was evidently used by the parties in their pleadings; and that so construed it signified and was confined to the refuse and foul matter, solid or liquid, which was discharged by the sewers into the stream; including such fluid portions as, if apparently innoxious when so discharged, might become by combination with other substances found in the stream, the occasion of decomposition and consequent pollution.</p> <p>3. That the right to deposit a thing in any place must always be dependent not only on the nature of the thing deposited, but on the nature of the place in question and the uses to which that has already been put; and that if the stream was, from whatever cause, in such a condition that the defendant’s discharge of sewage there worked a nuisance, it had no right to use the stream for such purpose.</p> <p>The defendant claimed that the clause of the injunction decree which forbid the discharge of any solid matter which, though not foul and noxious, might be a source of deposit of filth in the plaintiff’s mill-pond, was too harsh a remedy, since it might result in throwing a very heavy pecuniary burden upon the city, while on the other hand money damages would adequately compensate the plaintiff for such injury. Held that the finding that the plaintiff’s injuries were, and would be, such as could not be so compensated, was a sufficient answer to that objection; especially as the city had the power, by the exercise of the right of eminent domain given it by the legislature for such purpose, to use the stream as it pleased.</p>

<p>An allegation in a complaint upon a joint and several bond that “the defendants bound themselves by a writing under seal,” implies a delivery upon the part of each defendant, and is a sufficient averment thereof.</p> <p>In an action upon a joint and several liquor license bond alleged to have been given by the defendant as surety and one H as principal, the. defendant, without denying the allegations of the complaint, pleaded as a special defense that the bond was never executed by H nor by any one having authority to sign for him. Held that inasmuch as this defense was consistent with a knowledge upon the part of the defendant at the time he executed and delivered the bond as his own obligation, that H had not signed as principal, and that Hs name had been signed without authority, it constituted no defense to the defendant upon his separate liability, and was therefore properly adjudged insufficient upon demurrer.</p> <p>As a second special defense the defendant alleged that he had been requested by one B to sign his license bond, and did not notice at the time who was named as principal in the bond, or whose name B (who in fact signed H’s name in the defendant’s presence) had subscribed as principal, but believed that he was signing as surety the bond of B. Held that as it was not alleged that the defendant was unable to read or in any way misled or prevented from ascertaining the exact and entire truth about the instrument he signed, his failure to learn the truth must be regarded as the result of his own culpable negligence, so far as the plaintiff, who had no notice or knowledge of these facts, was concerned; and that a demurrer upon these grounds was properly sustained.</p>

<p>In an action of libel where publication is admitted and justification is not pleaded, malice is the only issue of fact, and the question of privileged communication is included in that issue; although, since the adoption of the Practice Act, notice in the answer that the claim of privileged communication will be made, may be the better practice.</p> <p>A privileged communication is inconsistent with the existence of malice, and requires both an occasion of privilege and the use of that occasion in good faith.</p> <p>An occasion of privilege exists, if the admitted circumstances under which an alleged libel is published are such that the law recognizes a duty on the part of the defendant to make the communication; and this is a question of law for the court. Such occasion, however, is not used in good faith, if the communication is actuated by malice, and is not made for the purpose of performing that duty, but to injure the defendant; and this is a question of fact for the jury. In every case where there is substantial evidence of malice, the question of malice, including tliat of privileged communication, is, under the instructions of the court, one of fact for the jury.</p> <p>The burden of proof of malice is on the plaintiff and is discharged by proof of publication, unless the occasion is one of privilege; and in that case the plaintiff must satisfy the jury of malice in fact by a preponderance of evidence.</p> <p>Unless the truth of the defamatory charge is pleaded in justification, the defendant cannot prove its truth, either in bar or in mitigation of damages. This rule has not been changed by the Practice Act, and does not prevent the reception of proper evidence of good faith and honest belief in the truth of the charge, although such evidence may also tend to prove the truth of the publication.</p> <p>The defendant published in its newspaper an article charging the plaintiff, a member of the local board of public works, with illegal and disgraceful conduct in using his official position for his own pecuniary profit, and shielding himself from investigation and removal by means of a corrupt understanding with a majority of the board and certain aider-men of the city. Thereupon the plaintiff sued the defendant for libel. The defendant then published three other articles in its paper of a similar nature, the first of which impugned the plaintiff’s private character, ridiculed him for instituting a vexatious libel suit, and attempted to prejudice the case with the public. The plaintiff subsequently filed three additional counts based upon these articles. Held:—</p> <p>1. That the article first published charging the plaintiff with illegal and disgraceful conduct as a member of the board of public works, etc., was defamatory on its face.</p> <p>2. That the article specified in the second count, published on the commencement by the plaintiff of an action of libel against the defendant, and charging the plaintiff with instituting a vexatious proceeding and attempting to prejudice the minds of the public against him as plaintiff in that cause, was not published on a privileged occasion.</p> <p>3. That the articles specified in the third and fourth counts, giving information in respect to the official conduct of the plaintiff, with comments on that conduct, were published on a privileged occasion; but did not constitute privileged communications, because the trial court found upon the evidence that the fact of malice was established, and that the occasion of privilege was used for the purpose of malicious injury to the plaintiff.</p> <p>4. That it was not material, after judgment, whether the fact of malice was supported by the evidence in chief of the plaintiff, or depended upon evidence subsequently introduced; as no such question had been raised during the trial.</p> <p>5. That inasmuch as the record showed there was proper evidence of malice other than that furnished by the publications themselves, the conclusion of the trial court, upon all the evidence, that malice was proven, was one which could not be reviewed by this court.</p> <p>6. That it was not necessary to support the judgment, that the trial court should find from the evidence that the libel was in fact false; since that fact was not in issue either by a plea of justification by the defendant, or claim by the plaintiff that malice should be inferred from the falsity of the charge; and could not be put in issue merely by the defendant’s claim that the communication was privileged.</p> <p>As sources of information and as tending to prove its good faith, the defendant offered in evidence certain articles from another city newspaper. The court admitted such of the articles as the evidence showed had been brought to the attention of the writer of the alleged libel prior to its publication, but excluded the others. Held that the defendant was not injured by this ruling.</p> <p>As relevant to the question of malice, the plaintiff was permitted to introduce evidence that prior to the publication of the alleged libel the firm of which he was the head, and by his direction, had withdrawn its advertising patronage from the defendant. It also appeared that such withdrawal was known to the defendant’s editor-in-chief when he wrote the article complained of. Held that the evidence was properly admitted.</p> <p>A general objection to the admission of a deposition is insufficient if parts of it are admissible; the objection should be specific.</p> <p>The plaintiff introduced the city Year Book, showing that members of other city boards on whom no adverse comment was made, had furnished supplies to the city in much larger quantities and under similar conditions. Held that under the circumstances detailed in the finding, the admission of such evidence was not erroneous.</p> <p>In so far as the Act of 1S93 requires the Supreme Court of Errors to retry and determine the special facts upon which the judgment of the trial court depends, it is inconsistent with constitutional provisions and inoperative.</p> <p>While the omission of the trial court to note on the margin of each paragraph of the request for a finding, whether the same was .“proven” or “not proven,” may be corrected on the appeal, in no case can such omission he ground for the reversal of the judgment.</p>

Shit to foreclose certain tax liens, brought to the Court of Common Pleas in Hartford County, and reserved by that court, Calhoun, J., upon the defendant’s demurrer to the complaint, for the consideration and advice of this court. The case is sufficiently stated in the opinion. The validity of the certificates is the first thing to be considered.

<p>Section 2674 of the General Statutes provides in substance, that if the county commissioners, after due notice and hearing, shall find that a town has neglected to keep any public road within its limits in good and sufficient repair, they shall order the selectmen to cause such, road to be repaired.</p> <p>In a hearing under this statute in the Superior Court, upon an appeal from the action of the commissioners, the plaintiffs, without objection, introduced evidence to show that the part of the highway of which they complained was in a worse condition than any of the other highways of the town. To rebut this the defendant was permitted, against . objection, to give evidence of the condition of those other highways. 3eld that if the plaintiffs’ evidence was irrelevant, as they now claimed, the evidence of the defendant must be regarded simply as neutralizing that, and therefore as not legally injurious to the plaintiffs; but that it could not be said, as a matter of law, that the plaintiffs’ evidence was irrelevant-, as the question of sufficient repair and neglect was a relative one, the solution of which might be aided by comparing the condition of the road in question with that of others similarly situated.</p> <p>The question whether the highway is in “ good and sufficient repair ” must ordinarily be one of fact and not of law, and is not reviewable in this court.</p> <p>Whether a town, under this section of the General Statutes, can be compelled to macadamize a road, qxmre. The Superior Court was of the opinion that the county commissioners might require this in a proper case, if it was the only practicable method of accomplishing the object sought. Meld that this view of the law was one of which the plaintiffs certainly could not complain.</p>

<p>A landowner who seeks to restrain an adjoining proprietor from interfering with a tree and well upon the boundary line, is not entitled to an injunction, or to any special consideration, merely because he offered to pay such sum for the adjoining premises as might be fixed by the appraisal of persons to be selected by the respective owners.</p> <p>The adjoining proprietor intended to remove only so much of the tree as might be necessary in order to build his house up to the dividing line. Held that inasmuch as it appeared from the finding that the granting of the injunction would work a greater irreparable injury to such proprietor than the necessary cutting and consequent destruction of the tree would cause the plaintiff, the injunction was properly refused.</p>

<p>PuoSEOTJTlObr for violation of an ordinance of the city of Bridgeport relating to the sale of milk without a license, brought to the City Court of Bridgeport and thence by the defendant’s appeal to the Criminal Court of Common Pleas for Fairfield County and tried to the court, Walsh, J., upon the defendant’s demurrer to the information; the court overruled the demurrer and, upon the refusal of the accused to answer over, having found him guilty, imposed a fine of $50, from which judgment the defendant appealed to this court for alleged errors of the trial court-in overruling his demurrer.</p> <p>The ordinance was as follows: “An Ordinance to Prohibit the Sale of Adulterated or Impure Milk in the City of Bridgeport.</p> <p>“ Be it ordained by the Common Council of the City of Bridgeport: Section 1. Any person who by himself, his servant or his agent, shall sell, exchange, or deliver or have in his possession, with intent to sell, exchange or deliver, or expose or offer for sale as pure milk, any milk from which the cream or any part thereof has been removed, or which has been watered, adulterated or changed in any respect by the addition of water or other substance, shall be liable to the penalties hereinafter provided in this ordinance.</p> <p>“ Section 2. Any person who by himself, his servant, or his agent, shall sell, exchange or deliver, any milk from which the cream or any part thereof has been removed, unless, in a conspicuous place above the center upon the outside of every vessel, can or package containing such milk, the words ‘Skimmed Milk’ are distinctly marked in Gothic letters, not less than one inch in length, shall be liable to the penalties hereinafter provided in this ordinance.</p> <p>“Section 3. Any person who by himself, his servant, or his agent, shall sell, exchange or deliver, any skimmed milk containing less than eight and fifty one hundredths (8.50) per cent, of the milk solids, exclusive of butter fat, shall be liable to the penalties hereinafter provided in this ordinance.</p> <p>“ Section 4. Any person who by himself, his servant or his agent, shall sell or offer for sale, or who shall have in his possession, with intent to sell or offer for sale, any impure or adulterated or unwholesome milk, and every person who shall adulterate milk, or who shall keep cows for the production of milk, in a crowded or unhealthy condition, or feed the same on food that produces impure, diseased or unwholesome milk, or shall feed cows on distillery waste, usually called “ swill,” or upon any substance in the state of putrefaction or rottenness, or upon any substance of an unwholesome nature, shall be liable to the penalties provided in this ordinance.</p> <p>“ Section 5. The addition of water or any other substance or thing is hereby declared an adulteration, and milk that is obtained from animals that are fed on distillery waste, or upon any substance in a state of putrefaction or rottenness, or upon any substance of an unwholesome nature, or milk that has been exposed to or contaminated by the emanations, discharges or exhalations from persons sick with any contagious disease by which the health or life of any person may be endangered, or milk from tubercular cows, is hereb3r declared to be impure, unwholesome and adulterated.</p> <p>“ Section 6. In all prosecutions under this ordinance, any milk which shall be found, upon analysis by the chemist employed by the Board of Health, to contain more than 88 per cent, of water fluids, or to contain less than 12 per cent, of milk solids, or to contain less than eight and fifty one hundredths per cent, of milk solids, exclusive of butter fat, except during the months of May and June, when it must not contain less than 12 per cent, of milk solids, shall be deemed to be adulterated.</p> <p>“Section 7. It shall be lawful for the Board of Health or any member thereof, or the health officer, the board’s agents, assistants or inspectors, to enter any premises or vehicle of any person who shall carry, keep, expose, or offer milk for sale, to inspect said milk and the premises from which said milk is derived, and if, upon inspection, he shall find any milk which has been adulterated, or from which the cream or any part thereof has been removed, or which is sold, offered or exposed for sale, or held in possession with intent to sell or offer for sale, in violation of any section of this ordinance, said health officer, agent, assistant or inspector, is empowered and directed to take samples of the same for analysis, and also to condemn the same as adulterated and impure.</p> <p>“Section 8. No person shall expose or offer for sale any milk of any kind, unless he shall first obtain from the health officer a license therefor, for which the sum -of two ($2) dollars shall be charged for the period of one year for each and every license. The license shall specify the time for which the same is issued, and the name of the licensee, the number of each license, which license number shall be placed on the outer side of all wagons or vehicles used in the conveyance and sale of milk, the figures to be not less than two (2) inches in height.</p> <p>“ Section 9. Any person who shall violate any of the foregoing sections of this ordinance shall forfeit and pay a penalty of fifty ($50) dollars for the first offense, and one hundred ($100) dollars for each subsequent offense. Upon conviction of a second offense, the license of such offender shall thereupon be revoked, in addition to the penalties hereinafter provided.</p> <p>“ Section 10. It shall be the dutjr of the health officer to keep a complete record of his proceedings and of all inspections, giving a full account of all inspections, including the names of each person, producer, firm or corporation owning the milk inspected, together with the farm or farmer from which milk is received, place of business, number of cows, and their breed, and the result of such analysis to be printed in the city papers willing to publish the same, with names of producers and dealers from whom milk has been received, showing to what extent the samples may appear to be adnlterated or otherwise altered or deficient within the meaning of this ordinance.</p> <p>“ Section 11. All ordinances or parts of ordinances inconsistent herewith are hereby repealed.”</p> <p>It will hardly be claimed that the ordinance in question is expressly authorized by the city charter. If sustainable at all it must be by virtue of the general provisions of that instrument relating to the health of the community, or derived from the charter as an implied police power necessary to give effect to some express provision therein. The authority however to enact a penal by-law, is one not to be inferred from language in any respect ambiguous or doubtful. Dillon’s Munic. Corp., §§ 89-91; Beach Pub. Corp., 77; Leonard, v. Canton, 35 Miss., 189; Minturn v. Larne, 23 How., 437; Burritt v. City, 42 Conn., 202; Pratt v. Litchfield, 62 id., 118; Wallingford v. Hall, 64 id., 431; Thompson v. Lee Co., 3 Wall., 320 ; Sedg., Stat. and Const. Law, 423; City v. Whitney, 36 Conn., 373. The legislature having in its wisdom decided what occupations should thus be burdened, the city of Bridgeport cannot enlarge the scope of its licensing power, by resorting to the general welfare clauses of its charter. Robinson v. Mayor, 34 Am. Dec., 629; City of St. Louis v. Laughlin, 49 Mo., 559; City of St. Joseph v. Porter, 29 Mo. App., 609; State v. Ferguson, 33 N. H., 425; Huesing v. City of Rode Island, 128 111., 469 ; Thomas v. Ry. Co., 101 U. S., 82; City v. Hughes, 15 Mich., 59; Leonard v. City, 35 Miss., 189; City v. Seroggs, 39 Iowa, 447; Buttler's Appeal, 73 Pa. St., 452; Ordinary v. Retailers, 42 Ga., 326 ; Tuck v. Waldron, 31 Ark., 465; Harris v. Council, 28 Ala., 577; City of Cairo v. Bross, 101 Ill., 477. And it is not sufficient that it is simply convenient to exercise the expressly granted power, it must be indispensable. New London v. Brainard, 22 Conn., 551; 2 Dillon Munic. Corp., 173. This ordinance, in all of its essential provisions, is in contravention of the laws of the State, and therefore invalid. By the provisions of Chap. 235 of the Public Acts of 1895, which Act went into effect subsequent to the charter of the city of Bridgeport, it was determined that the standard of purity of all food products (the term “'food ” including “milk ”) should be fixed by the Connecticut Agricultural Experimental Station, when not fixed by statute. The ordinance in question attempts to fix another and quite different standard; one that the legislature of 1895 repudiated as impracticable and unjust. (See Pub. Acts 1895, Chap. 245, repealed by Pub. Acts 1895, Chap. 320.) In fact, the doctrine that a statute and an ordinance covering precisely the same subject, may be in operation concurrently, has been repudiated in this State. Southport v. Ogden, 23 Conn., 131; State v. Welch, 36 id., 217; State v. Brady, 41 id., 590. The ordinance is also vicious because under the guise of a sanitary measure, it seeks to wrest a revenue from those who bring this farm product into the city for sale. Grumm v. Mayor, 84 Ga., 365 ; Commonwealth v. Stodder, 2 Cush., 573. If the ordinance operates in restraint of legitimate trade, it is void. Chaddock v. Day, 4 L. R. A. 809. If the penalty is oppressive and unreasonable, the ordinance is rendered thereby invalid. 1 Dillon Munic. Corp., §§ 319, 320, 327, 321; Cooley, Const. Lim., 243.</p> <p>The license fee is required as a measure to pay for the expenses of inspection. Amesbury v. Bowditch Mutual Fire Ins. Co., 6 Gray, 596; State v. Wheeler, 25 Conn., 290 ; 1 Dillon Mun. Cor. (4th Ed.), § 421. The courts will not interfere with the legitimate exercise by municipal bodies of their police powers by which the peace, health, comfort, and general welfare are secured or promoted. Weil v. Ricard, 24 N. J. Eq., 169; Boehm v. Baltimore, 61 Md., 259; Littlefield v. State, 42 Neb., 223. Where a business is beneficial or necessary, but yet liable to cause danger, under certain conditions, to the public health, it can be regulated and those engaged in it can be required to take out licenses and to submit to an inspection of their business. This is far differ’ ent from an attempt to prohibit such beneficial or necessary business. Train v. Boston Disinfecting Co., 144 Mass., 528. A distinction is to be carefully observed between an ordinance like the one in question and ordinances which, under the guise of a license, in effect impose a tax. Such latter are void as attempted assumptions of legislative powers of taxation. North Hudson Railway Co. v. Hoboken, 41 N. J. Law, 71; Mayer v. Avenue R. R. Co., 82 N. Y., 261; 2 Dillon on Munic. Corp. (4th Ed.), § 768; State v. Osborne, (Fla.) 25 L. R. A. 120. Statutes and ordinances to secure the purity of milk have been uniformly upheld as beneficial and necessary. People ex rel. v. Mulholland, 82 1ST. Y., 326; Johnson v. Simonton, 43 Cal., 242; Little-field v. State, 42 Neb., 223; State v. Lowrey, (N. J.) 6 Central Rep., 870; People v. West, 106 N. Y., 293; Com. v. Evans, 132 Mass., 11; State v. Campbell, 64 N. H., 402; Shivers v. Newton, 45 N. J. Law, 469; State v. Smyth, 14 R. I., 100; State v. Sehlemmer, 10 L. R. A., 135, and notes; State v. Moore, (N. C.) 22 L. R. A., 474, and notes. The general provision of the charter conferring power to pass bylaws, “ relative to any and all other subjects that shall be deemed necessary and proper for the protection of the health, property and lives of the citizens,” contains the authority to pass by-laws relative to the sale of milk and require licenses therefor. 1 Dill. Mun. Corp., 4th Ed., § 315, note 1, p. 393: State v. Ferguson, 33 N. H., 424; Husen v. City of Rock Island, 128 111., 465; Clark v. South Bend, 85 Ind., 277. Chapter 235 of the Public Acts of 1895 fixes no standard at all, and that claim of the defendant is wholly without foundation. The ordinance and the statute do not cover the same ground. The ordinance (§§ 3 and 6), fixes a standard of purity for milk to be sold in Bridgeport; the statute does not. State v. Flint, 63 Conn., 248.</p>

Petition for a writ of habeas corpus, brought to the Superior Court in New Haven County and tried to the court, 'Shumway, J.; facts found and judgment rendered in favor of the respondent, and appeal by the petitioner for alleged errors in the rulings of the court. A oretended indictment, to which none of the grand jurors ever consented, or agreed to present as a true bill, is illegal and void, and gave the court no jurisdiction whatever.

<p>A trustee holding property lawfully and unconditionally conveyed to it in trust for a public charitable use, cannot reconvey such property to the grantor or donor, without a violation of its duty as such trustee.</p> <p>The parish of Christ Church in New Haven, in order to obtain a sum of money given to it by Trinity Church upon that condition, conveyed a certain piece of land with its church edifice and rectory, to the Trustees of Donations and Bequests for Church Purposes, in trust for the sole use and benefit of the grantor, but without liability to debts or incumbrances of any kind, so long as the grantor should exist and be in union with the convention of the diocese of Connecticut and in communion with the Protestant Episcopal Church of the United States; and thereafter, in trust for the sole benefit and use of said Trinity Church, so long as it should remain in like communion; and then, to hold the property for such uses as would most nearly accomplish the object of the trust and promote the interests of the Protestant Episcopal Church generally. The trustee was authorized by charter to acquire and hold property given to it for the uses specified in the conveyance, and duly accepted the trust. Its charter also authorized it to sell or otherwise dispose of the property held by it in trust, with the consent of the Diocesan' Convention; and this body, upon the petition of Christ and Trinity Churches, gave its consent to a reconveyance of the property by the trustee to Christ Church. Prior to such consent Trinity Church had released to Christ Church any interest it had in the property by virtue of the trust deed. Upon suits, one of which was brought by Christ Church to compel the Trustees of Donations and Bequests for Church Purposes jto execute a deed of reconveyance, and the other by the trustee for advice as to its duty in the premises, it was held :—</p> <p>1. That the claim of Christ Church that the trust deed, although absolute in form, was in fact a mortgage to secure the re-payment of a loan advanced by Trinity Church, was expressly contradicted by the finding and by the legal conclusion of the trial court based thereon.</p> <p>2. That evidence of the statements and representations made by members of Christ Church parish at the meeting which authorized the execution of the trust deed, in support of the foregoing claim, was properly excluded by the trial court as irrelevant to any fact in issue.</p> <p>3. That the objects for which the property was conveyed were charitable, and upon the acceptence of the deed the property became, by force of § 2951 of the General Statutes, a trust fund forever appropriated to the uses for which it had been granted.</p> <p>4. That the limitation of one trust upon another, as specified in the deed, was not unlawful, there being but one trustee and but one charitable use.</p> <p>5. That the release by Trinity Church, if of any effect whatever upon the trust, did not invalidate it; nor did it operate as a renunciation of the contingent interest of Trinity Church.</p> <p>6. That the use specified in the trust deed was not so indefinite as to be' void for uncertainty.</p> <p>7 That the authority given the trustee by its charter, to sell or otherwise dispose of the estate held by it in trust, with the consent of the Diocesan Convention, related merely to a change in the form of the trust fund, and did not authorize a violation or termination of the specific trust contained in the trust deed.</p> <p>8. That the trust was valid and continued under the protection of the law until its purposes had been accomplished, and could not be lawfully terminated by the agreement of the parties before the court.</p>

<p>In an action to recover rent, the defendant alleged in the first paragraph of her defense that she had occupied the premises under a “ special agreement ” between herself and the plaintiff. Subsequent paragraphs averred that at the time the premises were leased, the plaintiff promised and agreed to make certain repairs, that he had broken this agreement, and thereby the defendant’s merchandise and household goods had been damaged to an amount greatly in excess of the rent due. The plaintiff admitted the truth of the first paragraph, but denied all the other allegations of the defense. Upon the trial it was substantially agreed that the lease was to be for a term of years, and that after the defendant had taken possession a lease for this term was presented to her which she failed to sign; hut that she continued to occupy and pay the stipulated monthly rent (except th at for the last month) for eighteen or twenty months. The trial court instructed the jury that inasmuch as the original agreement for a term of years was by parol, it could not he enforced, and the lease had become, by virtue of § 2967 of the General Statutes, one from month to month; and that any agreement of the plaintiff as to repairs would not extend beyond one month. Held that this instruction, which practically gave the case to the plaintiff, required the jury to try the cause upon an issue not embraced by the pleadings, and to sustain a claim of the plaintiff inconsistent with his own admission. Held, also, that as the time the lease was to run was fixed by the parties, it could not be said to fall within the fair intent and meaning of the statute as a lease in which no termination was agreed upon, and that the charge was erroneous for this reason.</p> <p>Where the lessee has taken possession under such a lease as existed in the case at bar, it creates a tenancy at will, which by implication is held to be a tenancy from year to year; and in such case a contract made at the time of letting, between the lessor and tenant, may constitute throughout the tenant’s possession a valid special agreement under which the occupancy is held.</p> <p>To constitute a lease from month to month, under § 2967 of the General Statutes, three things are requisite: a parol lease, a monthly rent, and no agreed time for the termination of the lease.</p>

Action to recover the balance of an account claimed to he due on a building contract, brought to the Court of Common Pleas in New Haven County and tried to the jury, before Hotchkiss, J.; verdict and judgment for the plaintiff, and appeal by the defendant for alleged errors'in the rulings and charge of the court. In view of the length of the record and the unimportance of many of the questions therein raised, it is unnecessary to reproduce it here.

Prosecution for violation of the liquor law, brought originally to the City Court of Ansonia and thence hy the defendant’s appeal to the Criminal Court of Common Pleas for New Haven County, where the case was tried to the jury, before Hotchkiss, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of the court.

Suit to foreclose a mortgage of real estate and for an injunction to restrain the defendant from cutting wood on the mortgaged premises ; brought to the Court of Common Pleas in New Haven County and tried'to the court, Hotchkiss, J.; facts found and judgment rendered for the defendant upon his cross-complaint, and appeal by the plaintiff for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action of scire facias brought originally before a justice of the peace, and thence by the defendant’s appeal to the Court of Common Pleas in Fairfield County, where the case was tried to the court, Qurtis J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The opinion states the case.

Action to recover damages for personal injuries sustained through the alleged negligence of the defendant, brought to the Court of Common Pleas in Fairfield County and heard in damages to the court, Curtis, J.; facts found and judgment rendered for the plaintiff for $350, and appeal by the defendant for alleged errors in the rulings of the court.